(B)How Independent is the Judiciary?

This background (B) post compares how judges were appointed and lawyers registered before and after last month's abrogation of the 1997 Constitution. The issue of concern is the independence of the judiciary.

The Chief Justice and the Attorney-General. Under the 1997 Constitution the Chief Justice was appointed by the President on the advice of the Prime Minister following consultation with the Leader of the Opposition. Judges were appointed by the President on the recommendation of the Judicial Service Commission following consultation by it with the Minister and the Sector Standing Committee of the House of Representatives responsible for matters relating to the administration of justice. Since the military takeover the President has received advice on the position of Chief Justice only from the Interim PM and his Cabinet, most especially by the Attorney-General, Aiyaz Khaiyum (photo), a lawyer who is also Minister of Justice. The positions of attorney-general and minister of justice are political appointments, often held by the same person, as in many other Commonwealth countries.

The Judicial Service Commission. The JSC consisted of the Chief Justice, the Chairperson of the Public Service Commission, and the President of the Fiji Law Society. The FLS had the responsibility of "registering and regulating" lawyers. The society checked their professional qualifications and good standing. Although the appointment of judges could on occasion have been subject to some political influence, this would not have been the case with the registration of lawyers.

The Administration of Justice Decree gazetted on 17 April replaced the judicial provisions of the 1997 Constitution and excluded the Fiji Law Society from the Judicial Service Commission. JSC membership now consists of "the Chief Justice as chairperson, the President of the Court of Appeal, a legal practitioner with not less 15 years post-admission practice, to be appointed by the President on the advice of the Attorney-General and a person, not being a legal practitioner, appointed by the President on the advice of the attorney general." The Decree also made provisions for the President to appoint Judges, Justices of the Appeal Court, Judges of the Supreme Court, Master of the High Court, Chief Magistrate, Magistrates and other Judicial officers." All appointments to the bench will be made on the recommendation of the Judicial Services Commission.

The Government and the Fiji Law Society. The problem for Government has been that past and present presidents of the FLS (and a goodly slice of it membership) deny the Government's legitimacy, and have been vocal opponents of its almost every move. In early 2007 the society barred seven military lawyers from practising, and it continues to warn both local and overseas lawyers not to take up appointments. On 23 April Radio NZI reported that present President, Dorsami Naidu, said the society may expel members who took up appointments, and the NZLS, taking its lead from the FLS, has warned NZ lawyers not to work in Fiji. More pragmatic tactics might have permitted some accommodation, and kept the door open for the society's continued influence.

It would have come as no surprise to the FLS that it was cut out of any direct or indirect influence on the composition of the judiciary. Its actions assured its exclusion. President Dorsami Naidu and the Attorney-General made it quite clear they could not work with each other. But if -- and it is a very big if -- the non-government members of the Judicial Service Commission can maintain an "acceptable" distance from political influence, its exclusion will not have compromised the judiciary. For compromised it must not be. Judges must maintain their independence from the legislative and executive branches of government, even if (especially if) there has been political influence in their appointment, a situation that cannot be entirely discounted under both Qarase and Bainimarama regimes.

The Licensing of Lawyers. What now seems likely is that the Society will also lose the authority to license lawyers it held under the Legal Practitioners Act. The Coupfourpointfive blog reports that its legal sources say the Attorney-General will become the new licencing authority, and given that licences will continue to be issued annually, as they were under the FLS, there is a possibility that "well known lawyers like Dorsami Naidu, Tupou Draunidalo, Ratu Joni Madraiwiwi, Graham Leung, Richard Naidu, Florence Fenton, Jon Apted, Niko Nawaikula, Akuila Naco, to name a few, are likely to be discriminated against and may not be issued practicing licences.These lawyers have criticized the military regime."

Unfortunately, this is a quite possible outcome, but in itself the termination of the FLS's authority may bring no great change.The Society exercised special powers not enjoyed by its sister organizations in NZ and Australia. There, the law societies have no direct involvement in the appointment of judges or the registration of lawyers, other than to ensure the latter are properly qualified and of good character. Judges are appointed by executive government without intervention from their law societies or the existing judiciary. The assumption is that the appointments are not politically-influenced.

The critically important issue is not the Fiji Law Society but the independence of the judiciary and the fairness of its judgments. Recent events may have made this more difficult, but not impossible. The senior judges so far reappointed give some cause for confidence, but last week's early release from prison of the soldiers and policeman convicted of manslaughter is not a good sign. See post "Justice Is What Justice Does."