I would welcome comment and advice from informed readers on this disturbing press release by the Citizens’ Constitutional Forum. CCF is a highly respected NGO that "educates and advocates for the Constitution, democracy, human rights and multiculturalism in Fiji." Readers wishing to learn more about CCF may contact them by email or visit their website.
The danger is that in its haste to spell out its "new legitimacy" following the Abrogation of the 1997 Consitution, especially with respect to the judiciary on account of the negative actions of the Fiji Law Society, Government may - or may not - have foreseen how some of its decrees could be used to curtail the rights of those it claims to protect. Either way, CCF has raised an issue that requires an answer.
Decree Gives Superior Powers to the Chief Registrar
The Citizens’ Constitutional Forum (CCF) expresses concern that a Decree gazetted on 20 July 2009 has given superior powers to the Chief Registrar, making that office more powerful than the highest court of Fiji.
Under this Administration of Justice (Amendment) (No. 2) Decree 2009, a decision by the Chief Registrar or a Tribunal to issue a Certificate for any Court or Tribunal proceedings cannot be challenged in any court or tribunal. This effectively provides superior powers to the Chief Registrar or Tribunal to terminate Court proceedings, even before a hearing before a Judge or magistrate.
“The basic human rights ‘Right to Remedy by a Competent Tribunal’ and ‘Right to Fair Public Hearing’ are being undermined by this decree. It forecloses the right to an appeal by defendants,” CCF Chief Executive Officer (CEO) Rev Akuila Yabaki said. “This is wrongful as a Decree should be used for enhancing the protection of rights, rather than for undermining the rights of residents of Fiji.”
“The freedom of Fiji’s judiciary has been further compromised through this decree. The Courts are no longer the highest authority in the land, capable of providing justice,” Rev Yabaki said. “This is a sad day for Fiji, as the Courts will not be able to play any significant role in certain national matters of conflict resolution and justice.”
The Administration of Justice (Amendment) (No. 2) Decree 2009 provides a new section that states: “Certificate of Chief Registrar or Tribunal conclusive 23A. – (1) A certificate issues by the Chief Registrar or a Tribunal under section 5(5) or section 23(3) or (5) is, for the purposes of any proceedings in a Court or Tribunal, conclusive of the matters stated in the certificate. (2) A decision of the Chief Registrar or a Tribunal to issue a certificate under section 5(5) or section 23(3) or (5) is not subject to challenge in any Court or Tribunal.”
Rev Akuila YabakiChief Executive Officer
UPDATE
Chief Registrar violates independence of judiciary by prosecuting lawyers
The Citizens’ Constitutional Forum (CCF) expresses concern that the Chief Registrar Ms Ana Rokomokoti will be compromising the independence of the judiciary by personally prosecuting senior lawyers in the proceedings of the Legal Services Commission next week.
“The Legal Practitioners Decree 2009 gives the Chief Registrar powers to commence proceedings before the Legal Services Commission – section 109(1)(c). However, the Decree does not provide express powers to the Chief Registrar to prosecute or appear in proceedings before the Legal Services Commission,” CCF Chief Executive Officer (CEO) Rev Akuila Yabaki said.
“When a Court Officer such as the Chief Registrar prosecutes people before a Commission, the independence of the judiciary and the Commission is compromised. In effect, a judicial body is playing the role of both prosecutor and judge at the same time, which violates principles of impartiality, fairness and due process,” Rev Yabaki said.
If the decision of the Legal Services Commission is challenged in Court, the Chief Registrar has absolute powers to dismiss those proceedings, which she prosecuted herself. The Administration of Justice (Amendment) (No. 2) Decree 2009 provides superior powers to the Chief Registrar to terminate Court proceedings, even before a hearing in Court. Any prosecutions by the Chief Registrar would violate the UN Basic Principles of the Independence of the Judiciary and the Bangalore Principles of Judicial Conduct.
“Justice must be seen to be done. Former High Court Judge, Justice John Connors should disqualify himself from hearing any matters prosecuted by the Chief Registrar, until the interim government appoints an independent prosecutor, such as the Director of Public Prosecutions Office,” Rev Yabaki said.
2 comments:
Not an accidental provision surely? The judges of the Fiji courts are all judges of the new legal order created by the government. Therefore the Decree prevents challenges to the legitimacy of the new legal order. It therefore prevents a repeat of the Qarase v Bainimarama case which effectively brought the old judiciary down. Ironically the old judiciary, so reviled by the so-called freedom fighters, proved to be the hero of the hour, capable of finding against the interim government!
The Fiji Law Society demonstrably failed to bring alleged malfeasant/malpractice and undoubtedly greedy lawyers to account. Someone had to do this. Also, many of these lawyers had formed unsavoury and unaccountable alliances which were preventing effectively the administration of justice in Fiji and with it due process. May the Chief Registrar prove successful in her endeavours to ensure fair practice by each and every legal practitioner in Fiji. One Thousand Dollar registration fees for the FLS Annual Convention? No longer, one might hazard a guess.
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