Many of those opposing the Interim Government complain the Interim Government and the military have constantly interfered with the judiciary since December 2006. The suspension of former Chief Justice Daniel Fatiaki* soon afterwards lends weight to this view, although his appointment by the Qarase Government, and his anti-coup stand, could have seemed justification. The expulsion of overseas lawyers hired to defend those accused by the IG could also be deemed interference. But to this outside observer the alleged interference has been neither constant nor totally unjustified. Many far-from-democratic forces have been at work since December 2006 whose sole purpose seemed to be to achieve a return to the "ancient regime", warts, blisters and boils notwithstanding.
Post-coup situations, by definition, are abnormal. It would be surprising to find no change to whatever was considered normal before the coup. From the perspective of the media, the old government and certain NGOs, many actions of the IG are seen as excessive, but from the other end of the telescope, the IG's actions could be seen as remarkably tolerant. On a scale of one (tolerant) to ten (repressive), post-coup Fiji would score two-three, and almost all of that because of government-media/Qarase personnel/ "pro-democracy" NGO relations. To a remarkable degree, the judiciary has stood above and beyond these adversaries.
And yet, the Opposition holds that judges appointed since December 2006 are illegally appointed coup-supporters, even though the appointments are made by the President on the recommendation of Judicial Services Commission. At the same time, in apparent good faith, they continue to bring cases before these same judges. They urge prospective judges not to take up appointments and denounce those who have. They support the Australian and NZ travel bans that make local and overseas recruitment of judges difficult, which leads inevitably to court delays about which they also complain.
Which brings us to the case of Justice Jocelynne Scutt, a High Court judge appointed by the "illegal" government who stands accused of toadying to the Interim Government. I find this rather hard to believe. Prior to her Fiji appointment in 2007, Dr Scutt (who holds postgraduate law qualifications from the universities of Western Australia, Sydney, Michigan and Cambridge) had been the Anti-Discrimination Commissioner in Tasmania; Director of the Research, Legal and Constitution Committee of the Victoria Parliament; Deputy Chair, Law Reform Commission, Victoria; and a member of the NSW Bar. She was also an internationally know feminist, a firm upholder of human rights, and one of Australia's most prominent barristers.
Angie Heffernan ( Pacific Centre for Public Integrity) and Virisila Buadromo (Fiji Women's Rights Movement) criticised Justice Scutt's appointment and the "handpicking" of judges who, they claimed, would uphold the legality of the Interim Government. The International Bar Association report used their testimony to accuse the judge of "a chilling use of judicial powers" against free expression. The Australian cited the IBA Report which cited Heffernan and Buadromo, to also find her guilty.
But the Report which was used to damn Justice Scutt has in turn been criticized by Australian Clive Grossman, QC, a counsel for the Tribunal looking into the dismissal of Chief Justice Fatiaki*, and also a member of the IBA. He said parts of the IBA report were "highly misleading," contained "grave misstatements" and there were "no attempt to verify its sources." His comments were not mentioned by The Australian. The so-called "illegal" Fiji Judiciary also attacked the IBA report. Click here. But again, scant mention of their rebuke appeared in the Fiji media.
Postscript. Friday 3 April. The Australian Press Council has rejected Justice Scutt's complaint for defamation against The Australian newspaper but they did agree "that the newspaper went too far in statements such as that the complainant had 'links with Fiji's military rulers' and 'is involved with the military regime', statements that incorrectly implied collaboration with and/or personal connections with members of the military regime. The newspaper offered no evidence to justify these statements." Click here for full report.
I'm not at all sure where all this leave us but I'm reasonably sure the IBA report was flawed; Justice Scutt has been unfairly condemned; the judiciary is far more independent than might be expected in a post-coup situation; the ABC is not impartial; and the Australian and Fiji media are once again not very vocal about news that does not confirm their preconceptions.
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