(o) Assassination Plot: Who were the Assessors?

With so much depending on the public and overseas reception of the guilty verdict against the eight men charged with plotting to assassinate Bainimarama, it is important readers know more about the Assessors who brought down this verdict. 

Some 600 people applied to serve on a panel of assessors. The panel is approved yearly by the Chief Justice  and the list is gazetted. The assessors in the Assassination plot trial were picked by the High Court Registry and their names were given to lawyers on both sides who had the right to object. Where there are objections they are normally replaced. In this case defence and prosecution agreed to each of the assessors. For further information, look at the Criminal Procedure Decree on assessors and the right of objection.

Related items

New Zealand "utterly rejects" the claim by one of the defendants that it was in any way involved in the assassination plot.

Defence lawyers have applied for non-custodial sentences for all  eight to be sentenced on varied grounds: minimal involvement, good character, first offenders, second chance, age, sole breadwinner, ill health, treatment while in detention, and entrapment (the argument that they were talked into the plot by undercover soldier Kuli).

Ballu Khan, although deeply implicated, cannot be charged because  he won  a permanent stay of proceedings against him. Khan now lives in Auckland.

Justice Madigan will announce sentences at 3:30 pm today.

(-) Further Concerns About Power of Chief Registrar

The Citizens Constitutional Forum has issued a further news release on this topic.  See my earlier and now updated post "Concerns About Powers of Chief Registrar."

(o) Fiji's New Legal Decree Shares Much with Australian States' Practice

[This post looks at what one blogsite said was said about the new Legal Practitioners Decree, what was actually said, how the decree compares with the practice in some Australian states, and what the decree might - and might not- mean for Fiji. It is written because people in Fiji need a more balanced assessment and because more uninformed comment will soon reach the international media, if it has not already done so.]

There's more than a semantic difference between the Coupfourpointfive headline "Australia Law Council Condemns New Decree" and what Coupfourpointfive wrote on what ALC President John Corcoran actually said. He is reported to have expressed "grave concerns about the future independence of the legal profession in Fiji after the interim Government yesterday issued a decree removing the Law Society’s power to issue practicing certificates ...this could be the first step in the interim government's attempts to control the country's legal profession, by not allowing lawyers who oppose the regime to practise law." These are legitimate but worst scenario concerns about what the decree might mean in the future; not what it actually means now. The difference is important.

Corcoran was also concerned there was "no prior consultation with the Fiji Law Society or Fiji’s legal profession." Had FLS-Government relationship been better, there might have been consultation but with the FLS still urging lawyers not to take up appointments as judges, consultation was unlikely. However, a number of lawyers must have been consulted, if only to write the decree. Corcoran's main concern is one we all share: “Without an independent legal profession, a vital ingredient in upholding the rule of law in Fiji would be missing."

But he did not -- and indeed could not -- condemn the decree provisions because justice does not simply hinge on a law society with compulsory membership that registers lawyers and hears public complaints against fellow lawyers-- as the different systems operating in Australian states demonstrate.

Australian Comparisions*
In Western Australia, for example, membership of the Law Society is voluntary, a Legal Practice Board registers lawyers and a separate Professional Affairs Committee hears public complaints, (whereas in NSW, Victoria and Queensland the Legal Service Commissions hears complaints.) Membership of the WA Legal Practice Board (that registers lawyers) consists of the Attorney-General, the Solicitor-General (both government positions), Queen's and Senior Counsel, and 12 legal practitioners elected by all registered lawyers.

In Victoria the Legal Services Board consists of a Chairperson and three lay persons, nominated by the Attorney-General and appointed by the Governor in Council, and three legal practitioners elected by lawyers on the Board's electoral roll.

The Law Institute (similar to Fiji Law Society)is a separate body with voluntary membership to which the Board has delegated the responsibilities(to act "of behalf of the Legal Services Board") of issuing and renewing practicing certificates, maintaining the registers of legal practitioners and disciplinary action."

So, depending on the State, a law society may have nothing directly to do with lawyer registrations and complaints but it may be delegated one or both responsibilities. Law society membership is voluntary. All its members may have a say in its delegated responsibilities, or these may be decided on by a vote of all registered lawyers, whether or not they are members of the society.

Perhaps more important, the Attorney-General is the ex officio Chairperson or member of the Legal Service Board and in one of the two states the A-G appoints other members of the Board.

* I am not a lawyer but this is my understanding as obtained from the relevant official websites.See also my previous post : The Legal Practitioners Decree 2009: Fact and Opinion.

(o+) The Legal Practitioners Decree 2009: Facts, Opinions

A new Presidential decree, the Legal Practitioners Decree 2009, makes the Registrar of the High Court responsible for the registration of lawyers, and complaints by members of the public will be dealt with by a new Independent Legal Commission. These roles had been the responsibility of the Fiji Law Society from 1996 to 2009. All legal practitioners will need to re-apply for their practicing certificates with the Chief Registrar before their licences expire on June 30th.

Details of the decree differ in detail from previous media reports and blog speculations that had the Attorney-General responsible for these two functions, and the disbandment of the Fiji Law Society. The Decree sets out the establishment and continuation of the Society but with voluntary membership. Attorney General Aiyaz Sayed-Khaiyum said the role of investigating complaints against lawyers was given to the new Independent Legal Commission following public complaints of delays when investigated by the FLS.

The decree also helps explain why the Registrar of the High Court took files which contained complaints against lawyers from the FLS offices last Saturday. Sayed-Khaiyum said FLS secretary, Afrana Nisha, "was shown the decree, handed over the keys of the office and practically went down herself to show the Chief Registrar and her officers where the files were." It was not true that she had been forced to hand over the complaint files, as claimed.

Earlier, another judge, Justice John Bryne, was sworn in by the President and reappointed to the Fiji High Court. There are now four High Court judges, and the Court was reopened today. Further appointments to the judiciary are expected soon. Sittings of the Fiji Court of Appeal and Supreme Court have been rescheduled to the end of the year.

NZ Lawyer Reactions to the Decree

John Marshall QC, of the NZ Law Society said: “In New Zealand, the Law Society issues practicing certificates to lawyers. The Fiji Law Society has done the same for the last 12 years. We are very concerned to learn that the Fiji Government, through the Chief Registrar, will now decide who should hold a practicing certificate.

But, according to fellow lawyer and former MP Stephen Franks, this is not quite accurate. He also is concerned about the new decree but writes: "The NZ government in 2006 took over control of lawyer registration and discipline in New Zealand. So the NZLS can’t match Peter Williams QC’s claim that the Fiji legal system is now like that of Hitler’s Germany. Peter explained that the Fiji government will now control even the Society’s handling of complaints about lawyers by the government itself. That’s been the case in NZ since the 2006 Lawyers and Conveyancers Act 2006 came into effect last year."

So, it seems the decree and new judicial appointment do not of themselves mean the end of an independent judiciary in Fiji. Different countries have different systems, and they change over time : the FLS's authorities only date back to 1996. Was there no justice before then?

What is important is that the judiciary must impart justice fairly and be seen to do so. The implementation of the new decree, and the judgments of judges, will be closely watched.

(o+) Justice Gates's Moral Dilemma

A moral or ethical dilemma is a situation that often involves an apparent conflict between moral imperatives, in which to obey one would result in transgressing another. Resolving moral dilemmas is seldom simple.

I think Anthony Gates faced such a dilemma before accepting his reappointment as Chief Justice. Having once stated that the 1997 Constitution was Fiji's supreme law and only Parliament had the power to amend laws, his reappointment now rests on a Presidential decree and the Abrogation of the Constitution. The blog Coupfourpointfive and some other commentators whose opinions I respect question his motives.

But what does CJ Gates himself say? Speaking on the afternoon of his reappointment the Fiji Sun reports him as saying “There is no doubt in my mind that the judiciary must continue. Academic commentators may expatiate on the indelicacies of our situation, the constitutional dislocation itself, the present impossibility of constitutional compliance over appointments and many other niceties. What is of far greater significance is that the judges must act as judges. They need no other command. They must do the right thing. Few if any judges throughout the world will ever have to face the dilemmas we shall face; to be intellectually honest and yet to be efficacious."

“The task ahead for those judicial officers who have agreed to serve again will not be easy.They are to be commended for their courage and for their determination to continue to provide judicial services to the people of Fiji. I know that others will come forward to serve as judges, indeed some have already so offered. In time the judiciary will prosper and an adequate number of judges will be available and appointed. Some will come from Fiji and some from overseas.”

Fiji Village further reports him asking what would happen if Fiji has no judges, and why no one* (see footnote) questioned the legality or validity of the court rulings after the 1987 coup. Asking whether the right decision had been made, he said he has been through five coups in Fiji and he truly believes that the judiciary has to continue operating for the people of Fiji. Judges must act as judges and the judiciary has to continue with its work. He said he was confident that Fiji's judiciary would prosper and the right thing to do in this case is to ensure that the judiciary continues functioning.

Fiji Daily Post reported him adding that in the 1987 coup most of the magistrates and judges refused to swear an oath of allegiance in new order. He now believed judges like himself who refused to swear an oath of allegiance after the 1987 coup were mistaken. They would have done better to have continued to serve and play a crucial role in Fiji. “That is why I and others have decided to stay on and why I believe more should in time offer their services both from within the Fiji Bar and from overseas to re-create the Fiji judiciary.”

The interview with CJ Gates was reported by the Fiji Sun, Fiji Village and Fiji Daily Post. Unless I am mistaken, the prestigious Fiji Times made no report of the interview, presumably in protest against media censorship. But, having criticized CJ Gates in the past, they surely should have given him a "right of reply."

Victor Lal, writing in the blog Raw Fiji News, makes an important point: "The people of Fiji will only have trust in the judiciary if Gates is willing to go on record to state that the courts must be allowed to hear legal challenges to the Presidential decrees, actions and appointments. If not, the Fiji judiciary will be nothing but a mere rubber stamp of the illegal regime – with Gates as its master puppeteer and Pathik, Goundar and other judges likely to crawl out of the gutter as his orchestra."

I would not go that far. Given the present Fiji situation, litigation on the legality or otherwise of the President's decrees is better left until after a new democratically elected government is formed. Now, more than ever, calmer conditions are needed to get the opposing sides to talk with each other. But litigation on alleged abuses of human rights arising from the decrees should be allowed -- and it would increase the CJ's mana if he said so, or at least worked behind the scenes to ensure justice is done in these cases.

* In fact, many questioned the court rulings. I think Gates means "no one who supported the 1987 coups."

(o) Judiciary Begins to Return to "Normal"

New Zealander Anthony Gates (photo) has been reappointed as Chief Justice and Davendra Pathik and Daniel Gounder as puisne judges. Sosefo Inoke is a newly appointed puisne judge to the High Court. Lawyer Mary Muir has joined eight other magistrates sworn in earlier in the week. [For negative and possibly libellous-by-inference profiles of the appointees, obtained from unnamed "legal sources," see Coupfourpointfive.]

The country’s high courts have been out of session since April 10, when all judicial appointments were revoked as a result of the Abrogation of the 1997 Constitution. More judicial appointments are expected to be made soon. Nazhat Shameem, former Director of Public Prosecutions and Fiji's first female judge, has so far not been reappointed.Click here for full report.

Meanwhile,blog Coupfourpointfive reports in "Lawyers Put Pressure on Naidu" that some Western Division lawyers are urging Fiji Law Society President Dorsami Naidu to allow lawyers to be appointed as judges, but Naidu has refused to change his stance.

Prior to the Abrogation of the 1997 Constitution, the FLS was represented on the Judicial Service Commission on whose recommendations the President appointed judges, magistrates, justices of the Court of Appeal and Supreme Court, and the Chief Justice. As reported earlier, the FLS is also likely to lose its role as the licencing authority of lawyers. This function is likely to be taken over by the Attorney-General. To more fully understand the significance of these changes, readers are urged to read my May 10th post, "How Independent is the Judiciary?" --Post based on FijiLive and Fiji Times releases.

(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."

(o) Radio NZ Sunday Group Discuss Fiji

To listen to lawyer Janet Mason (Wellington lawyer who represented the Great Council of Chiefs), Waikato academic Dr David Neilson (who was part of the FHRC enquiry into alleged irregularities in the 2006 election), radio journalist Richard Pamatatau (RNZ Pacific Issues correspondent) and Crosbie Walsh (this blogger) discuss recent events in Fiji -- what led up to the present "mess", opinions on how it may be resolved, and what New Zealand can do (and should not do) to help -- tune in to RadioNZ . The 30 minute programme was chaired by Chris Laidlaw and produced by Christine Cessford. If the 19th April programme is no longer available, check the Sunday Morning Archive to the left of the RNZ page for 19th April..

Feedback so far has been very positive. Vinaka vakalevu to Chris, Christine, and fellow discussants. Apologies to Janet for butting in. I think Chris handled us all very well but it's a pity the format did not allow for a some discussion between discussants.

(+) What On Earth Did the Court Expect?

I would have preferred a few days to reflect on Friday's developments but given that others are not disposed to do so, I add my thoughts for consideration.

Leave aside for the moment  the rights and wrongs of events on Friday 9th and Saturday 10th April 2009: the Appeal Court's decision that the President's appointment of the Interim Government in 2007 was unlawful; Bainimarama's apparent acceptance of the decision; the President's abrogation of the Constitution, and the reappointment of the Interim Government, together with decrees dismissing the judiciary and limitations on media freedom. These are matters we can address later.

For the moment the most important questions  seem to be:

First, what on earth did the court (and Qarase who had challenged the earlier High Court's decision that the Interim Government was lawful) expect?  That an adverse decision would see the President comply with the Appeal Court ruling -- which may yet be appealed?  That Bainimarama, the military leaders and the Interim Government would abandon their 2006 takeover objectives and hand everything back to Qarase so that things would be just as they were before, bowing to the racial and religious extremism that had infiltrated the Qarase regime?  Because that is exactly what a new election under the existing undemocratic and racially-skewed communal voting system would produce.  

Abandon the work done on the People's Charter and the President's Political Dialogue Forum; a fairer electoral system; provision for tri-lingualism in schools and government offices, that could lead to a more tolerant and inclusive Fiji? Abandon work on the renewal of land leases, the sugar industry, rural infrastructure,  the NLTB, fairer land rent returns to ordinary Fijians, a minimum wage, and the work on poverty reduction that could lead to a fairer, more equitable Fiji? Abandon work (that has proved exceedingly difficult due in part  to the denied absence of overseas forensic accountant experts) to expose corruption and clientism at the highest levels, but which most surely benefits sections of the business and chiefly elite?  Throw two and one-half years' work, opposed at every turn by Qarase and others who could have cooperated had they really believed in democracy,  into the old Lami rubbish tip?

Secondly, how are  the (new) Interim Government,  their opposition, the media and "moderate" NGOs, going to handle this new situation?   The answer to these questions, at the moment, seems to be:  "very badly." Commodore, it is essential the emergency regulations are implemented with restraint and removed as soon as practicable.  Akuila, I have respected you since the mid 1970's when you protested the expulsion of the Malekula squatters at Flagstaff. And Netani, who I have never met, you have blanked your Fiji Times pages in protest of censorship.  I respect your courage and intent but surely neither of you, Akuila and Netani,  support the return of a racist regime. That, ultimately, is the choice. Look at the bigger picture, beyond the clumsiness, provocations and abuses of power by the Interim regime. Continue your protest but with judgment. Keep the end in sight. Think. What, in this new situation, is best for Fiji?  This is not a moment for prevarication.  Now, you have to decide between the known racist and undemocratic stance of the Qarase regime, and the suspect but probable good intentions of Bainimarama.  Negotiate and be patient for space to comment objectively. For freedom of the press. A hard stance now could see all doors closed, and your important contribution to Fiji's future denied. This may soothe your justifiable pride, but it will not help Fiji. 

Thirdly, what is going to be the reaction of the "international community"?  Well, here at least there are no surprises. They are handling the new situation as they did before, within the narrow blinkers of  supposed "democracy" and "media freedom." They, who earlier rejected the findings of the Fiji High Court (because it did not support their position), now accept without question this decision of this first Court of Appeal, because it does (even though it yet may also be appealed). 

From my New Zealand, Foreign Affairs Minister Murray McCully, a total denial of realities. Honestly, Minister, what do you know about Fiji?  Who,  if anybody,  are you listening to?  In MFAT or in the NZAid  you would see ended?  To my friends, if I may call you that, Jim Tully on media and Rod Alley of the Beaglehole-Somerset-Alley conjoined clans, other than your illustrious ancestors' contributions to liberal causes, what is your special expertise on Fiji?   And to my friend Toke Talagi, Chairman of the Pacific Island  Forum, why has Australia and New Zealand spoken with no reference to you?  Do they chair the Forum?   What also of other Forum members?  Are their opinions of less importance than NZ and Australian commentators?

The role of the international community is important but not necessarily decisive. Fiji will resolve its own problems in its own way.  But the community is in a position to help or hinder, to see whether or not ordinary Fiji citizens, in the key sugar and tourist industries, and their downstream cousins, will suffer unduly.  Australia, New Zealand, the ECC and the Commonwealth can devastate the Fiji  economy, but still see no "return to democracy." And their  continuing inflexible opposition to Bainimarama will further buttress and encourage the Qarase opposition to do what we do not know --- and dare not imagine.

My Lords, Justices of Appeal, safely back in Sydney (whose judgment I will later address, because it seems, to this layman, to contain inconsistencies favouring Australian and Qarase positions), how now do you see what your detached, removed, judgment has achieved? Would you not agree that Fiji --ordinary, everyday Fiji, impoverished, bereft, isolated Fiji -- not you or Australia, face the consequencies of what you, in your lofty legal wisdom,  judged to be  not "chaotic"? And how does this situation, that you have helped create, differ from that the President sought to control early in 2007, using powers you claimed he did not have?

(oB) To-morrow 9th April : Too Many Big Question Marks

Matters seem to be coming to a head  in Fiji, and tomorrow may tell us which way they are heading. 

First, former USP and current ANU academic, Dr Jon Fraenkel, has caste doubts about whether the Interim Government is genuine about holding elections, a view shared by others in and out of Fiji. Events tomorrow may provide an answer to this question.

Second, Bainimarama has put four conditions on the attendance of the SDL, UPP, NFP and the NVTP parties at tomorrow's meeting of political leaders. The Fiji Times says that two of the conditions include "reform of the communal system of voting and not dealing with 'partisan media'." The exclusion of these parties would make the meeting totally unrepresentative.

Third, National Federation Party's Pramod Rae has reminded the Interim Government it has only until May 1 to set the date for an election that must be held by the end of the year, or face "targetted measures" by the PI Forum.  

Fourth, January's PI Forum meeting in Port Moresby* recognized "long-term issues that need to be addressed in Fiji, including ...  independent and inclusive political dialogue; but that such dialogue must be primarily focused on the holding of elections. The dialogue process should not be the cause for further delay in holding elections." 

Fifth, the IG has made it repeatedly clear that it will proceed with the processes leading up to the President's Political Dialogue Forum (which include tomorrow's meeting) and will not be coerced to hold elections before the electoral system has been changed.

So, what do we have?  An IG that insists on political reforms (to abolish race-based electorates) before holding elections; an opposition that stands to lose by those reforms (although some timed compromise may be possible);  a meeting to set the stage for the discussion of these issues (to which the opposition may be excluded); and the PI Forum and several western governments insisting on agreement by all political stakeholders and early elections before reforms -- or else. 

The situation may be further aggravated (the timing could not be worse!) by the decision of the Fiji Court of Appeal on the legitimacy or otherwise of the President's action appointing the Interim Government. The Court's decision, which must anger one or the other party,  is expected tomorrow. If the IG is deemed illegal, and former PM Qarase carries out his promise to advise the President to formally dissolve (the old) Parliament and convene early elections, "all hell could break loose."  Neither party, whatever it may now say, is likely to accept a contrary decision without protest. And this is putting it mildly.

The situation seems headed towards a meeting of the proverbial immovable force with an irresistable object.   We can only (once again) hope, pray and cross our hearts and fingers, that wise heads will prevail and the collision is averted.   -- Crosbie Walsh.

_____________________________________

* Click on "Background Material" in the lefthand column to read the PI Forum Port Moresby communique, and the Biketawa Declaration to which it refers. In part,  the communique  "Called on the Interim Government to take the following actions to demonstrate its commitment to the restoration of parliamentary democracy in Fiji: (i) provide to Forum Leaders a new timetable agreed with all key political stakeholders, specifying in detail the agreed steps to elections and a return to democracy, and the timing for completing them, reflecting a consensus reached through a genuine, open, inclusive dialogue without threats, preconditions, ultimatums or predetermined outcomes; (ii) make a clear commitment that any reforms agreed through political dialogue will be implemented in accordance with the Constitution and laws of Fiji; (iii) undertake and sustain serious and credible election preparations, including allocation of necessary resources to the Office of the Supervisor of Elections, and the prompt preparation of the electoral roll; and (iv) make a renewed commitment that the military will withdraw from civilian politics following such an election, return to barracks, and submit to the authority of the elected civilian government in accordance with the Constitution." 

(o+) The Judiciary and Justice Scutt: Saint or Sinner

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.

(o) Revisiting the International Bar Association's Damning Report

 I was never very happy with the IBA Report. There was an imbalance in those contacted. The Interim Government seemed to be blamed for all of Fiji's legal and custodial inadequacies, even those from before the Coup.

It was just too anti-Interim Government which, to some extent, could be expected. The Interim Government had denied the IBA Team entry to Fiji (as a result of their first visit when they interviewed mainly anti-Goverment people) and the Attorney-General's refusal to join their telecommunications did not help.

But others in the legal profession could have been contacted about Chief Justice Daniel Fatiaki's dismissal and other charges made by the IBA Team. Testimony did not have to rely on Graham Leung, Dor Sami Naidu and other anti-Government people.

Nonetheless, despite these misgivings I agreed with the Report that the dismissal of the Chief Justice was illegal.     Until today.     Read on ...........

IBA Member Disputes Fiji Report

Fiji Times 18 March 2009. Full text.

A counsel to the Tribunal which was looking into the removal of former Chief Justice Daniel Fatiaki has raised concern on the report released by the Human Rights Institute of the International Bar Association titled Dire Straits: A report on the rule of law in Fiji.

Clive Grossman, QC, a member of the International Bar Association, said the report contains grave misstatements, is highly misleading, and above all no attempts have apparently been made to verify any of the facts from sources other than from Fatiaki's solicitor Graham Leung. He confirmed he has made enquiries and has ascertained that no one concerned with the Tribunal was ever contacted by the delegation to obtain a balanced view of the facts.

Grossman said the report's statements are wrong which said the charges were "vague" and not particularized but in fact great care was taken in framing the charges and full detailed particulars were provided to Fatiaki's legal team in respect of all the charges, and there was certainly no complaint by them that they were prejudiced by any of the details, nor did they ask for the charges as framed to be better particularized.

According to the QC, he cannot imagine who imparted to the delegation the idea that the "general understanding" was that the charges laid before the tribunal were false or inappropriate. He said he can authoritatively state that no difficulty whatsoever was experienced in finding the evidence to underpin those charges.

He is concerned that the entire report brings the IBA to disrepute. He stressed that it is of course easy to bash Fiji as it is at present one of the international community's whipping boys, and he doesn't know whether it deserves to be.

The Interim Attorney General has supported the issues raised by the Queens Counsel. However, Fiji Law Society President Dor Sami Naidu believes the findings by the International Bar Association are factual.

(+B) Why Elections Cannot Be Rushed: Jone Dakuvula*
Original name “Is Fiji’s Suspension from the Pacific Islands Forum Inevitable?”
PacNews 22 January 2009

[Although overtaken by events- the Forum decision is now known - this is an important background paper on why the Interim Government maintains elections cannot be rushed. It deals with Banimarama’s “broken promise” and comments crtically on the roles played by Australia and New Zealand in Fiji’s past and present conflicts. The paper is slightly abridged, with subheadings added and key points underlined]


Why punish us when progress is being made? Suspension from the Pacific Islands Forum is a serious international issue because it would mean continued suspension of bilateral and multilateral aid that Fiji needs at this time, for at least another 12 months. Punishment of Fiji is to continue because we do not have an elected government and we cannot have an Election by March. Is this a reasonable way to treat an important member state of the Pacific Islands Forum? Why should the majority of Fiji’s people suffer another year because they have supported the People’s Charter as the most constructive way forward toward constitutional democracy? We have a legally legitimate government that is in effective control. Through the UN and Commonwealth mediation it will seek consensus on a constitutional way for electoral reform and then an election can be held. Fiji is merely asking for a bit of understanding and patience from our neighbours.

Bainimarama did not break his promise. The Tongan Prime Minister, Dr Feleti Sevele, has already stated his government’s position against suspension. He knows that Bainimarama had only agreed to the Election in March because he and PNG Prime Minister, Sir Michael Somare, had assured him there would be flexibility if Fiji agreed and later not be able to meet that date, then they would support him for a more suitable date. They also knew that Bainimarama had said at the Melanesian Spearhead Group meeting in April 2007 that it would take more than two years for Fiji to be ready for an Election. These two countries are likely to support Fiji at the Pacific Islands Forum meeting.

The Interim Government has repeatedly given its reasons for election delay. The Interim Government had first given its reasons for a longer lead time towards an election, in June last year in a meeting of the Pacific Foreign Ministers in Auckland. Ratu Epeli Nailatikau then warned his fellow Pacific Foreign Ministers that Fiji would ask for extension of time at the next Pacific Islands Forum meeting last year.

Last August, the Pacific Islands Forum Foreign Ministers Contact Group visited Fiji and they were again given the reasons why postponement of the Election is necessary, from the Prime Minister, the Electoral Commission, the National Council for Building a Better Fiji (NCBBF). and others that they met. This was followed up by a comprehensive response to their draft Report to the Pacific Islands Forum Leaders, just before the meeting in Niue in August last year. Their Report had omitted the practical reasons given by the Prime Minister and the Independent Fiji Electoral Commission.

People’s Charter. Basically the interim government wants to follow the Peoples Charter as the way forward towards Election. The NCBBF after a year of public consultation has produced a State of the Nation and Economy Report and the Peoples Charter, with comprehensive recommendations for reform of the electoral system, Parliament, laws, governance institutions, the economy and other areas. It is a comprehensive reform programme and most of them can be implemented by an inclusive and committed elected government.

Non-attendance in Niue.It was unfortunate that the Prime Minister last year had to cancel his attendance of the Pacific Islands Forum meeting in Niue in the last minute because of the New Zealand government’s abuse of Forum process in excluding Fiji from the post Forum Dialogue held in Auckland. The Prime Minister gave up the opportunity - that he had prepared well for -to persuade the Forum to accept the postponement of the Election because of the Peoples Charter, which now has the support of a big majority of the people of Fiji. It was put out by Australia and New Zealand that Fiji had “chickened out” of the Forum meeting.

However, it was the failure of the Pacific Islands Forum to understand and accept why Elections need to be postponed that is the reason for the continuation of this stand off. It begs the question: why should Fiji go to this special Pacific Islands Forum just to repeat what the Forum Foreign Ministers had already been told? In any case, members of Pacific Islands Forum already know why Fiji must postpone this Election and they appreciate those reasons, notwithstanding Toke Talagi and Stephen Smith’s warnings.


Australia and New Zealand’s influence at the United Nations and the Commonwealth Secretariat may have also caused the delay in the responses from these international organizations to Fiji’s invitation, in May last year, to be involved in facilitating the political dialogue. What could have started in August 2008 was unnecessarily delayed by Australia and New Zealand’s desire to keep control of the orchestration of the international relations with Fiji. This strategy is losing credibility.



Harare, Millbrook and Biketewa. One needs to go a little way back in history to see the context and the motivation behind the Australian and New Zealand government’s contradictory approach. These countries were mainly responsible for the Millbrook Action Programme on the Harare Declaration, agreed to at a meeting of Commonwealth Leaders in New Zealand in 1990. The Millbrook Action Programme spelt out the procedure that the Commonwealth would follow in case of serious abuses of Commonwealth principles in the Harare Declaration. This included overthrow of democratically elected governments. The Millbrook Action Programmes said if a government that is overthrown could not be restored sooner, following suspension of membership from the Commonwealth, at most 18 months will be given for the member to hold successfully supervised and monitored elections. And then restoration of full membership would be justified.

The New Zealand and Australian governments had in mind the experience of the 1987 Coups in Fiji. This was seen as a constructive international guideline for collective action by the Commonwealth on restoration of democracy, the rule of law and human rights in a suspend member country within a time frame that was thought reasonable.

In 2000, again Australia and New Zealand initiated at the Pacific Islands Forum the Biketawa Declaration which asserted a procedure for democratic intervention in the Pacific to “uphold democratic processes and institutions.” The Declaration said there were options for sanctions if necessary as targeted measures. Biketawa came about because of the experiences in Bougainville, the Solomon Islands and Fiji. It seemed to envisage both earlier conflict prevention initiatives, and post conflict prevention interventions.

No doubt the Foreign Ministries in New Zealand and Australia were upset that Fiji, after the Tonga Pacific Islands Forum, decided it must have its own timetable for restoration of democracy, directly challenging the commitment made under Biketawa. Helen Clark and Winston Peter’s were still smarting from their failed attempt to broker a deal between Bainimarama and Qarase to prevent the 2006 coup. Probably in their view Fiji’s defiance, if allowed,
would mean failure to enforce Millbrook and Biketawa against the country whose errant ways had given birth to these Declarations in the first place.

Sanctions and Threats of Expulsion. The credibility of Millbrook and Biketawa are at stake, so the threat of suspension is invoked. Sanctions, although irritating to the Interim Government, have failed to secure co-operation from Fiji with the Pacific Islands Forum. The Pacific Islands member states themselves have not implement targeted sanction, like prohibition of Interim government Ministers and officials from entering Pacific Island countries. This has weakened the credibility of these sanctions and the grounds for suspension, as far as the Interim government is concerned.

Putting suspension on the Pacific Islands Forum agenda will place Pacific Islands member states of the Forum in a difficult position since most of them want a resolution that preserves good relations and everybody’s dignity. Suspension from the Commonwealth was a different matter from a first precedent – setting suspension of the host and founder member of the Pacific Islands Forum. The regime of Robert Mugabe, whose record is much worse, has not been suspended from the Organization of African Unity. So why suspend Fiji when we are about to advance further the dialogue process? What purpose will suspension serve at this stage?

NZ and Australian Roles following the 2000 Coup. New Zealand and Australia need reminding that they partly contributed to the causes of the 2006 Coup when in March 2001 they ignored the ruling of their own eminent Judges in Fiji’s Court of Appeal and supported an illegal election. Compliance with the Millbrook Action Programme on Election seemed more important to Australia and New Zealand in 2001 than the rule of law in Fiji. They helped bring into power an ethno-nationalist government that ruled on the basis of rejection of the 1997 Constitutional settlement. It also disastrously mishandled relations with the RFMF.

Australia and New Zealand did nothing to urge moderation on the Qarase government, or to intervene earlier to mediate the consequent conflict between the government and the RFMF after the 2001 Election. By November 2006 when the Australian, New Zealand and UK High Commissioners intervened at Queen Elizabeth Barracks, it was too late.

NZ and Australia deny our legitimacy and encourage the opposition. Like in 2001, Australia and New Zealand have again ignored the Judgment of our High Court that had legally legitimized the Interim government. The High Court had called on the international community to assist the Interim government in its chosen path back towards Constitutional democracy. This practically means there must be flexibility and Fiji should have enough time to prepare for the Election. The Constitutional Review Commission had said 12 to 15 months from the time the Electoral reform is agreed and implemented. Australia and New Zealand should learn the lesson of 2001 and refrain from encouraging the Parties in Fiji that oppose the People’s Charter to continue to hope that the situation before December 2006 can be restored.

The Interim government has been asking for support from the international community to build a stronger foundation for return to Parliamentary democracy. This necessarily means that reform, such as that of the Electoral system, need to be implemented first, out of respect of the will of the majority of Fiji’s people who supported the People’s Charter.

Need to Support for President’s Dialogue Forum and UN Commwealth initiative. The Pacific Islands Forum should be consistent and support the consensus building amongst Political Parties and the President’s Dialogue Forum and leave to this internal process the decision on when to have the Election in Fiji. Continuation of sanctions and suspension of aid will not change the course that the interim government has taken. It is time for the international community to support Fiji’s way forward because there is no other way. Millbrook and Biketawa have not been constructive guidelines as far as Fiji is concerned and need to be reviewed in the light of experience. Fiji is not in breach of international laws. Fiji only wants to alter the timeline for Elections so we can build a firmer foundation for political stability going forward.

Suspension of Fiji from the Forum will also be at odds with the Forum’s support for the Joint UN Commonwealth initiative to facilitate political dialogue towards agreement amongst stake holders in Fiji. The Pacific Islands Forum will be wise to wait until the Joint Commonwealth UN Team complete their work. This will take some time.

Fiji has its sovereign right as an independent nation to decide its national interest and to expect other countries to respect that right and support changes, where possible, that will enable Fiji to be a good and co-operative member of the Commonwealth, the Pacific Islands Forum and the United Nations.

How Fiji deals with its problems could be an example to the international community of how a deeply divided country can resolve serious conflicts peacefully, lawfully and democratically.

*Jone Dakuvula is a former member of the Support Secretariat of the National Council for Building a Better Fiji** and previously worked for the Citizen’s Constitutional Forum (CCF))

.

(+) Australia and New Zealand's Lack of Diplomacy
Aiyaz Sayed-Khaiyum, Interim Attorney-General and Minister for Justice
Fiji Daily Post, 26-Dec. 2008.

[Note: This address was given shortly before the expulsion of Acting NZ High Commissioner Caroline Macdonald, who was said to be expelled for reasons similar to Michael Green.]

There has been much speculation in the media about the relationship between New Zealand and Australia on one hand and Fiji on the other and about the acting New Zealand High Commissioner’s stay in Fiji.We want to lay out a number of facts in relation to our foreign relations both with Australia and New Zealand and the other Pacific island countries.The Government wants cordial relationships with all countries of the world. It in particular wants to maintain strong relationships with its Pacific island neighbours including Australia and New Zealand. These relationships, however, must be built on mutual trust, confidence, respect and dignity.Mutual trust, respect and accordance of dignity however, has been lacking by the Australian and New Zealand governments. Their lack of consistency and patronizing attitude towards Fiji and her people and the Pacific in general has been staggering.

In diplomatic terms the High Commissions of Australia and New Zealand have been almost completely disengaged with the Government of Fiji over the past 23 months.The heads of their missions do not engage with the government ministers and the State at a political level.The existence of diplomatic missions is to engage with the country in which they are based. The Australians and New Zealanders have not adhered to this basic principle.

They claim the Government of Fiji is illegal. This is factually incorrect. We have a High Court ruling that states that the interim Government was validly appointed by His Excellency our President. In 2000 both these two governments engaged fully with the then interim Government which the Court had declared was illegal. In 1987 it engaged with the decree-led Government for 5 years, following the removal of the Bavadra Government and the 1970 Constitution.Their inconsistency extends beyond Fiji. When governments were removed in Thailand and Pakistan the Australia and New Zealand Governments continued full diplomatic engagement.

If they argue that there is no parliamentary democracy, the way they want it and that is why they are not engaging with the Fijian Government, then again they are inconsistent. They actively engage with China, with Tonga, with Thailand and with numerous other countries which have different rules for governance, representation, or have had governments removed.

One is then left with the only conclusion that the governments of Australia and New Zealand are simply bullying the Pacific, believe they can engage with Fiji and the Pacific in whichever form they want and we in the Pacific are expected to just sit back like children and accept it.

The abuse of diplomacy has extended to their missions, and not only by disengaging with the Fijian Government but by actively engaging with those who are opposed to the Government. They have been engaged in local politics, they are engaged in creating disquiet within the population. This is why Michael Green was sent back.They have encouraged their local staff to become spies for them. These local staff should be ashamed of themselves for betraying and spying on their fellow country men and women.

This lack of diplomacy would not be tolerated in any other country. The Australians and New Zealanders would not do this in other countries and indeed would not tolerate this happening in their own countries.They believe they can impose whatever they want in the Pacific and with impunity.There is a word for this attitude and behaviour, neo-colonialism.

They do not treat us with dignity and respect. They send their junior staff to the laying of wreaths on Remembrance Day. This November all heads of missions turned up to the ceremony except, Australia, New Zealand and Britain. They have not even spared the dead in their political posturing. It is an insult to the brave men and women who died not only serving Fiji but the allies which included Australia and New Zealand.

When our Prime Minister had a bi-lateral meeting with Steven Smith a few weeks ago it was put to him that the Australian authorities are tapping our phones. He did not deny it. Ladies and gentlemen, the tapping of phones in Fiji is illegal.

It has also become apparent that Australia and New Zealand appear to be dictating to the rest of the Pacific Island countries as to how Fiji should be dealt with. They have even sought to preempt the outcome of the MCG report.It should also be mentioned that the current chair of the forum has been misleading in his comments. He has claimed that he heard about the shift in the March 09 election date through the media. This is not true. The PM sent him a bundle of documents some months back which set out the proposal for the political dialogue forum and the ensuing processes mapping out the road to elections.

Ladies and gentlemen, the reality is that none of the Pacific Island countries treat us in the manner in which Australia and New Zealand do. These two countries are the richest and most powerful in the Pacific. The reality is they believe that their way is the only way even if they have been inconsistent, even if what we want is right and good on a universal basis and for us.The values and systems of equal suffrage, of non-ethnic voting, of having accountable politicians, of equal and common citizenry, of removing systemic corruption cannot be faulted. These principles and values are what this Government wants and shall put in place.

It will not be moved by the bullying tactics of Australia and New Zealand. It wants to engage with Australia and New Zealand on equal and fair terms, and with dignity. To this end the PM shall announce in the next few days the appointment of a special team to engender better relations with New Zealand. We must as a nation and indeed as people of the Pacific stand up to such bullying tactics, we must be proud of our country and not be intimidated.We need to constructively engage with each other but that engagement must be based on respect for the differences between our countries and on respect for each other as sovereign nations.