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Speight May Face Treason, Kidnapping Charges

25 May 2000: 12.30pm
By Peter Emberson
USP Journalism Programme

SUVA: Rebel leader George Speight is most likely to be tried for treason and possible crimes such as mutiny and kidnapping when the hostage crisis is resolved, believes a law professor.

Pacific Journalism Online interviewed Professor Robert Hughes, head of the Emalus Law campus in Vanuatu, by email today and he said treason was the most obvious charge.

"It is an offence under section 50 of the Penal Code of Fiji and carries a mandatory death sentence. There are numerous other possible offences such as mutiny, kidnapping and so on which do not carry the death penalty," Prof Hughes said.

Prof Hughes said where the commission of criminal offences was involved, the crimes would be dealt with by normal procedures of charging the person before the courts in Fiji.

In this case, Prof Hughes said it would involve the High Court.

Asked whether President Ratu Sir Kamisese Mara had the authority to bar elected Prime Minister Mahendra Chaudhry - who has been held captive by rebel gunmen in Parliament since last Friday - from taking up office when the crisiis is resolved, he said the provision relating to the powers of the President in a state of emergency were contained in section 187 of the Constitution:

187.-(1) The Parliament may make a law conferring power on the President, acting on the advice of the Cabinet, to proclaim a state of emergency in Fiji, or in a part of Fiji, in such circumstances as the law prescribes. (2) The law may include provisions conferring on the President the power to make regulations relating to the state of emergency.
The Fiji Parliament enacted the Emergency Powers Act in 1998 pursuant to this provision.

"In some cases the proclamation requires confirmation by the Parliament before it has effect. Furthermore, the other provisions of the constitution suggest that such a proclamation can be disallowed by the Parliament," Professor Hughes said.

"The President cannot determine who the members of the government will be pursuant to the emergency power. Of course, the President can make suggestions to resolve the crisis (including suggestions as to who should be the Prime Minister) and that is what is being done.

"So far as the appointment of a Prime Minister goes, this power is vested in the President as the head of executive government under section 98 of the Constitution which says:

98. The President, acting in his or her own judgment appoints as Prime Minister the member of the House of Representatives who, in the President's opinion, can form a government that has the confidence of the House of Representatives.
Prof Hughes said that provision seemed to give the President some discretion regarding the appointment of the Prime Minister.

It would seem that the President was not bound to accept the advice of the elected majority government which would be the case in many other Commonwealth jurisidictions, he said.

"The only requirement is that the President should form an opinion that this person can form a government. The President has of course already appointed Mr Chaudry as the Prime Minister," Prof Hughes said.

Pacific Journalism Online asked Prof Hughes whether Fiji's business community could sue Speight for damages.

He said this would certainly break new ground for Fiji in terms of its approach to the common law.

"It gets down to this whether Speight's actions can be held to be the cause of the losses of the businessmen," he said.

"There is no doubt that the actions can be considered unlawful but the issue is whether the occurence of the loss is legally attributable to Speight's actions or to those who directly perpetrated the looting and theft."

Prof Hughes said that he had some uncertainty about the prospects of success but the law in this area was always subject to change.


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