FIJI.PM

Again I think a simple test of "reasonableness" is sufficient as far as ruling on this contract is concerned. I think it is pretty obvious that had somebody sought clarification of such a scenario as this prior to the event, the ruling would have been that this event does not fulfil the contract. The basic proposition of the contract is would FB be replaced in 2009? That clearly has not happened. Only FB has held the job. He still holds the job. Simple.

Judging Criteria

This contract will close at $1 if, before 1 January 2010, Frank Bainimarama:

1. Loses his position as Interim Prime Minister of Fiji by any means, subject to clauses 3; or

He has lost the position.

By court order. [www.radiofiji.com.fj]

By his own admission. [www.abc.net.au]

By concession. [www.radioaustralianews.net.au]

2. Dies in office

This might simplify things.

This contract is unaffected by the following:

3.1 Frank Bainimarama exchanges the position of Interim Prime Minister for Prime Minister

He hasn't exchanged anything so this does not apply.

3.2 Frank Bainimarama loses his position as the President of Fiji

Does not apply.

3.3 Elections are held and Frank Bainimarama retains his position as Prime Minister after the election.

Does not apply.

For the purposes of this contract, Frank Bainimarama must lose his position as Interim Prime Minister of Fiji before 12am 1 January 2010 Fiji time. This contract pays out based on the date a change in Frank Bainimarama's position takes effect.

Well, this is certainly within the timeframe.

In the event elections are held and Frank Bainimarama either does not stand or stands and does not win, and absent his prior resignation, his position as Interim Prime Minister (or Prime Minister) will be considered to end on the date and time his successor is sworn in. If that is after 1 January 2010 then this contract will close at $0.

This contract is unaffected by suspension or illness unless that results in the appointment of a permanent replacement for the position of Interim Prime minister or Prime Minister. This contract pays out based on the date that appointment takes effect.

The courts action effectively suspend his role as Interim Prime Minister and the President has, rightly or wrongly, reappointed him to the position. It follows that, on the date the appointment takes effect, this contract should be paid out at $1 as having been fulfilled. There is nothing in the Judging Criteria that requires the actions of the President to be legal or that states Frank Bainimarama cannot be reappointed.

By whatever means, one must lose a position, to be able to be reappointed to it.

Update 11/4/09: Added link to forum

No it's not whether he would be replaced Dibbo, it's whether he would lose his position "by any means".

The only exceptions to "by any means" were suspension and illness and then only if he was replaced by someone else. In other word, the replacement only comes into effect if it's a suspension or an illness.

When the court ruled his position as illegal, he lost it.

If that doesn't satisfy you, the president proceeded to repeal the constitution, which means the position of Prime Minister (interim or permanent) didn't even exist anymore, never mind it being held by Bainimarama.

The court didn't suspend him, otherwise the President wouldn't have needed to throw out the constitution to re-appoint him.

Either way though, when the constitution was revoked the position ceased to exist, so he must have lost it.

Agree entirely. As Oracle points out, he lost the position in a number of ways.

ORACLE's logic is faultless.

Legs Wrote:
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> ORACLE's logic is faultless.

I was about 100 short and cleared my short position (banked my losses) when it was up around 80; I have zero stake currently in this contract.

I don't agree with Oracle here. It now looks to me like the Courts tried a gambit that failed, with Bainimarama then reminding everyone who runs the army: the "step-down" was a move letting the President come back in to "reappoint" - he alternatively could have just declared martial law. There was no real loss of power.

Tough call for the contract judges here. I think the spirit of the contract suggests that it can't yet cash out at $1, but I'll go with whatever Matt's judges come up with.

The Judging Criteria requires a "loss of position" not, a "loss of power". To assess a "loss of power" requires being able to read inside the heads of those directly involved. None of us are capable of that.

For instance, we do not know that President Ratu Josefa Iloilo has not simply decided that Frank Bainimarama is the most suitable person for the position. Having abrogated the constitution the President may feel he now has the legal right to reappoint Frank Bainimarama to the position of Interim Prime Minister.

It is not good enough to have this settled on the basis of what we "believe".

This has to be settled on the basis of visible evidence and that shows clearly that Frank Bainimarama lost the position of Interim Prime Minister.

I stand firmly to my point that Frank Bainimarama cannot have been reappointed to a position he already held. He had to lose it first.

In any case, a loss of power did occur for a number of hours.

Here's the President's address to the nation, in which he notes:
- the Court of Appeal ruled that the interim government (and therefore the interim Prime Ministership) was invalid;
- there was no government in place after the ruling;
- the 1997 Constitution (which establishes the office of Prime Minister) is abrogated - so the position cannot exist;
- he has made himself Head of State, which would include the powers and position of the Prime Minister; and
- he will appoint a new interim government shortly.

Any one of those statements surely must be enough for this to close at $1.

what gr said.

Why wouldn't the condition on the last paragraph hold:

"This contract is unaffected by suspension or illness unless that results in the appointment of a permanent replacement for the position of Interim Prime minister or Prime Minister. This contract pays out based on the date that appointment takes effect."

my only reserve, against this closing at $1, is that the entire episode was an elaborate side show to bypass law without ever actually satisfying any law.

For example, if he was never legally Interim PM and still isn't legally Interim PM then did he really lose his position? Or was this just an elaborate sideshow in the name of propaganda, in which case for all intents and purposes this contract isn't satisfied.

You all must admit its bearing awfully close to theater. Bainimarama's comments can be viewed as a series of straight faced jokes. From the president praising FB government in the opening of his address, to FB stating he was spending the next 5 years back at his old military post, to FB saying he hadn't advised the president and didn't know who he was going to pick.

Does a loss of position need to have any legal basis, and if it is still illegally held does this constitute a change?

I would say that if the position was void from the start of his appointment (even if it took the Court of Appeal to say it), then it should still close out at $1: he lost his "position" as de facto interim Prime Minister when the court ruling came out (even if he was not PM in law to begin with).

Quote

he lost his "position" as de facto interim Prime Minister when the court ruling came out

i'm not sure that its that simple. I think the court advice was that the President appoint a caretaker PM who was to dissolve parliament.

ltgorman Wrote:
-------------------------------------------------------
> my only reserve, against this closing at $1, is
> that the entire episode was an elaborate side show
> to bypass law without ever actually satisfying any
> law.
>
> For example, if he was never legally Interim PM
> and still isn't legally Interim PM then did he
> really lose his position? Or was this just an
> elaborate sideshow in the name of propaganda, in
> which case for all intents and purposes this
> contract isn't satisfied.
>
> You all must admit its bearing awfully close to
> theater. Bainimarama's comments can be viewed as a
> series of straight faced jokes. From the president
> praising FB government in the opening of his
> address, to FB stating he was spending the next 5
> years back at his old military post, to FB saying
> he hadn't advised the president and didn't know
> who he was going to pick.
>
> Does a loss of position need to have any legal
> basis, and if it is still illegally held does this
> constitute a change?

I believe Itgorman, that your last paragraph puts the issue in perspective.

"Does a loss of position need to have any legal basis," well no, not in terms of the contract.

"and if it is still illegally held does this constitute a change? " he does not still hold the position as "still" implies continuity, he lost it, then by reappointment he regained it.

Legality is not a factor that alters whether something happened or not. You cannot have it, that this event occurred if it was legal and did not occur if it was illegal.

There is nothing in the Judging Criteria that stipulates that any part of the whole situation requires legality.

Whether a sideshow or otherwise, whether legal or illegal, the terms of the Judging Criteria have been met and so, it should close accordingly at $1.

A number of different opinions, iam out of politics, going into oil.

The more I think about this, the more I think one can only conclude the contract is unfulfilled (note I benefit from that decision, so have an interest in the outcome). The reason is a classic case of substance over form.

NZ law, especially commercial law, now looks at substance over form. IRD squash all sorts of little rorts every day where they ignore the form, to look at the underlying substance.

The substance of Fiji is that the Commodore has ruled Fiji since his coup. He has been in power throughout, and has remained in power. He has chosen to call himself Interim PM. He could choose to call himself Grand Poobah. But the reality is he is ruling Fiji, because he has the guns.

The President has no more power to suspend the Constitution, sack Judges, and seemingly reappoint the Commodore than Joe Average. Since the coup, the President's only power has come from the Commodore. Likewise the courts only have power that the Commodore has been willing to give them. And as we have seen, he has taken that power away.

If you look at the form, not the substance, the Commodore has not relinquished power at any stage.

ltgorman Wrote:
-------------------------------------------------------
> he lost his "position" as de facto interim Prime
> Minister when the court ruling came out
>
> i'm not sure that its that simple. I think the
> court advice was that the President appoint a
> caretaker PM who was to dissolve parliament.


The President and Bainimarama agreed that the effect of the Court decision was that there was no more Interim Prime Minister. See my link to the President's address to the nation, above.

Also, here is a summary of the judgment:

[www.fijilive.com]

There are declarations to the effect that Bainimarama's initial assumption of power and appointment as Interim Prime Minister were invalid, and that the President should appoint a caretaker Prime Minister.

My point is that any position that Bainimarama held (which we can probably describe as a de facto rather than de jure position as Interim Prime Minister) was lost due to a lack of validity, and the President's (brief) assumption of all executive power. The Court has told the President to appoint a "caretaker" (not Interim) Prime Minister, which he has done.

At time of writing I have no stake in this contract.

I agree that it should close at $1, had it been worded differently (eg "Bainimarama to not hold the piosition of Prime Minister on XYZ date) then it may have been a different story.

I don't buy in to the argument about what the "spirit of the contract" may or may not have been. If you are going to retain credibiility you need to stick to how it is written.

Rocketman, think of the parallel case that happened a while back over at InTrade. They ran a contract based on whether North Korea successfully would launch a missile that would clear the Sea of Japan (if I recall correctly) as verified by DoD or State Department. This was a couple years back. North Korea launched the missile, it clearly satisfied the conditions of the contract, but neither the US State Dept nor the DoD put out a release confirming such. InTrade then closed the contract as not having been satisfied because the precise wording of the contract required both the launch and the subsequent verification by State or DoD. In my view, this was very wrong. The intent of the contract was "will North Korea launch missiles", not "will the State department be bothered to put out a press release if NK launches".

Again, I have no position on this contract. But I'm inclined to agree with DPF. The intent of the contract here is does Bainimarama keep power. That's clear from that the contract doesn't close at 1 if Bainimarama decides to change his title to Prime Minister. I'd expect that had he decided to rename the position as being "Grand PooBah Supremo" but nothing else changed, it would be somewhat ridiculous to close out at $1 just 'cause he decided to augment his title.

To my mind, this contract should close at $1 IF Bainimarama really was out of power for those few hours. If he wasn't, then I'd think it's still live.

ECrampton I feel I should just note that I have read several times that people are referring to Bainimarama "loosing power", yet the word "power' is not mentioned in the contract at all. The short description is "Frank Bainimarama to lose position as Interim Prime Minister of Fiji in 2009". The contract is whether he will lose position as "Interim Prime Minister of Fiji" and does not refer to any power he may or may not hold. The contract must close at $1.

Admin - is a ruling on this contract anywhere on the horizon????

Dibbo Wrote:
-------------------------------------------------------
> Admin - is a ruling on this contract anywhere on
> the horizon????


Well Dibbo, if the contract is to close at $0 then it can't be before midnight 31-12-09. If at $1, which it should be, then it should already be closed.

As nothing in clauses 3 appear to present any reason for it not to close at $1, will Admin please explain the meaning of "1. Loses his position as Interim Prime Minister of Fiji by any means," really means?

Oracle, admin stated before that the contract will remain open at least until they can decide with their experts what the outcome is. It may still close at $1 if they decide this is the case, and this may happen tomorrow, or next week. Until they have decided, we wait...

Folks, an update. The Easter break runs longer for some people than others, unfortunately, and I am scheduled to speak to a constitutional authority later today. We expect to make a decision either today or Monday.

I've just taken a small short position (liquidity constrained) based on reporting in The Economist, quoted below. Too much uncertainty to put much on this one for now even if I weren't liquidity constrained, but still looks to me like he never really lost the job at all.

Quote

FLEETINGLY, on April 10th, Fiji’s armed forces commander, Frank Bainimarama, seemed to lose his other job as prime minister. President Ratu Josefa Iloilo announced the abrogation of the country’s constitution, the sacking of the judiciary and the postponement of elections until 2014. Calling the president’s decision deeply regrettable, Mr Bainimarama resigned and said he was heading back to barracks. Yet the next day, he and his cabinet were back in their offices, as if nothing had happened. Belying the pretence of normalcy, however, soldiers were sent into the newsrooms of the country’s newspapers, and television and radio stations to prevent “negative” publicity; several foreign journalists were booted out of the country.

Mr Bainimarama said he had nothing to do with Mr Iloilo’s decision. In truth, the 88-year old head of state is a puppet of the army, which is said to dose him with medication before he appears on television. Mr Bainimarama also regularly claims to be subject to the dictates of a shadowy military council. But in reality he is in charge, having purged his opponents and cultivated loyalty through rapid promotions and big pay rises for both officers and rank-and-file. Even so, at press conferences held after the abrogation of the constitution, he judiciously chose to be flanked by his most loyal naval officers, not the generals.

i can believe the arguments for closing either way. not willing to gamble on this one.

By the wording of the contract if he lost his job, albeit "fleetingly" than the contract has to close at 1. As I argued earlier, I don't think that was the intent of the contract when set up but the more I think about it the more I'm persuaded that we have to go by the letter of what is written in order to avoid the subjective as much as possible. So I've turned around and gone small long.

Most of us have been focusing on whether or not Bainimarama lost his position during those few hours when the Court ruling came out (and I strongly suggest that he did).

Another angle is that, regardless of what happened then, he has lost the position now - and traded up to a new one of "Interim Dictator":

[www.stuff.co.nz]

"Fiji dictator Voreqe Bainimarama has claimed his new "legal order" is the future of the island nation.

In an extraordinary speech to civil servants this morning he said that with the abrogation of the constitution "a new Legal Order has been created.

In speech notes provided by his office, he said: "A new Legal Order means there is no longer the old.

"There is no need to speculate as to what happened, how it happened, what should have happened or what should not have happened.

"What is, is now, and the future," Bainimarama said.

He said his government is not an interim one or a caretaker one – it is in office until September 2014."