Aiyaz Sayed-Khaiyum: How to be One Hundred Percent Right and Wrong at the Same Time
Opinion by Crosbie Walsh
Attorney-General Aiyaz Sayed-Khaiyum is one hundred percent right in condemning those parts of the Tutaka report that questioned the general independence of the judiciary and one hundred percent wrong in taking the Citizens' Constitution Forum to court for publishing the article, written by one of their young overseas volunteers, that reviewed the dubious report of UK lawyer Nigel Dodds Fiji: The Rule of Law Lost – An Analysis of the Law Society Charity Report 2012, Dodds briefly visited Fiji last year and consulted only lawyers opposed to Government.
The Attorney-General is right
The Attorney-General is right because while everyone can criticise specific judgements of a court, no one can question the general independence and integrity of the judiciary without being liable to charges of contempt. This is not a peculiar Fiji practice introduced by the Bainimarama government; it is common practice in all countries where the legal system is based on British common law. Any article or speech that suggests the judiciary is corrupt, biased or lacks independence offends the form of contempt known as scandalising the court. Without such a law, scurrilous individuals and groups would everywhere undermine public confidence in the judiciary.
It is probable the decision to take action against the CCF was at least partly due to the frequency of attacks made, mainly by outside critics and with little to no evidence, on judicial integrity. Where its independence and integrity is so often questioned, it is even more important to ensure that public confidence in the administration of justice is maintained. I am told this is the reason these actions are being taken against any organisation that attacks the judiciary, especially since the judiciary cannot speak out for themselves.
In the review of the Dodds Report the Tutaka article claimed the report: "provides a stark and extremely worrying summary as to the state of law and justice in Fiji … The report highlights a number of fundamental failings of the current judiciary and legal structure in Fiji, particularly in relation to the independence of the judiciary …. the independence of the judiciary cannot be relied on.”
There is no question the article is “in contempt”
When I first saw it I was surprised CCF had published it. There have been problems with the judiciary, or more precisely with Government or FICAC attempts to influence judicial outcomes, but there is no evidence at all that the judiciary has been compromised. Indeed, on more than one occasion they have rejected the Government position.
Dodds also called for action from international law groups. Predictably Jonathon Temm, President of the NZ Law Society, said the report confirmed his suspicions, even though he has never visited Fiji, despite invitations from the Solicitor-General.
Had the CCF article merely reported the Dodds Report, or questioned its sources and placed the arguments of Dodds and Government side by side, there would have been no contempt. But it did not, and this left readers to assume the author, and possibly the CCF, agreed with Dodds that the Fiji judiciary is under Government's thumb and hopelessly compromised.
I first commented on Dodds' report in two articles in March. For readers wishing more background, here are links one and two to the articles and to Dodds' Report. I was unable to obtain a copy of the Tutaka article. It has been removed from the CCF website, probably on the advice of their lawyers.
One hundred percent wrong
There are several reasons why the Attorney-General is wrong in taking this case to court.
First, no one is going to believe, even if he wins the case, that the CCF seeks to undermine the judiciary or the Government. To the contrary, everything they have done has been intended to strengthen justice and Government's stated aims. Where they have criticised government actions in some specific law cases it has been as watchdogs for fairness and democracy. They may not always have been right but their motives have never been wrong.
The personal record of Rev Akuila Yabaki, the CCF CEO, goes back many years. I remember him first as leading a deputation of squatters, I think from Tutaleva near Flagstaff, to protest their likely eviction by the City Council. That was in 1976 when most of today's Fiji leaders were still at school. He protested the Rabuka coups in 1987 and was a foundation member of the CCF. Soon afterwards he was expelled from the Methodist Church for not supporting the coups. No one in Fiji believes more in justice, racial equality and democracy than Akuila Yabaki. Likewise, the CCF. I cannot think of any other organization that has so strongly promoted the ideals the Bainimarama Government claims. Where it has differed with Government is where Government, for some reason or another, has been seen to fall short of those ideals.
This does not, of course, mean that the CCF always acts wisely. I think it made a big mistake in publishing the Tutaka article, and I think it is making another mistake in allowing Netani Rika, former Editor of the Fiji Times and now, surprisingly, a member of the CCF staff, to speak on the organization's behalf. He is now a regular contributor to Facebook and so far all his comments have been anti-government. His employment and new prominence as a CCF spokesman can only be seen by Government as a hostile act. The result will be that Government will take less notice of Akuila and the CCF and the important role they still have to play.To be effective, the CCF should not unnecessarily irritate Government (or anyone else for that matter).
The reason for the employment of Rika is another issue but it does raise the question of whether a CCF donor such as AUSAid had any part in the decision to employ him. The case against Yabaki and the CCF will be heard this coming Friday, 27 July.
Scandalising the Courts
The Attorney-General has stated he sees the Tutaka article as “scandalising the Courts in Fiji, in that they are a scurrilous attack on the judiciary, thereby posing a real risk of undermining the authority of the judiciary in Fiji.”
For readers unfamiliar with the workings of the law, it has to be said that it is the A-G's duty to defend the judiciary from attack, and it is the Court that gives or withholds its permission to allow actions to proceed, depending, in this case, on whether it considers the A-G has an arguable case. It clearly does.
The CCF case is not dissimilar to contempt charges laid against the Fiji Times in 2008 and 2011. If the A-G decided to make an exception in the CCF case, he would be leaving himself open to allegations he was being selective in who he took to court.
So now the matter is in the hands of the Court and it is the Court that will decide if there has been a contempt, not the AG. I hope the case is dealt with swiftly, the CCF admonished with no penalty, and the case dismissed. The quicker it fades from public attention, the better.
Strategically poor decision
That is the legal situation but the law is not the only situation to consider. There is the question of justice and the “public good.” And, as in all cases of justice, justice needs to be seen to be done. In the present Fiji situation, my feeling is that the public good —and Government's good— would have been better served not to take the matter to court.
In my opinion, and in the opinions of many of my readers, the decision to proceed with the charge was a poor one, strategically, for a number of reasons. As one informed Suva reader, KaiSuva, put it:
“I did not know about this Report until I read this article in the CCF journal. Why did the AG bother to sue CCF about a Report hardly any one knew about? Why not let sleeping dogs lie? Now I am compelled to try and get my hands on this Report to read — and I am sure many others will.
“Contrary to what many critics say, including the writers of this Report, I am of the view that the Courts of Fiji are independent and are doing a good job on the whole in upholding the rule of law in difficult circumstances. The courts certainly do not need this ridiculous defence by the Attorney General.
“I suspect they are probably embarrassed by this quixotic attack against his old friend Rev Yabaki. This could indeed be the case for the Courts to lay to rest at last the ghostly rumour that has been around here and internationally that the Fiji Courts are in cahoots with and under the thumbs of Aiyaz Khaiyum.”
Other reader responses include:
“The contempt proceedings are a major PR mistake. People will side with Akuila and that means they will be against Aiyaz. I doubt many people read Tutaka. If the article had been ignored, how many would have heard of it?"
“Dear Croz, A sad state of affairs. The AG seems to be over-sensitive and controls any criticisms - especially those which involve him. He needs to get a sense of humour. I read recently some words of Churchill: 'Having courage means that you are not afraid to stand up and speak. But having courage also means that you are not afraid to sit down and listen'.”
“It seems to me that what had hit the AG in the solar plexus were the following words in a paragraph:"Removing the Administration of Justice Decree 2009, removing the jurisdiction of the courts to hear and determine any challenge brought as to the validity of any of the decrees, the Report suggests the population has no lawful method of challenging the action of the Government.
“Many people may not know that Aiyaz Khaiyum used to represent the Fiji Young Lawyers Association on the CCF Steering Committee! At that time he was speaking the language of human rights and proud to give free legal advice to the CCF. He was once regarded as one of Fiji's brightest young lawyer who could one day be a blessing on any democratic government. That was in the 1990s and early 2000.”
Another reader said: “I'll reserve my comments for the moment.”
And yet another:
And yet another:
It couldn't have been at a worse time
“If an article critical of the Judiciary has appeared, I have not seen it. Let me just say this. There is a climate now of distinct fear in Fiji. It is fear of the unknown . Who wishes to enunciate their views to a Constitutional Commission in such a climate?”
Which brings us back to the question of strategy. Could a worse time have been chosen for this action against the CCF, whether or not it is technically or legally warranted?
As yet another reader commented:
“What I find difficult to understand is why the regime, especially at this more mature period in office, seems unable to take a more balanced approach to its stewardship. Clearly it will need the goodwill of organisations, governments and people overseas to support its overall direction. The sort of action the AG proposes seems yet another reactive response to an immediate problem/issue. Such actions play into the hands of those in Oz or New Zealand who simply want to say 'I told you so' in relation to their expectations on Bainimarama.”
Two steps forward, one step back
It has been difficult to read Government's mind over the past few weeks. It lifts the Public Emergency Regulations and then reverts to requiring permits for meetings of three or more people. The police arrest a dozen FLP members who had not obtained a permit. And then, less than a week later, it completely lifts the need to have a permit. But ... only for the period up to when the Constitution Commission presents its findings to the President.
What happens from then to when the Constitution Assembly meets? Will people and the media feel really free to speak openly? The PM tells us membership of the Assembly will be representative, and even include the old political parties, but it seems only Cabinet members will have a say on its membership. And then a Tribune appointed by the Chief Justice will decide whether the Constitution complies with some essential premises. Where is there provision for open discussion and debate outside the formal structures of the Commission and the Assembly?
Government advises the media of its new freedom but then, rightly or unwisely, takes the CCF (and the Fiji Times) to court. What messages will the media take from these action?
The PM stresses the independence of the Constitution Commission and the importance of all Fijians taking part in the constitution dialogue. And then Government lays down more “guidelines” about how the Commission should act.
It even publicly disagreed with the Commission it has appointed, as reported by Don Wiseman:
“The Commission says the push for immunity for the coup makers to be written into the constitution is undesirable. And it says controls on the media, lack of court access and the wide reaching powers of the security forces are particularly worrying.
“But the interim government claims the new decrees set out the framework for a free, fair, and open constitutional process. It says immunity is common in nations promoting reconciliation. The government says having the prime minister decide who can sit in the Constituent Assembly will ensure a broadly representative body is formed. It says the Constitution Commission is wrong in its claims about media freedom, access to the courts, and powers of the security forces. It says the media and the courts are independent and that the security forces are subject to the country’s laws. And it says none of the issues raised by the Commission have any bearing on its mandate as laid out by the decree that created it.”Wow! One might be forgiven thinking Government is driving by the seat of its pants, and shifting its position when it feels uncomfortable. This is not good enough. To restore confidence, Government should spell out ALL the conditions for dialogue and the FULL extent of its intended involvement until (and beyond) 2014
Get them out there in public arena now for all to see —and don't change them again.
Team work needed
I suspect the main reason for these frequent “adjustments” is that they all stem from the Attorney-General and no one man, however hard working and talented, is able to keep his eye on the ball all the time. He is also human and cannot be unaffected by the constant stream of negative comments directed towards him and his work.
If my assumption is correct —and even if it is not— it is clearly time for Government to bring more members into Cabinet, share out the portfolios of the PM and the A-G, and have a number of competent advisers “sit in” on Cabinet meetings, including Permanent Secretaries, specialists, and people responsible for media releases and interviews.
In this way Fiji will have a “team” leading the country, and teams are less prone to what seems to be the rolling, knee jerk reactions we have seen in recent weeks.
Fiji is closing in on the end of the Government 's Roadmap and things are still going relatively well. But there's still some way to go and much can still go wrong. The old opposition will probably continue as they have started. They want the Constitution Commission to fail and the Constitution Assembly to be a place of discord, not co-operation. Essentially, they want a return to how Fiji was prior to December 2006. Their record shows they will do everything they can to discredit Government achievements, spread doubt, and impede present initiatives.
Government must not allow this to happen. From now on in it must play its cards very carefully, always thinking of the likely impact of its every move on public opinion.
Ultimately, if things do go wrong, Government will have only itself to blame.