Are Fiji’s Courts Free of Political Interference?

Fiji’s most vociferous critics have long claimed government or military interference with the courts, saying that no one can expect justice once they appear before court.  If they are government critics, they will be found guilty and probably jailed. If they are government supporters, they will be found innocent, or their sentence will be less than what is normal for their crime. 

These claims have been echoed by other, more responsible people, such as the President of the NZ Law Society, the  Prime Minister and the Minister of Foreign Affairs.  John Key and Murray McCully are among many others who have claimed the Fiji government interferes with the courts and that justice cannot be expected in these circumstances. 

The recent breaching of his bail conditions by Ratu Tevita Uluilakeba and his flight to Tonga make the issue of.immediate importance because he  claimed he fled because he would not have a fair trial for his alleged sedition charges had he stayed in Fiji. He claimed the charges were  politically motivated.

 NZ  Queen's Counsel Peter Williams has conducted several cases in Fiji and feels that while the  rule of law is generally followed,  political trials may not be.  Fiji’s  Solicitor-General, New Zealander Christopher Pryde, however, maintains the courts are not subject to political interference, and that Ratu Tevita would receive a fair trial.

This article examines the record on court cases and judgments since the 2006 Coup to see whether there was —or could be— political interference. It starts by looking at  contempt of court, an offence Ratu Tevita has now added to the charge of sedition, and continues by considering  the requirements of an independent judiciary, and concludes by comparing these requirements with specific court cases.

Contempt of Court

As Justice Fatiaki and Justice Hickie  pointed out long before the 2006 Coup, the contempt jurisdiction of the High Court is there to protect the administration of justice from attacks that will diminish the public’s faith and confidence in the judiciary. All judges get their legitimacy from such public confidence, and therefore it is jealously guarded by the judges. This does not mean that trenchant criticism of the judgments is forbidden. It is not. What is forbidden is an attack on the honesty and integrity of the judiciary which is exactly what Ratu Tevita has done.   In other words, while it is acceptable to say that the judges got a decision wrong, it is  unacceptable to say the judiciary was corrupt or motivated by bias — even if it is true.

To attack the judiciary before a verdict is a pre-emptive strike, calculated to intimidate the judge into finding in their favour. Ratu Tevita’s claim, that the judiciary is corrupt and that he will not get a fair trial, is a pre-emptive strike.
 

Requirements of an independent judiciary

To be independent are judiciary should have independence in appointment and security of tenure;  a Code of Ethics; judgments should be published for public scrutiny; court hearings must be open, and judges and the judiciary should exercise individual and collective integrity .

Appointments. Appointments are made by the President which indicates independence in principle but the process would be further strengthened by the appointment of an independent Judicial Services Commission chaired by the Chief Justice, which would then make recommendations to the President. This is provided for in the Administration of Justice Decree but the Judicial Services Commission has never been appointed.

In other countries, mostly democratic, appointments to the judiciary are more political. They are either done by the Attorney- General(australia) or elected and are identifiable as belonging to particular political parties (US) but once appointed are expected to do their jobs without political bias. The UK has recently changed its way of appointing judges, opting for an independent judicial commission rather than control by the Lord Chancellor.

Tenure. Security of tenure is a potential and real problem  because the appointments of judges and magistrates can be terminated without a disciplinary hearing. This does not make the judiciary corrupt; but it does suggest fragility. Having said that, prior to the abrogation of the Constitution, all but two of judges and magistrates were on contract, and there was never any guarantee that the contracts would be renewed.  The same situation prevailed before the 2006 Coup but this again does not make the judiciary corrupt. In many developed countries in the world, judges are appointed on contract. This is sometimes seen as a way to keep the judiciary accountable and diligent.

Code of Ethics. The Code of Judicial Ethics in taught and discussed at length in judicial training sessions at  which attendance is compulsory.

Judgments should be published for public scrutiny. The Chief Justice has ordered the publication of all judgments on the internet. They can be read on Paclii. A scrutiny of the site shows that Fiji's judges are the most productive in the South Pacific.

Court hearings must be open. The current Chief Justice has banned closed court hearings.

Individual and collective integrity. As far as can be ascertained, this requirement is upheld. I recall one case where a magistrate was dismissed for a lack of integrity.  There have been many claims by those opposed to the Bainimarama government that the judiciary is corrupt. The claims are non-specific and, in the absence of any evidence, must be considered to be politically motivated.   Following the Abrogation in 2009, all existing appointments were automatically annulled (oaths had been taken on a constitution that no longer existed) and those who sought re-appointment were seen by anti-government people to be supporters of the Government.  I have spoken to some of the judges involved, and am satisfied they were primarily motivated by a determination to see that the courts remained open.

Some Court Cases

There have been a number of cases where magistrates and judges have ordered State prosecutors not to waste their time by appearing in court with unprepared cases or without essential witnesses.  Such cases were deferred for later hearings and some of them were political.

Attempt to conspiracy to murder, manslaughter and murder. Justice Bruce to stay the Ballu Khan case of conspiracy to murder Bainimarama.  Khan had been badly manhandled by the police, and was later allowed to leave for New Zealand.  The police action cannot  be condoned. However, the decision showed independence. Interestingly, Khan's lawyer was Peter Williams.

Justice Winter  sentenced Commander Keane to 18 months imprisonment for manslaughter. He was freed after serving only part of his sentenced by the executive.  I did not agree with his early release but the judiciary had no part in this decision, and the Qarase Government took similar action in the early release of people found guilty by the Courts for their part in the Speight Coup and Mutiny.

The death of Nimilote Verebasaga. This man was alleged to have been harassing Indo-Fijian farmers in the Nausori area. He died as a result of a beating by police officers.  Justice Daniel Goundar sentenced them to  imprisonment.

The death of Sakuisa Rabaka was a result of assault by a policeman and several army personnel. Justice Goundar found them guilty. They were jailed for manslaughter, but obtained early release.

The case of  Imrana Jalal.  Jalal was a very vocal Government critic who was charged with running a business without a licence. The case was thrown out by Justice Fernando. The case against her husband Ratu Sakiusa Tuisolia about fiddling of credit card privileges whilst employed by Airports Fiji Ltd also resulted in an acquittal. There seems little doubt that Jalal and Ratu Sakiusa were targeted for their anti-government views.  But they were acquitted by the judiciary.

Jalal subsequently claimed in the  media that Justice Fernando would be sacked for ruling against the Government. But he was still at work last week at a court hearing in Labasa.   These are clearly not instances of a corrupt judiciary sitting to deliver for the government.

Criticism of State bodies. The Court of Appeal has not been backward in delivering judgments critical of State bodies. Recently in the case of  Zakir Tahir Ali and Others v State, the criticism of the Director of Public Prosecutions, the prosecutor, the judge and of the government pathologist was severe. The evidence showed that the prosecution had changed the case against the accused based on the pathologist changing his evidence. Justice Marshall called it a trial by ambush, saying that the trial had not been conducted “in accordance with accepted norms of fairness”. The convictions for murder were quashed and the appellants set free.

Last month Justice Nawana in the Lautoka High Court ruled a confession to the police inadmissible because he had a reasonable doubt about whether they had assaulted the accused. His decision led to an acquittal of the accused.

In February, Justice Goundar convicted the Nasinu town clerk of corruption but acquitted the Nasinu Mayor of abuse of office charges. He also acquitted the Commissioner Central of corruption but convicted him of abuse of office.

Of course the appellants were of no political significance, but the Nasinu Town Council is seen as a battleground for the Fiji Labour Party and the Mayor was elected on a  Labour Party ticket. He was of significance to that Party. The judgments of the Court of Appeal similarly show no sign of a craven deference to the State. The Court of Appeal seems to function as a panel of accountability for the Magistrates’ Court and the High Court. Surely not a corrupt judiciary?

The Fiji Times Case.  In 2008 the Fiji Times published this letter to the editor:

Court ruling. A DARK day in the annals of Fiji’s judiciary and legal history was brought about by the totally biased, corrupt and self preserving judgment handed down by Anthony Gates, John Byrnes [sic] and Devendra Pathik [sic] in the Qarase vs Bainimarama case.

I do not know Mr Qarase nor am I a member of the SDL but I know when an unjustice [sic] has been committed and I believe that the injustice in this case must be condemned by all law abiding citizens …

The judiciary was tainted from the day Justice Daniel Fatiaki was forcefully removed and Anthony Gates unashamedly usurped his position.

Gates’ efforts to legalise the immunity is laughable given the immunity was designed to protect him also.

Thank you Mr Qarase and keep up the good fight against oppression, tyranny and injustice.

VILI NAVUKITU. Queensland, Australia.

The State charged Australian CEO Rex Gardner, the Editor-in-Chief Netani Rika and Fiji Times Ltd with contempt by scandalising the High Court of Fiji and three of its judges by publishing the letter. All pleaded guilty. It was found that the normal requirements for letters to the editor were ignored.  No effort was made to find out whether Vili Navukitu was a real person or a pseudonym and the only address provided was his email address. The Court agreed with the prosecution that the publication of the letter was a deliberate attempt to discredit the court. Justice Goundar sentenced Rika to three months in prison suspended for  good behaviour for two years;  Rex Gardner was discharged, on good behaviour for one year, and the Fiji Times was fined $100,000 and $50,000 surety bond good behaviour for two years.    Later Gardner’s work permit was not renewed and he left the country.

Finally, much more recently, the State opposed Ratu Tevita’s bail saying that he was a flight risk. The magistrate denied the States application; Ratu Tevita was released on bail, and proved the State Prosecutor’s fears were well founded  by fleeing the country.

None of these cases shows any evidence of the judiciary being influenced by Government.  Where abuses have occurred they were by police or military personnel before cases were brought before the courts, or afterwards in the early release of some of those found guilty.

Nothing excuses abuses of the law or the maltreatment of those suspected of criminal activity, and there is little doubt some abuses have occurred. But these were not the acts of the judiciary.

The judiciary was criticised by Government opponents for keeping the courts open after the 2006 Coup and again after the Abrogation of the 1997 Constitution in 2009.  The judiciary also kept the courts open after the Speight Coup in 2000 but today’s critics did not then criticise the judges. 

I would go further than Peter Williams QC who said the rule of law is “generally followed.”  There is no evidence to show that it has not always been followed.  

The problem for justice is not in the courts, but before by individual police and military personnel acting off their own bat, and afterwards  by the executive’s sometime early release of those convicted.  Both detract from the quality of justice, and should not be condoned,  but this is nothing new for Fiji.  It happened in the wake of the 1987 and 2000 Coups.  It has also happens in other countries.

It should also not be overlooked that there is a strong political element in the criticism and judgment of those who oppose the Bainimarama government, now joined by Ratu Tevita Mara. Indeed, the implication is that if a judge does not go "our" way, he must be biased. It would seem these critics want the judiciary to be biased, as long as the judicial decisions are biased in their favour.

Rather than criticising the judiciary, those who are concerned about justice in Fiji should compliment them on retaining their independence in a very difficult situation. Where injustices have occurred, the judiciary has done what it could to see that justice was done.