Stifling Opposition:

An Analysis of the Approach of the Fiji Government after the 2006 Coup   
 ANU Discussion paper by Mosmi Bhim, formerly of the CCF



This paper is in pdf format and  would lose much by conversion into txt.  This is the link to download the full paper. You should read it before reading Eager Beaver's response below.

I replied to Mosmi's invitation to publish the paper with:


Bula Mosmi,  Thank you for the paper.  I’ve only read it quickly so far but it would appear you did not solicitor the opinions of a range of lawyers (and others) before you left Fiji.  I find this strange and disturbing in an academic paper. This is not to approve Government restrictions but to see them, more accurately, in the context of how and why they happened.  You say little about contexts.  Without these caveats, the paper becomes a polemic, more in line with Jon Fraenkel’s articles than with Brij’s." 

To which Mosmi replied:

Dear Croz,
 No I did not seek opinion from a range of lawyers because this paper is supposed to be my own analysis. The views expressed in this paper are my own through information I gathered from research. They do not reflect the views of Jon Fraenkel or Brij Lal, even if you would like to say so.

Croz, I am also a bit disappointed by your response as it shows you are biased towards your own views.

Furthermore, I have never enrolled for any studies at ANU. I have done all my studies at USP and my entire work life has been in Fiji. My only association with ANU is I took up a six-week research scholarship there with the SSGM in 2010, to research and write this paper which has been published by SSGM.

Your reponse to my paper reveals that you are not aware of the realities of the type of suppression Fiji's people are living in.
 The repression here means that people don't even feel free to research and write opinion papers or academic papers on political issues.
 Mosmi


I apologize for my dig about Jonathon.  Mosmi is invited to respond to the response.

Legal Omissions and Corrections in Stifling Opposition Paper
By 'Eager Beaver"

The paper in relation to the Crimes Decree errs towards dishonesty in that it fails to explain that the sedition offences are identical to the old Penal Code definition of sedition. Also there is no defence of "good faith" in relation to the law of treason. There is no defence of "good faith" anywhere in the Crimes Decree except for property offences such as theft which has a defence of "honest claim of right".

 I think the summary is also flawed because there is a shallow assumption that the Crimes Decree is all new, when in fact large portions of it, including the treason offences were in the common law and  Penal Code.

Treason itself simply restates the law as it was under the common law, as stated by Wilson J in Timoci Silatolu and Josefa Nata v State in pre-2006 days. The test is whether a person "levies war" against the state, which includes overt acts to remove the governemt, kill the head of State, remove the Constitution and remove parliament. This case which is the most well known treason case in Fiji was not referred to in the article so I assume the writer has no knowledge of it.The law has not changed in its definition, nor has the penalty. It was life imprisonment under the Penal Code, as amended in 2001, and remains life imprisonment.

The laws on sedition including the defences of legitimate comment to recommend change to the government are exactly the same as they were. Yet the writer suggests that they are new and the penalties have increased. Not true.

There are many features of the Crimes Decree to which she does not refer.

The corruption provisions which are now similar to the Hong Kong legislation, the rape laws which are now much more geneder sensitive, the law abolishing spousal privilege and corroboration, the law on theft and fraud and the laws on conspiracy. All of these are directly relevant to the issues of governance in Fiji. Certainly gender equality, and the treatment of the vulnerable in court are governance issues.Yet she does not refer to them.

As for the DPP's Office record on corruption cases, the issue is not just effective prosecution but effective laws, effective investigation and effective prosecution. FICAC is modelled on Hong Kong's ICAC which is generally considered to be the success story for fighting corruption in the world. The receipe? Political will, strong corruption laws with a shift in the burden of proof on lawful authority and reasonable excuse, an anti-corruption body which can investigate and prosecute, a high level of expertise in corruption so that the body is not distracted by murder and rape prosecutions, and a public education role in ensuring the public understands that corruption is against the law and to be discouraged. FICAC has these qualities but it is too early to say whether it will be effective in reducing the incidence of corruption in Fiji.

In relation to the Legal Practitioners Decree, the lawyers who were disciplined were disciplined not on complaints of the governmet but of their clients. Most were complaints against the lawyers for over charging, or conflict of interest. I believe that these matters are acts which would lead to siscipline antywhere in the world. The writer glosses over the substance of the complaints. She should have dealt with them, since she alleges that the lawyers were being silenced. In fact, Shah Singh Naco Lajendra and Sheikh Shah were not known to be either anti or pro governemt.  Haroon Shah defended the soldiers charged with murder in the Lautoka High Court in 2009.Surprisingly the writer does not deal with how complaints against lawyers were dealt with prior to the Decree, and whether the Decree introduces a system similar to Australia or New Zealand.

As for Munro Leys being denied government work, surely it is the client's choice who will get a brief? If a law firm is known to be anti-governemt, how is governemt to trust that firm? It is a bit like telling me to go to a lawyer for a divorce, when I know that lawyer has been bad-mouthing me with my soon-to-be ex-wife!

As for disciplining lawyers generally, the decisions of the Commission are worth reading. They are not yet in the public domain. The Fiji Independent Legal Services Commission website is under construction but the decisions are circulated to all practising lawyers.*

I have only commented on a few things in the report but, overall and regrettably, I find it shallow, lacking in  analysis. and overly dependent  on only one version of the facts. In relation to the Crimes Decree, it is also dishonest.
 
My comment.  Mosmi and Eager Beaver may not be as far apart as they may seem, although there's obviously a wide difference of opinion.  Mosmi is recording how she sees the laws applied in several contexts; Eager Beaver reports mainly on legal decisions  arising from the laws.


-oOo-


*  Nazhat Shameem's paper Legal Ethics and Rules of Professional Responsibility in Fiji:An analysis of the effectiveness of the rules of professional ethics for lawyers in Fiji (especially page 10 onwards) is well worth reading in this regard. Click here to download the review, or read it on lawfiji.com under News and Views. It was presented to a law workshop for new lawyers in January.

.

Comments

Response to Eager Beaver said…
Good effort on the part of Mosmi. She has taken a clear stand that this regime is illegal. The context Croz is talking about does not justify, and pales in significane to the human rights breaches, including torture and cold-blooded murder (the other side guilty of this too) that this regime has committed, taking Fiji to the dark side. Context, Croz, should not be used to mask this.

Just as Croz is prepared to overlook some context to support his stand, so has Mosmi. So its like the pot calling the kettle black.

All the fanciful laws passed by the AG is not worth the paper it is written on in when Bainimarama can claim backpay of close to 100k going back 20 yrs. This, I suppose, is 'clean-up' Bainimarama and Aiyaz style. And that great anti-corruption crusader Mahen 'Honest man' Chaudhry signed the dotted line and approved the backpay. How many of us can get backpay like that?

The analysis by Eager Beaver is rather fanciful, and myopic and lacks context given what is going on. Without transparency no one knows what is really happening. Given the precedence from around the world, we should fear the worst.

So before Eager Beaver starts feeling too pleased with him/her self, his piece it is for all intents and purposes rather vacuous.

As an aside, former Methodist Church of Fiji president, Reverend Manasa Lasaro, is not only a vocal critic as mentioned by Mosmi but a dangerous subversive who has never really been investigated properly.
Response to Mosmi said…
Good effort on the part of Mosmi. She has taken a clear stand that this regime is illegal. The context Croz is talking about does not justify, and pales in significane to the human rights breaches, including torture and cold-blooded murder (the other side guilty of this too) that this regime has committed, taking Fiji to the dark side. Context, Croz, should not be used to mask this.

Just as Croz is prepared to overlook some context to support his stand, so has Mosmi. So its like the pot calling the kettle black.

All the fanciful laws passed by the AG is not worth the paper it is written on in when Bainimarama can claim backpay of close to 100k going back 20 yrs. This, I suppose, is 'clean-up' Bainimarama and Aiyaz style. And that great anti-corruption crusader Mahen 'Honest man' Chaudhry signed the dotted line and approved the backpay. How many of us can get backpay like that?

The analysis by Eager Beaver is rather fanciful, and myopic and lacks context given what is going on. Without transparency no one knows what is really happening. Given the precedence from around the world, we should fear the worst.

So before Eager Beaver starts feeling too pleased with him/her self, his piece it is for all intents and purposes rather vacuous.

As an aside, former Methodist Church of Fiji president, Reverend Manasa Lasaro, is not only a vocal critic as mentioned by Mosmi but a dangerous subversive who has never really been investigated properly and he should be watched.
Cicero said…
It is insufficient for the decisions of the Independent Legal Services Commission to be only available to "practising lawyers".

This must be more than apparent? Many people need and wish to access these decisions (paid for in their entirety by Public Money) for a variety of valid reasons: professional purposes. Transparency and freedom of access are essential.

We are entitled to ask:

Whatever happened to all the felicitous harping about four years ago on :e-governance and e-access to Government? This ought also to apply to decisions handed down by all Commissions. It should be self-evident.

With regard to the proposed Constitutional Commission and its discussions: why are citizens and voters of Fiji not entitled as their South African counterparts have been since 1994 to contribute to the discussions On-Line? The Constitutional Court of South Africa was funded to the tune of US$40m to permit access to each and every qualified voter. This became clear in our initial consultations with the President of the South African Constitutional Court when he visited Fiji (Suva) in 1996. I hope I have recalled the year correctly but the CCF and Jone Dakuvula will recall.
Anonymous said…
As far as the dangerous subversive is concerned, we quite agree.

Just turned up the other day almost on the doorstep 'in mufti'.

Well, who would have thought?
Oh Come On said…
In total agreement with Cicero. These lawyers should be unmasked for ripping off the public for years. Over charging is only one thing. What about not turning up to court, never telling their clients what has happened to the case, and not filing proper papers in time, dragging on the cases for years? The Small Claims Court works well because- guess what? No lawyers! The Law Society covered up for the lawyers for years. Now they are getting proper justice. It's too easy to say that they are being silenced for being anti government! Come on Mosmi! Even you can't be that blind to the reputation the lawyers have in Fiji?
Lashings of jam and cream! said…
There is a case known to me of someone who has worked for our family with unerring loyalty for fifteen years. His case is now coming on for three full years. He paid the sum of $1,000 cash (in error because he did not ask for prior advice) and received no receipt until told to go back and insist.

This case is still on-going. He is never represented in Court by the Managing partner in this Law Firm. He is never told of the date of next mention. He has never yet been given any idea of when a hearing will take place. He just goes on and on and on appearing every month or so at the whim of his lawyer and the process. It is scandalous. He has been advised to pay no more money. The lawyer is very well known with many more lucrative clients (that's obvious).

How can people live with themselves this way? Humiliating and stamping upon the very people who provide their bread and butter? But now they want jam and cream and the organised criminals provide that. Lashings of it!
Haram Paisa and forensics said…
The most sought after and remunerated profession soon in Fiji will be that of FORENSICS:

Forensic Accounting

Forensic Medicine and Chemistry

Why? Because so many lawyers have disgraced their calling. And because Forensic Accounting is required to 'out' the failures of governance and the salting away of 'filthy lucre'. The Haram Paisa shovelled millions if not billions over the past fifteen years. Aspirational parents should begin grooming their children now for a career which will last for decades.
Anonymous said…
Any defence proferred in favor of lawyers and the Fiji Law Society is criminal. The Fiji Law Society sired some of the biggest criminals who also served as the President of the Fiji Law Society. Public trust and faith in Fiji's lawyers and the Society to which they were affiliated was nil. It was only a race to rob the clients with the blessing of the Fiji Law Society. Mosmi is naive on this count.
Anonymous said…
Any defence proferred in favor of lawyers and the Fiji Law Society is criminal. The Fiji Law Society sired some of the biggest criminals who also served as the President of the Fiji Law Society. Public trust and faith in Fiji's lawyers and the Society to which they were affiliated was nil. It was only a race to rob the clients with the blessing of the Fiji Law Society. Mosmi is naive on this count.

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