Peter Williams QC and Fiji
Opinion by Crosbie Walsh
Peter Williams QC is arguably NZ's most able criminal lawyer ever, a liberal, principled, kindly man, much respected for his work on prison reform and other humane activities. I share this respect with my fellow countrymen but on Fiji, where he is currently defending former SDL politician Mere Samisoni against a charge of sediton, I have to differ.
I think he has been lured, as was Helen Clark, by semantics to assume democracy means the same everywhere, and all military dictatorships are intrinsically oppressive.
There are many things that are not right in Fiji but the situation is not, as he claims, "as simple as that." Rather is it a hall of reflecting mirrors where reality and reflection can be so easily confused and where most firm judgements, and views on what is "right" or "wrong" and who is "good" or "bad", need qualification and revision.
During his recent interview with ABC's Dominique Schwatz he made some questionable assertions that need to be challenged if only because the opinions of a man of his stature carry additional weight.
The timing and motivation of the Qarase case
During the interview you will hear the claim that the timing of the Qarase case shows the Bainimarama
government intends to silence all critics ahead of the 2014 election.
What was not said was that the timing was not of Government's making or, indeed, the Court's. The case was delayed several times at Qarase's request while he looked for an overseas lawyer he could afford, and it is far from clear how a court case two years out from elections can be considered timely. It is hardly ideal timing to affect political outcomes.
You will also hear that Qarase's corruption occurred "two decades ago" as if this is a sufficient reason not to pursue charges. Williams said the charge "has just been resurrected 20 years later" and he had no doubt the motivation was political.
And so it may have been. After all, the unlawful actions of public figures like Qarase are more likely to be pursued than others less well known. But many people, including myself, were aware of the charges against Qarase in the 1990s.
So if it is political to pursue them NOW, one can only conclude it was also political NOT to pursue them earlier. And one must ask why.
An independent judiciary
Asked about the independence of the judiciary, Williams said:
"I'm not prepared to comment on that. I must say myself, with my own personal experience, and I've had several cases there, I've got no complaint. I think the judiciary is doing their best in their own way."What can we take from this? They are certainly contrary to the views expressed by most of those opposing the Bainimarama government. Williams does not think, from his experience, that the judiciary or judicial findings are influenced by Government. Does this mean the Qarase judgement was fair —and not just "timely"? If so, why then does he raise it as evidence of government interference?
He declined to comment on the general independence of the judiciary, and thus left open the possibility that he thinks it may not always have been independent. Was this because to say so may prejudice his standing as Mere Samisoni's defence lawyer, or was it because he has no evidence to support his suspicions other than the the opinions of those with whom he has been mixing? People like Mere Samisoni.
His derogatory reference to the "so called" interim government and the "so called" elections strongly suggest Mr Williams has strong, and far from independent or balanced views, on Fiji. He sees the cup as half empty where others, such as those sitting on the Constitution Commission, see it as half full.
Government is controlling everything
His main complaint, however, is not with the judiciary but with the extent of Government "control" which he says is far greater than in a democracy like New Zealand or Australia.
Asked by interviewer Dominique Schwartz whether his main "beef" was with the "judiciary as such", he replied:
"No, it's mostly the interim government that are controlling everything over there. It's like an octopus with tentacles. They control everything and now of course they want a new constitution with immunity for themselves. And they want to be able to dominate the next elections and they're not prepared to give anyone who opposes them a fair go. It's as simple as that."So here we have it. His concern is not with the judiciary but with Government controls and with those of its its officers who actions he sees to infringe on human rights. The recent brief detention of Mere Samisoni is a case in point. She was apprehended on a careless driving charge. Williams called it "harassment" and so it might have been, but neither he nor I are in a position to tell.
Fiji is closer to New Zealand in 1951 than New Zealand today
New Zealand is the yardstick by which he measures incidents like this. But Fiji is not "like New Zealand and Australia" as he may wish, and the current situation is far removed from anything NZ has experienced since the 1951 Waterfront dispute when, incidentally, the NZ Government assumed powers far in excess of those now in use in Fiji.
Police used batons on unarmed protest marchers. The military manned the wharves. Dozens of trade unionists were arrested. The press was muzzled and anyone publicly supporting the watersiders (or even providing food for their families) could be arrested and held without charge. Don't tell me I'm wrong, Mr Williams. I am old enough to remember.
Choosing where to look
The QC claims Government is trying to suppress all opposition in the lead up to the 2014 elections.
What was happening, he says, is that "the so-called interim government, is ... trying to suppress any opposition in these so-called elections that are coming up and they will put their own candidates up in due course and of course anyone standing against them will be harassed."In this statement he most clearly shows his position. He has chosen not to look at the record of today's "opposition" before and after 2006. He closes his eyes to the flawed, racially biased democracy that previously existed, to the desecrated temples, the harassment of farmers, the non-renewed land leases, the official policies, in jobs and scholarships, that favoured iTaukei to the detriment of other races, and the emigration of tens of thousands of Indo-Fijians, many of whom would not have left if they thought Fiji offered their children a fair future.
Yet this is the "democracy" espoused by Mere Samisoni. I struggle to see how the QC can see any resemblance of that "democracy" to NZ.
He also gives no credit for the many documented worthwhile things done by the Bainimaramama Government to address Fiji's "structural" problems: the rural and outer island development, the restructurising of the public service, land lease money paid directly to the iTaukei landowners, work to bring idle land into production and make Fiji less dependent on food imports, minimum wages, the protection and empowerment of women, children, squatter settlement upgrading and resettlement, measures to reduce poverty and, most of all, the several measures taken to build a sense of common Fijian identity.
Finally, he has even closed his eyes to the major changes over the past few weeks. Self-censorship may continue in the media but the media is far more open than it was. Most public meetings do not require permits. The Constitution Commission has started its work.
It is mischievous to talk of "only Government" wanting a new constitution and Government wanting immunity. Of course they want immunity, but Chairman Yash Ghai is no pushover and what his commission recommends to the Constitution Assembly is likely to rest more on consensus than compulsion.
I would expect the military to retain some position of influence in future events but it is not one of their "non-negotiable" expectations in the new constitution. We will only know their future role when the constitution dialogue is complete. Surprisingly for a lawyer, Mr Williams pre-judges outcomes.
Government is encouraging all Fiji citizens to make their submissions to the Commission. It has reaffirmed political parties will be represented in the Constitution Assembly. And of course it wants to see a party, or parties, elected in 2014 that will not undermine its work over the past six years, make a mockery of the People's Charter, and return Fiji to the way it was. What is surprising or sinister about that?
I wonder what the three respected international lawyers on the Constitution Commission think of the New Zealand QC's opinions. My guess is that they will share some of his reservations but withhold judgement or disagree with his conclusions. For unlike Mr Williams, none claims any special ability to foresee Fiji's future, and again unlike Mr Williams they also know that little in Fiji is "as simple as that."
POSTSCRIPT. I see Amnesty International is making similar assertions to those of Peter Williams. They too are more concerned about the "timing" of the charges against Qarase than whether he behaved as accused, which should be the main point at issue. They do little for their reputation by their ongoing, one-sided condemnation of Fiji. And they've lost me as a donor.