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.

Akuila Yabaki
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.

Netani Rika
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'.”
And again:
“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: 
“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?” 
It couldn't have been at a worse time
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. 


Watching it unfolding said…
At last there is a hint of honesty and integrity in your latest ramblings. Although you still live in the fantasy that a military junta is a 'government'? It is easy to see where this is all heading. The clash between Khaiyum and Bainimarama is inevitable. One will crash and burn. The other will be isolated. Watch the space objectively and see it for what it is?
Observer said…
Aiyaz has developed a talent for shooting himself and the regime in the legs and making unnecessary enemies.
There have been other signs that power has got to his head; he is becoming punch-drunk with power, can't handle the power properly, responsibly, astutely.
Getting himself worked up over trivialities.
Wasting his time.
Wasting court's time.
Wasting resources in a poor country with ailing economy.
Silly court cases reinforcing impression that regim is autocratic.
Showing a desperate need to prove he/regime is always right.
Lost sight of the big picture.
I could go on and on.
Mark said…
I must admit that for a very brief moment I had the hope that the constitutional commission would be able to lead Fiji out of its crisis. It looked as if the process would be adequate to find the right balance between [understandable] interests of regime leaders in immunity and the re-establishment of the rule of law. But no longer so. To me it is not that difficult to read the regime and its acting Prime Minister. The message is: We will control the process and any critical voice will be silenced whether the criticism comes from friend or foe. And CCF is most certainly not an enemy of the regime. This lashing out against any attempt to get a meaningful consultation going, these totally erratic actions of the regime in recent weeks are a cause for major concern. And Bainimarama did certainly not help things when he threatened the end of all those who want to hold the military accountable.

Balancing legitimacy and credibility with the need for power, control and protection is an age old problem for dictators contemplating to hand power back to a legitimate government. The crimes committed [typically treason in conjunction with human rights violations] by dictators haunt them and there is very little evidence in history that you can get out but stay in the country where you have committed those crimes. Ben Ali of Tunisia and Saleh of Yemen just made it out before it was too late, Gaddafi was not so lucky. Musharaff, Amin and Mobuto had to go into exile, Taylor and Mubarak to prison and Saddam to the gallows. The list goes on and includes numerous tyrants either killed or prosecuted. The case of Pinochet [who managed to initially get out of Chile] is another warning to dictators that they cannot consider themselves save, even if they do manage to leave the country.

What does this mean for Fiji? In an ideal world the regime would hand over to an interim government [free of any military] to prepare elections. The leaders of the regime would declare their willingness to be held accountable in an independent court of law. They could plead their doctrine of necessity and let the court decide if they have a case or not. After all, in Fiji we are not looking at criminal acts of monstrous crimes such as the atrocities committed by Syria's dictator on a daily basis. But this is not going to happen. My advise for Bainimarama and his inner circle would be to prepare for a life as expatriates, even if it is only as a contingency.
Taxpayer Spokesman said…

What you forgot to question is how the accusations and possibly criminal charges against CCF and Akuila Yabaki is going to undermine or weaken its own campaign to the grassroots about their rights and why they should participate in the forthcoming constitution review and consultation process. For like Aiyaz Khaiyum and his past links with CCF, Professor Yash Ghai was the brainchild behind the founding of the CCF. I suspect the whole exercise is just a gamemanship - and CCF will walk out of court smiling - I dont believe Aiyaz is serious, for if he is - lets see where all this end up. We do not know the terms and conditions of these overseas judges, not to mention their salaries etc, which is paid out of taxpayer's expenses. Croz, realistically speaking, how would you react if I walked into your house every evening and emptied your food cupboard, and cooked and ate whatever I felt like on that day - that is what the people of Fiji are feeling - sadly the cheerleaders are Indo-Fijians who wrongly believe that Aiyaz Sayed Khaiyum will provide them Nirvana in Fiji by 2014
Lesley said…
I cannot understand why the CCF would employ Netani Rika. Not wise at all. Whoever decided to publish the Tutaka article would have known there would be a reaction to it. Rev Akuila Yabaki is the one who has done the "hard yards" so I hope that Netani Rika does not outshine Rev Akuila Yabaki. Jonathan Temm from the NZ Law Society is not prepared to visit Fiji so he should keep quiet and keep his opinions about Fiji to himself until he actually does visit Fiji.
Anonymous said…
The fact that the regime has not categorically stated they will not stand in elections, the people or parties will see them as opposition and will legitimately try to discredit them or minimise any advanatge they try to take forward into elections.
If the Bainimarama sticks to his promise and categorically states they will not stand in an election, dont you think this would go a long way towards creating a climate of co-operation.
Fly On the Wall said…
This conversation took place on the weekend Sun 22 June in Nadi,where a
workshop organized by the UNDP attended by a selected few from the
Political Parties,Unions,NGOs.The Govt was represented by Aiyaz Khaiyum and
Pio Tikoduadua.

One of the participant during a one on one with Khaiyum, asked him
three questions as follows,

1. Q. Are you more powerful than Frank

A. Well I do a lot of work thank him (Frank)

2. Q .Will there be an Election in 2014

A. Yes,Election in 2014 as planned,

3. Q. Will Frank form a Political Party and contest the Election

A, Yes the Regime will form a Political Party and contest the Election
Fiji Times, democracy and skirt journalism said…
Netani Rika might have had more credibility if not for his dubious record.
He is but a 'born again' democrat, just as Speight was a 'born again' champion of indigenous rights.
Speight's 'awakening' came when the FLP formed government, and he lost his job at Fiji hardwood for corruption.
Rika's 'awakening' came when the ethno-nationalist SDL was ousted in the coup.
Rika was nowhere near as vocal or active during the SDL's excesses, or the Speight coup, as he is now.
He was a disaster as editor of The Fiji Times, which was so blatantly anti-FLP in 1999-2000 it is stunning.
You can see the empirical evidence in my Thakur Ranjit Singh's thesis. It will open your eyes.
There is clear evidence that under Russell Hunter and Netani Rika, Fiji Times practiced skirt journalism in 199-2000.
So it is quite hypocritical Netani Rika is pontificating to Fiji about democracy when he abused his editorship and took advantage of democracy to carry out personal vendettas.
The Fiji Times under the Hunter/Rika team is a great case study about abuse of position and power, arrogance in the media and how the media can become a threat to democracy.
As one writer commented, Fiji Times editors like Rika have been so busy playing politics, strutting at media conferences, basking in the attention of naive international audiences, that they forgot about the basics. The paper lacked rudeimentary understanding about defamation and subjudice.
When Rika was editor, defamatory stories and articles in contempt of court were commonplace.
When the paper was fined for subjudice contempt, it tried to hide its appalling professionalism by turning it into a freedom of speech issue. Rika's disastrous editorship, including his one-dimensional approach to the coup situation, culminated with News Limited losing ownership of the Fiji Times. Had the Fiji Times had an objective, less politicized, less arrogant-more experienced editor, News Limited woud not have lost ownership. Once Russell Hunter and Rika started to use the paper for personal agendas, the paper's days became numbered. If they thought they did a great job in helping topple the FLP in May 2000, it came at a great cost to News Limited when finally, years of pathetic journalism, caught up with it, and it was forced to sell.

Netani Rika and Russell Hunter became so arrogant and so sure of the Fiji Times power they thought they were untouchable. This attitude runs through the Murdoch newspaper editors, and saw the destruction of News of the World.

On can only hope that having destroyed the Fiji Times, Netani Rika does not do the same to CCF.
Checkmate said…
@ Mark
Mark, your comments are the most sensible and rational I have read in blogs in a long time, particularly in pro junta blogs. The last few weeks the signs from the regime have been quite disturbing. In this uncertain environment created by the regime the stance taken by NZ is commendable. NZ and others must be seen to be doing all they can to avoid the potential chaotic situation being created by this misguided coup and its perpetrators. Your comments on the demise of dictators shows insight and maturity. I remember the time in Romania when Ceasescu was 'removed'. It is still celebrated by Romanians to this day. Fiji does not need violence. What needs to be done can be done in an orderly and systematic manner. The priority is to return to democracy and the rule of law ASAP. Then outstanding issues can be dealt with calmly and methodically, with external assistance as and when required. In the end, justice will be done. There is no doubt about that. And Fijians will be rewarded for their patience through this difficult period.
Above All let There Be Love said…
Ilove the way you sneaked in your snide remark about Indo-Fijian as cheerleaders expecting Nirvana via Khaiyum. Be informed that Indo-Fijians are a diverse group and they don't always think collectivly or be relient on any one person, or the promise of Nirvana in Fiji. Bitter experience has taught them that the dice will always be loaded against them simply because they are Indians. Gratefully, it has been easier for them to breathe under Bainimarama but despite all his hopes and promises he might not be able to eradicate hate mongerering when even church ministers are substituting love they neighbor with hate the Indians. Little wonder why Indo-Fijians are still leaving the country in droves at every opportunity. These same people who have filled the national coffers with their tax dollars which in turn have filled your cupboard with food. Don't always feel angry and victimised by Indo-Fijians when you already have all the resources at your disposal. Wake up and smell the roses. you will find there is better, brighter, more welcome world out there when you love instead of hate.

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