The UK 'Rule of Law Lost' Report and a Retort to the Report

POSTSCRIPT and   EXPLANATION. Several readers (see Comments) seem to think I wrote this article and, not unusually,  have accused me of saying things I have not said. To correct this misunderstaning, my main contribution was in publishing a summary of Dodds report by Eduardo Reyes, and in adding subheadings to the critique written by 'Sudden Shelley'  My only other contribution is shown in blue type.  These readers should read more carefully before they comment.

Late last year UK Law Society Charity chair Nigel Dodds made a covert trip to Fiji that concluded the rule of law was ‘lost.’  The report was written up by the Law Society feature editor Eduardo Reyes who said it would eventually be published on their website.  The main points of the report, as published by Reyes, were:

• Subterfuge was necessary because the Fiji government had refused entry to an International Bar Association delegation in 2009. [It has, however, extended an open invitatation to NZ Law Society President Jonathon Temms to visit Fiji and 'see for himself').
•  The rule of law no longer operates; the independence of the judiciary cannot be relied upon,  and there is no freedom of expression..
•  Attorney-general, Aiyaz Sayed-Khaiyum, has been central to ending the rule of law by limiting the power of the courts and ending the independence of legal sector regulation.
•  The Government depends on the appointment of judges and senior law officers from Sri Lanka on short-term contracts, but judges need security of tenure. .
• Fiji's largest commercial law firm, Munro Leys, once the government of Fiji’s main provider of legal services, no longer receives government business.
• The 2009 Administration of Justice Act removed the jurisdiction of the court to hear or determine a challenge to any government action.
• Fiji Law Society accreditation of lawyers has been replaced by government issuing practisi'ng certificates.

The article was published in full by the NZ Herald (click link here) and Minister McCully thought the report not very encouraging.  Unfortunately, he is unlikely to read this critique of the report that casts serious doubtrs on its sources and conclusions. Dodds made no approach to the Attorney-General, Government's legal spokesman, and apparently only contacted Graham Leung and possibly other members of the Fiji Law Society.

Critique: The Rule of Law Report by 
the UK Law Society Charity
By Sudden Shelley
 
The independence of the judiciary cannot be compromised by activist elitist groups who espouse political causes. In good times and in bad the judiciary’s role is not to take on governments, whether lawful or unlawful, but to rule on cases brought before the courts. This is a more pedestrian role. But as usual, activists and partisans wish to use the judiciary as a weapon of combat for their political ends.

Fiji Law Society claims not supported by UK and other regulation systems
The Fiji Law Society cannot claim that it is the rightful body for discipline or licensing of lawyers. Other jurisdictions including that of England and Wales have moved away from self-regulation to statutory regulation, which has included the creation of the position of Legal Complaints Ombudsman. This is similarly the case in Australia, New Zealand and other Commonwealth jurisdictions with minor variations.

Self-regulation has been rejected by a wide body of consumer associations, including the Consumer Council of Fiji. The public has demanded greater accountability from the legal profession, long held in low esteem in Fiji. The last Transparency International Global Perception Index on corruption in Fiji found that the majority of the public thought that the legal profession and the judiciary were corrupt [2005 Index]. Clearly there was an imperative need for change.


When the Independent Legal Services Commission was set up in 2009, it was discovered that over 400 complaints which had been filed with the Fiji Law Society lay unattended. Many such complaints had been brought against the current and four previous Presidents of the Law Society and Council members. When the Commission commenced sittings, many of the prosecutions were brought in relation to former Presidents. Thus the delay of the Society’s authorities in prosecuting these complaints went beyond the mere systemic. The public saw that the police, as it were, were unable to police themselves.

Hand over Complaints files, and the Dorsami Naidu case

The attitude of the Law Society will explain why the Chief Registrar had to insist on the handover of the Complaint files and why it was necessary for her to refer to her authority and powers under the Decree. The then President of the Fiji Law Society Mr. Dorsami Naidu has since been disciplined. This was not for any political offence, but for drawing up conveyancing documents in relation to the purchase of land without disclosing that the land was not owned by the vendor alone, but was owned jointly with another, and hence that under the transaction, the purchaser was only buying a half interest.

By the same reasoning UK judges support Government
The critics of the Independent Legal Services Commissioner assume support for the Government by virtue of taking up office. By this reasoning, every High Court Judge in England is to be taken to support the Government of the day, by virtue of the agreement to take up office. The critics do not condescend to any details nor do they refer to a specific judgment which they regard as defective. There is nothing of substance in this vague allegation, which appears to be a political rather than a law and justice comment.
The control of the professional prosecution unit for legal practitioners in the Chief Registrar’s Office is given to a civil servant and not to a politician. Previously, lawyers controlled lawyers at times when many of the previous presidents were politicians and members of Parliament. No complaints of this so-called independent procedure were then heard from these same international bodies of a lack of demonstrable political neutrality.

Josaia Naigulevu 'long-standing and respected'?
The Report refers to Josaia Naigulevu as “long-standing and respected”. This was the same person who used to hold prayer sessions within the confines of the DPP’s Office. Some of these were held to pray for success in appeals, and many members of the Office felt it prudent to be seen to attend if they wished to advance in the Office. As Acting DPP, Naigulevu swore an affidavit in the Chandrika Prasad case in which the courts eventually upheld the Constitution. Naigulevu chose to depose to active support for the illegal Qarase SDL regime, which had obtained power through the usurping civilian coup masters. Strangely, or perhaps not, the Acting DPP was made substantive DPP shortly thereafter. And this was the same Naigulevu who had concealed the fact that he had sworn such an affidavit in favour of the Respondent regime when answering questions from the International Criminal Court to which he had applied for the job of Deputy Prosecutor.

2000 coup files locked away
Many of the files dealing with crimes, including treason, committed at the time of the 2000 coup were locked away by Naigulevu for some years to gather dust. These were discovered by his successor who found that many of the prosecutions were by then time-barred. The alleged perpetrators thus did not have their day in court.

Favours exchanged?
This was the same Naigulevu who had a noisy and violent altercation with his then wife who lodged a formal complaint with the police that he had tried to strangle her. The medical evidence in the case confirmed injuries consistent with her complaint. However the Police Commissioner Mr. Andrew Hughes delayed the decision to lay charges. Meanwhile, the Director was requested to consider whether there was sufficient evidence to arrest Bainimarama in New Zealand on charges of sedition. The DPP did agree that there was sufficient evidence against Bainimarama, and the charges against the DPP were never laid.

Sri Lankans and racist overtones?
Whoever was the author of this Report is undoubtedly a racist. To say that the prosecution offices “became populated with Sri Lankans” follows the Nazi gripe that there were too many Jews populating Germany. These are the kind of comments we might expect from those hiding within the reeds of the internet, hoping to remain concealed whilst they spew out shameful pieces of racism. The racism is to be seen also in the derogatory comments on members of the judiciary who happen to be Sri Lankans. The issue for proper consideration is whether the judges sitting on the courts of Fiji are intellectually honest. A good idea as to whether that is so can be derived from a trawl through the judgments on the judicial website www.judiciary.gov.fj  or PACLII.

Go tell it to the Americans
The Commonwealth Law Conference sub-committee has no business poking its nose into the judicial appointment system of another jurisdiction, whether friendly or a member of the Commonwealth. Fiji might have been thought to have been both. Perhaps the Committee could give some soothing advice to the Americans, an ancient jurisdiction, on how they could de-politicise the US system of appointments to their Benches. But in reality it is none of their business. It is for the Americans to seek reform and to fix.

Incidentally what is wrong with the Chief Justice using a personal connection with a friendly Commonwealth country in order to provide necessary numbers for the Fiji Bench? The Fiji Bench has had connections with the Sri Lankan Bench since the early 1980’s. And was it out of order for the Fiji Bench to secure the services of expatriate English judges since before Cession in the 1870’s?

The recommendations in the Report appear to conflict with the rights of free expression, privacy, and free choice. The authors could benefit from a summer course on the decisions of the US Supreme Court on these matters over the last 50 years.

Graeme Leung's choice
Graeme Leung tells us he is not practising in Fiji at the moment. That was his decision alone. He was not joined by any other member of the Bar in that decision. All other members of the Bar applied for and received the issuance of their practicing certificates. No one has prevented Mr. Leung from obtaining a practicing certificate. The new procedures for scrutinizing the applications for practicing certificates have been instituted as a matter of consumer protection. Mr Leung’s decision can only be characterized as his own individual political statement.

It is clear the main informant (author?) of the Report is Graeme Leung, who was not noticeable for an interest in matters of professional ethics and practice when he was President of the Fiji Law Society. His history in the civil service did not shine forth with an interest in democratic values either. Forced to leave the DPP’s Office in 1985 over a financial impropriety, he became the Fiji Police Advisor, a position he held during the 1987 coup. He did not then think it right to leave Government service because of the nationalist and military coup, an occurrence of obvious unlawfulness. Instead he continued to work for the Attorney General’s Office until he was transferred to Fiji’s U.N. Embassy in New York as First Secretary. Eventually he fell out with the Ambassador and was recalled to the Attorney General’s Office, leaving behind a number of personal bills unpaid. They did not appear to be connected with official matters. Much mirth was created over two of the purchases – one was a “love seat” and the other, bills for telephone calls to a telephone sex service.


Leung: Conflict of interest?
At the time of the 2006 elections Leung was the Chairman of the Electoral Commission. At the same time he was President of the Fiji Law Society. Apart from the apparent conflict of roles, he did not earn a reputation as Chairman for looking into complaints about registration irregularities or other procedures leading up to the elections. It was said that he had tried to persuade Ratu Tevita Mara to stand in the elections for the SDL party. These improprieties colored his independence and explain his anger at the removal of the Qarase government in late 2006. He was very close to Ratu Joni Madraiwiwi the Vice President and thought from his daily visits to Government House, to be a close advisor.

Permits required since 1969
As a former prosecutor Leung would have known that the requirement for a permit for the assembly of persons numbering three or more came not from the Public Emergency Regulations 2009, but from section 8 of the Public Order Act 1969, a piece of legislation thought fitting for Fiji by the British colonial government. There was nothing remarkable about the Public Order Act which the British legislated for in many of their overseas possessions. The need to have a permit for a meeting long pre-dated the 2006 coup. This was known to Leung.

The Report demonstrates ..
This Report demonstrates how a flawed methodology and lack of objectivity at the outset leads to a skewed outcome. This was a Report written during a private visit by the (unrevealed) Chairman who met no one other than Leung’s close friends and associates. He has not revealed his sources, or whether he made any attempt to speak with sitting judges or members of the magistracy. He did not speak with the Chief Registrar or the Independent Legal Services Commissioner, to discuss the workings of the Legal Practitioners Decree.

PACLII not consulted
But as has been said before, the workings of the complaints procedure and of the judiciary can only properly be tested by examining closely the reasoning of the decisions of the Commissioner and of the judiciary. No such analysis has been done. It is noticeable that the regional website (PACLII) which carries the judgments of the judiciary has already had intimations that Australian government support may be withdrawn. Is it that our regional neighbors who maintain a hostile blockade do not wish to have evidence of a viable working and intellectually honest judiciary shown on the internet?

Professionalism lacking
The authors of the Report purport to propagate the ethos and work of a charity. One wonders what the Charity Commissioner would make of this Report. Is this genuine charitable work? Or sub-contracted political advocacy? There is little of professionalism here.

Comments

so predictable said…
Who is sudden shelley? Reading this it would not be too difficult to pick? Does sodden know what a human rights abusing military junta is? Spin this Walsh and Qorvis.
cool runnings said…
@so predictable
Is this the same human rights watcher, who turned a blind eye to racist SDL Ministers in Fiji?

Is it the same human rights watcher, that are funded by certain Governments who were complicit in Guantanamo prisons and the unmentionable acts?

Is it these same human rights watchers who remain silent when extraordinary rendition flights were granted over flight rights, landing rights in UK, EU, USA?
Ram Sami said…
Interesting article with a lot of "food for thought"
Gutter Press said…
Crosbie
Are you the author of this post? If not are you able to advise who it is? Or does the author wish, like the rest of us, to cloak themselves in anonymity?
Get Real said…
This is hardly a defence against the Dodd’s report. It is a criticism of what was wrong the Fiji Law Society and the DPP before the coup. Just because there were problems with the judiciary before 2006 does not mean that what replaced it is an improvement.

The regime has chosen a similar system to that in Australia with which to regulate the lawyers in Fiji. It works well in Australia where the necessary checks and balances are in place, and there is true independence between the registrar and the government. Here in Fiji those checks and balances do not exist. The independence between the judiciary and the executive does not exist. That is why the new of the regime is open to abuse.

I would like to give you a personal example of the problems caused by having the registrar license lawyers under the corrupt and the legal regime. At one point in 2011 I was concerned because the police were investigating me for allegedly saying things that were against the regime. The first lawyer I spoke to, listened to what I had to say and told me that he was unable to take my case, the reason being that he had already defended people against the regime and he had been warned if he wanted his licence renewed he needed to select his clients more carefully.

This regime makes a habit of introducing decrees that are based on laws in Western democratic countries and then twisting them for its own use. We only need look at the latest amendment decree giving the regime freedom to vilify its opponents at no legal risk. They say it is the same as parliamentary privilege but obviously it is not.

Croz, you have a very lopsided view of life in Fiji. I suspect the majority of your sources are all pro the dictator. I don't think you hear the everyday tales of living and doing business in Fiji as it exists today. You need to leave the comfort and safety of New Zealand and come and join us in Fiji. But you need to spend time with everybody and not just supporters of the regime, only then begin to appreciate what it is like to live in a dictatorship in the Pacific island.
Anonymous said…
OH Mr Walsh , what a very 'negative assesment' of this report. I notice you don't take your own advice and condemn those facts not in dispute about how this regime has created ecrees like newspapaers to make up law as it goes along with no, NO, mandate from anyone. Even the president was appointed illegally.I notice you have given up trying to give advice to the regime only to be ignored like everyone else, nor spend any time documenting the glaring abuses by the regime. No, you spend you time discrediting others, waiting for others to do the hard work rather than taking Min of Info press releases and spruiking them with the 'i know someone in the government who confirmed to me' line. It seems others are no the only ones who wait in the wings to tear down other work, gathered in difficult circumstances. Does tearing this report down make fiji a more positive place? You can't even bring yourself to criticise the regime without prostrating yourself first and making excuses for them second.(before they have even accepted they have done anything wrong!)
Anonymous said…
@ get real. First comes the doubt about your story from Croz, then he will rubbish you personally, then he will dig what his friends in the regime find for him about you and your histort,then he will find a reason why this is all good for fiji and ifg if it did happen he will be reassured by the PS of Info (Sharon SJ) that even if did happen it was an isolated incident and doubts your version. Just a word, he doesn't much like people being so impolite as to try to give examples that contradict his NZ version of Fijian military regime history. He must want exclusive rights to a book deal form the regime.
Anonymous said…
you speak of the 'invitation' the regime offers NGO's Law society UN etc when they tell you who you get to speak with in fiji and rubbish you if you go off piste? This regime don't accept anything is wrong, if you don't support them you are the enemy.
Croz Walsh said…
@ Gutter Press ... I'd also like to know.

@ Last Anonymous ... The invitation to the NZ Law Society put no constraints on who they could talkd to.
Anonymous said…
@ Croz , you mean now that all and sundry in the opposition are before the courts and the media population now well and truly cowed into submission? The media can't even bring itself to report anything about this regime that isn't from Ministry of Info. what is the further consequence of talking about this regime and their tactics to others, do you know?
It just gets murkier said…
Croz
So who is this Sudden Shelley?? It is not tweeting tina is it? Whoever it is they don't write very well?
Shoot the messenger said…
Why attack Croz? He is the messanger? All this rage is because the hate bloggers have been caught out on the side of the far from savoury.So now we know why the DPP's Office found a prima facie case of sedition against the PM. Is there any limit to the nastiness of 2006 politics? It seems like all the institutions were cooperating in a rule of law breakdown, and twisting the law for their own convenience and for politics.
Anonymous said…
The regime is like a frightened squid, putting up a screen of ink whenever it feels cornered. And all its syncophantic supporters can do is try to change the subject.

Graeme Leung for attorney-general!
Gutter Press said…
The critique by ‘Sudden Shelly’ opens the author to several of the same charges which he alleges apply to others.
“The independence of the judiciary cannot be compromised by activist elitist groups who espouse political causes. In good times and in bad the judiciary’s role is not to take on governments, whether lawful or unlawful, but to rule on cases brought before the courts. This is a more pedestrian role. But as usual, activists and partisans wish to use the judiciary as a weapon of combat for their political ends.”
This is sheer hubris. The most active elite group that espoused a political cause was the FMF which, in the cause of its chosen politics, removed the judiciary in 2009.

Whilst the replacement judiciary has worked to dispense the law independently in many areas, the fact that it is apparently too cowed to challenge the regime’s assertion that its decrees are inviolate, will obviously render it somewhat tainted in the eyes of many.

There’s definitely a feeling of vertigo induced by the author’s line “…the illegal Qarase SDL regime, which had obtained power through the usurping civilian coup masters.” Presumably it escaped his attention that an interim government had been formulated by Commodore Bainimarama in 2000 and that the SDL did not come into existence until just prior to the elections in 2001. Whatever illegality that might have existed in the author’s mind about Cmdr Bainimarama’s actions in 2000 came to an end in 2001 with an election.

The author alleges the critics do not refer to a specific judgment which they regard as defective – and then goes onto indulge in the same practice, citing unverified complaints, insinuating that no charges for assault were made in exchange for political favours, alleging that treasonous crimes had been time barred etc. One would think that such serious crimes couldn’t be time barred, but the unverified allegation is made nonetheless.

Sudden Shelly then makes the rather hysterical claim ‘The author of this report is undoubtedly a racist’, by comparing the report’s undeniably true statement
‘…The Fijian authorities had imported a number of judges from other jurisdictions, principally Sri Lanka, to replace those whom it had dismissed…’ with
‘the Nazi gripe that there were too many Jews populating Germany’. To say that the comparison is somewhat overwrought is putting it mildly.

The critique’s author dissembles about the importance of PER by claiming it is no more than an extension of the Public Order Act. Under PER I know of birthdays and christenings which were refused permission to be held with family members. I won’t give names out of respect for the privacy of those who were so ridiculously inconvenienced, however it’s probably safe to say that the British never felt so threatened as to invoke those powers for such minor occasions, nor did they ever arrest anyone for attempting to spread sedition by graffiti.

The lack of professionalism purportedly shown by Mr Dodd’s report is unmatched by the lack of professionalism shown by his evidently well educated criticiser.
Gutter Press said…
Continuing the critique of the critic ‘Sudden Shelly’ - he conveniently ignores Dodd’s report paragraph 13.3, which is profound in its implication for the international perception of the independence of our judicial system:
“The IBA Report of 2009 deals in detail with the finding that the then Justice Gates was found to have perjured himself by the Fiji Court of Appeal in connection with evidence given to it about a criminal trial over which he had presided in 2004.”
It’s small wonder that when such a profound lapse of professional judgement was ignored by his political masters (given the political overtones of that case - perhaps even rewarded) that the international and local legal fraternity questions whether or not Fiji’s judicial impartiality is unimpaired.

Finally, in an almost Icarusian level of hubris (and paranoia) Sudden Shelly conflates Australia’s possible withdrawing of support for PacLii with its ‘hostile blockade’ and desire not to have evidence of Fiji’s ‘viable working and intellectually honest judiciary on the internet’. It’s obviously escaped his attention that PacLii provides data base services for all the other 20 Pacific Island nations as well as poor, benighted Fiji.
Emosi said…
I myself have been in a decade long legal battle with a certain government agency there in Fiji.

We have won our case on several occasions but this agency always seems to find another excuse for why it cannot do what it is bound to by law.

I have ten years of court documents, emails with extortion demands from the official email address, financial statements that dont balance, recorded conversations with the legal officer as well as the CEO and Chair of the Board of this agency.

I have spent my entire adult life, from the age of 21 onwards, trying to get what is rightfully ours out of their sticky hands.

I would make a public spectacle of it all but I am terrified of our home being burnt down, my mother being "detained" and/or all our assets there being nationalized and us declared persona non grata.

Thats how big and embarrassing this entire fiasco is.

to be sure, this has been going on longer than the current govt has been in power, but they certainly havent done any of that cleanup they talk so much about.
Anonymous said…
The critics of the Critique have liitle or nothing to contribute - so go for "Sudden Shelley" if not "Crosbie". The content is not only interesting but revealing and even shocking. What was Fiji Law Society? It had the authority to self-regulate the profession that was meant to procure justice for the citizens of Fiji but it spawned a profession that itself became a pedlar of injustice. Four of its previous presidents charged is a very sad reflection on the Fiji Law Society. It had 400 letters of complaints against its members but it showed its moral and ethical bankruptcy when it just ignored them. The current Govt has delivered its citizens from its predators and the best that can happen is when some of these are behind bars. The Independent Legal Services Commission has don't a commendable job within a very short time.
Anonymous said…
@ Emosi and Poor, benighted Fiji.....

Emosi your case describes precisely 'where we are at'. And it is an unhappy and dysfunctional place ongoing. Daily examples of this. Deceit, fraudulent behaviour more evident now than ever because as a nation 'we are on the make'. Note that the alleged defrauder of the FNPF has gotten away. Are we surprised? No we are not.

This will not change. It is now endemic and the patient is becoming terminal in outlook. Morbidity has set in. The doctors and the medicines are out of reach. Uninsured medical practitioners are dangerous creatures. We must have known this all along?

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