POSTSCRIPT and EXPLANATION. Several readers (see Comments) seem to think I wrote this article and, not unusually, have accused me of saying things I have not said. To correct this misunderstaning, my main contribution was in publishing a summary of Dodds report by Eduardo Reyes, and in adding subheadings to the critique written by 'Sudden Shelley' My only other contribution is shown in blue type. These readers should read more carefully before they comment.
Late last year UK Law Society Charity chair Nigel Dodds made a covert trip to Fiji that concluded the rule of law was ‘lost.’ The report was written up by the Law Society feature editor Eduardo Reyes who said it would eventually be published on their website. The main points of the report, as published by Reyes, were:
Late last year UK Law Society Charity chair Nigel Dodds made a covert trip to Fiji that concluded the rule of law was ‘lost.’ The report was written up by the Law Society feature editor Eduardo Reyes who said it would eventually be published on their website. The main points of the report, as published by Reyes, were:
• Subterfuge was necessary because the Fiji government had refused entry to an International Bar Association delegation in 2009. [It has, however, extended an open invitatation to NZ Law Society President Jonathon Temms to visit Fiji and 'see for himself').
• The rule of law no longer operates; the independence of the judiciary cannot be relied upon, and there is no freedom of expression..
• Attorney-general, Aiyaz Sayed-Khaiyum, has been central to ending the rule of law by limiting the power of the courts and ending the independence of legal sector regulation.
• The Government depends on the appointment of judges and senior law officers from Sri Lanka on short-term contracts, but judges need security of tenure. .
• Fiji's largest commercial law firm, Munro Leys, once the government of Fiji’s main provider of legal services, no longer receives government business.
• The 2009 Administration of Justice Act removed the jurisdiction of the court to hear or determine a challenge to any government action.
• Fiji Law Society accreditation of lawyers has been replaced by government issuing practisi'ng certificates.
The article was published in full by the NZ Herald (click link here) and Minister McCully thought the report not very encouraging. Unfortunately, he is unlikely to read this critique of the report that casts serious doubtrs on its sources and conclusions. Dodds made no approach to the Attorney-General, Government's legal spokesman, and apparently only contacted Graham Leung and possibly other members of the Fiji Law Society.
Critique: The Rule of Law Report by
the UK Law Society Charity
By Sudden Shelley
the UK Law Society Charity
By Sudden Shelley
The independence of the judiciary cannot be compromised by activist elitist groups who espouse political causes. In good times and in bad the judiciary’s role is not to take on governments, whether lawful or unlawful, but to rule on cases brought before the courts. This is a more pedestrian role. But as usual, activists and partisans wish to use the judiciary as a weapon of combat for their political ends.
Fiji Law Society claims not supported by UK and other regulation systems
The Fiji Law Society cannot claim that it is the rightful body for discipline or licensing of lawyers. Other jurisdictions including that of England and Wales have moved away from self-regulation to statutory regulation, which has included the creation of the position of Legal Complaints Ombudsman. This is similarly the case in Australia, New Zealand and other Commonwealth jurisdictions with minor variations.
Self-regulation has been rejected by a wide body of consumer associations, including the Consumer Council of Fiji. The public has demanded greater accountability from the legal profession, long held in low esteem in Fiji. The last Transparency International Global Perception Index on corruption in Fiji found that the majority of the public thought that the legal profession and the judiciary were corrupt [2005 Index]. Clearly there was an imperative need for change.
When the Independent Legal Services Commission was set up in 2009, it was discovered that over 400 complaints which had been filed with the Fiji Law Society lay unattended. Many such complaints had been brought against the current and four previous Presidents of the Law Society and Council members. When the Commission commenced sittings, many of the prosecutions were brought in relation to former Presidents. Thus the delay of the Society’s authorities in prosecuting these complaints went beyond the mere systemic. The public saw that the police, as it were, were unable to police themselves.
Hand over Complaints files, and the Dorsami Naidu case
The attitude of the Law Society will explain why the Chief Registrar had to insist on the handover of the Complaint files and why it was necessary for her to refer to her authority and powers under the Decree. The then President of the Fiji Law Society Mr. Dorsami Naidu has since been disciplined. This was not for any political offence, but for drawing up conveyancing documents in relation to the purchase of land without disclosing that the land was not owned by the vendor alone, but was owned jointly with another, and hence that under the transaction, the purchaser was only buying a half interest.
By the same reasoning UK judges support Government
The critics of the Independent Legal Services Commissioner assume support for the Government by virtue of taking up office. By this reasoning, every High Court Judge in England is to be taken to support the Government of the day, by virtue of the agreement to take up office. The critics do not condescend to any details nor do they refer to a specific judgment which they regard as defective. There is nothing of substance in this vague allegation, which appears to be a political rather than a law and justice comment.
The control of the professional prosecution unit for legal practitioners in the Chief Registrar’s Office is given to a civil servant and not to a politician. Previously, lawyers controlled lawyers at times when many of the previous presidents were politicians and members of Parliament. No complaints of this so-called independent procedure were then heard from these same international bodies of a lack of demonstrable political neutrality.
Josaia Naigulevu 'long-standing and respected'?
The Report refers to Josaia Naigulevu as “long-standing and respected”. This was the same person who used to hold prayer sessions within the confines of the DPP’s Office. Some of these were held to pray for success in appeals, and many members of the Office felt it prudent to be seen to attend if they wished to advance in the Office. As Acting DPP, Naigulevu swore an affidavit in the Chandrika Prasad case in which the courts eventually upheld the Constitution. Naigulevu chose to depose to active support for the illegal Qarase SDL regime, which had obtained power through the usurping civilian coup masters. Strangely, or perhaps not, the Acting DPP was made substantive DPP shortly thereafter. And this was the same Naigulevu who had concealed the fact that he had sworn such an affidavit in favour of the Respondent regime when answering questions from the International Criminal Court to which he had applied for the job of Deputy Prosecutor.
2000 coup files locked away
Many of the files dealing with crimes, including treason, committed at the time of the 2000 coup were locked away by Naigulevu for some years to gather dust. These were discovered by his successor who found that many of the prosecutions were by then time-barred. The alleged perpetrators thus did not have their day in court.
Favours exchanged?
This was the same Naigulevu who had a noisy and violent altercation with his then wife who lodged a formal complaint with the police that he had tried to strangle her. The medical evidence in the case confirmed injuries consistent with her complaint. However the Police Commissioner Mr. Andrew Hughes delayed the decision to lay charges. Meanwhile, the Director was requested to consider whether there was sufficient evidence to arrest Bainimarama in New Zealand on charges of sedition. The DPP did agree that there was sufficient evidence against Bainimarama, and the charges against the DPP were never laid.
Sri Lankans and racist overtones?
Whoever was the author of this Report is undoubtedly a racist. To say that the prosecution offices “became populated with Sri Lankans” follows the Nazi gripe that there were too many Jews populating Germany. These are the kind of comments we might expect from those hiding within the reeds of the internet, hoping to remain concealed whilst they spew out shameful pieces of racism. The racism is to be seen also in the derogatory comments on members of the judiciary who happen to be Sri Lankans. The issue for proper consideration is whether the judges sitting on the courts of Fiji are intellectually honest. A good idea as to whether that is so can be derived from a trawl through the judgments on the judicial website www.judiciary.gov.fj or PACLII.
Go tell it to the Americans
The Commonwealth Law Conference sub-committee has no business poking its nose into the judicial appointment system of another jurisdiction, whether friendly or a member of the Commonwealth. Fiji might have been thought to have been both. Perhaps the Committee could give some soothing advice to the Americans, an ancient jurisdiction, on how they could de-politicise the US system of appointments to their Benches. But in reality it is none of their business. It is for the Americans to seek reform and to fix.
Incidentally what is wrong with the Chief Justice using a personal connection with a friendly Commonwealth country in order to provide necessary numbers for the Fiji Bench? The Fiji Bench has had connections with the Sri Lankan Bench since the early 1980’s. And was it out of order for the Fiji Bench to secure the services of expatriate English judges since before Cession in the 1870’s?
The recommendations in the Report appear to conflict with the rights of free expression, privacy, and free choice. The authors could benefit from a summer course on the decisions of the US Supreme Court on these matters over the last 50 years.
Graeme Leung's choice
Graeme Leung tells us he is not practising in Fiji at the moment. That was his decision alone. He was not joined by any other member of the Bar in that decision. All other members of the Bar applied for and received the issuance of their practicing certificates. No one has prevented Mr. Leung from obtaining a practicing certificate. The new procedures for scrutinizing the applications for practicing certificates have been instituted as a matter of consumer protection. Mr Leung’s decision can only be characterized as his own individual political statement.
It is clear the main informant (author?) of the Report is Graeme Leung, who was not noticeable for an interest in matters of professional ethics and practice when he was President of the Fiji Law Society. His history in the civil service did not shine forth with an interest in democratic values either. Forced to leave the DPP’s Office in 1985 over a financial impropriety, he became the Fiji Police Advisor, a position he held during the 1987 coup. He did not then think it right to leave Government service because of the nationalist and military coup, an occurrence of obvious unlawfulness. Instead he continued to work for the Attorney General’s Office until he was transferred to Fiji’s U.N. Embassy in New York as First Secretary. Eventually he fell out with the Ambassador and was recalled to the Attorney General’s Office, leaving behind a number of personal bills unpaid. They did not appear to be connected with official matters. Much mirth was created over two of the purchases – one was a “love seat” and the other, bills for telephone calls to a telephone sex service.
Leung: Conflict of interest?
At the time of the 2006 elections Leung was the Chairman of the Electoral Commission. At the same time he was President of the Fiji Law Society. Apart from the apparent conflict of roles, he did not earn a reputation as Chairman for looking into complaints about registration irregularities or other procedures leading up to the elections. It was said that he had tried to persuade Ratu Tevita Mara to stand in the elections for the SDL party. These improprieties colored his independence and explain his anger at the removal of the Qarase government in late 2006. He was very close to Ratu Joni Madraiwiwi the Vice President and thought from his daily visits to Government House, to be a close advisor.
Permits required since 1969
As a former prosecutor Leung would have known that the requirement for a permit for the assembly of persons numbering three or more came not from the Public Emergency Regulations 2009, but from section 8 of the Public Order Act 1969, a piece of legislation thought fitting for Fiji by the British colonial government. There was nothing remarkable about the Public Order Act which the British legislated for in many of their overseas possessions. The need to have a permit for a meeting long pre-dated the 2006 coup. This was known to Leung.
The Report demonstrates ..
This Report demonstrates how a flawed methodology and lack of objectivity at the outset leads to a skewed outcome. This was a Report written during a private visit by the (unrevealed) Chairman who met no one other than Leung’s close friends and associates. He has not revealed his sources, or whether he made any attempt to speak with sitting judges or members of the magistracy. He did not speak with the Chief Registrar or the Independent Legal Services Commissioner, to discuss the workings of the Legal Practitioners Decree.
PACLII not consulted
But as has been said before, the workings of the complaints procedure and of the judiciary can only properly be tested by examining closely the reasoning of the decisions of the Commissioner and of the judiciary. No such analysis has been done. It is noticeable that the regional website (PACLII) which carries the judgments of the judiciary has already had intimations that Australian government support may be withdrawn. Is it that our regional neighbors who maintain a hostile blockade do not wish to have evidence of a viable working and intellectually honest judiciary shown on the internet?
Professionalism lacking
The authors of the Report purport to propagate the ethos and work of a charity. One wonders what the Charity Commissioner would make of this Report. Is this genuine charitable work? Or sub-contracted political advocacy? There is little of professionalism here.
Fiji Law Society claims not supported by UK and other regulation systems
The Fiji Law Society cannot claim that it is the rightful body for discipline or licensing of lawyers. Other jurisdictions including that of England and Wales have moved away from self-regulation to statutory regulation, which has included the creation of the position of Legal Complaints Ombudsman. This is similarly the case in Australia, New Zealand and other Commonwealth jurisdictions with minor variations.
Self-regulation has been rejected by a wide body of consumer associations, including the Consumer Council of Fiji. The public has demanded greater accountability from the legal profession, long held in low esteem in Fiji. The last Transparency International Global Perception Index on corruption in Fiji found that the majority of the public thought that the legal profession and the judiciary were corrupt [2005 Index]. Clearly there was an imperative need for change.
When the Independent Legal Services Commission was set up in 2009, it was discovered that over 400 complaints which had been filed with the Fiji Law Society lay unattended. Many such complaints had been brought against the current and four previous Presidents of the Law Society and Council members. When the Commission commenced sittings, many of the prosecutions were brought in relation to former Presidents. Thus the delay of the Society’s authorities in prosecuting these complaints went beyond the mere systemic. The public saw that the police, as it were, were unable to police themselves.
Hand over Complaints files, and the Dorsami Naidu case
The attitude of the Law Society will explain why the Chief Registrar had to insist on the handover of the Complaint files and why it was necessary for her to refer to her authority and powers under the Decree. The then President of the Fiji Law Society Mr. Dorsami Naidu has since been disciplined. This was not for any political offence, but for drawing up conveyancing documents in relation to the purchase of land without disclosing that the land was not owned by the vendor alone, but was owned jointly with another, and hence that under the transaction, the purchaser was only buying a half interest.
By the same reasoning UK judges support Government
The critics of the Independent Legal Services Commissioner assume support for the Government by virtue of taking up office. By this reasoning, every High Court Judge in England is to be taken to support the Government of the day, by virtue of the agreement to take up office. The critics do not condescend to any details nor do they refer to a specific judgment which they regard as defective. There is nothing of substance in this vague allegation, which appears to be a political rather than a law and justice comment.
The control of the professional prosecution unit for legal practitioners in the Chief Registrar’s Office is given to a civil servant and not to a politician. Previously, lawyers controlled lawyers at times when many of the previous presidents were politicians and members of Parliament. No complaints of this so-called independent procedure were then heard from these same international bodies of a lack of demonstrable political neutrality.
Josaia Naigulevu 'long-standing and respected'?
The Report refers to Josaia Naigulevu as “long-standing and respected”. This was the same person who used to hold prayer sessions within the confines of the DPP’s Office. Some of these were held to pray for success in appeals, and many members of the Office felt it prudent to be seen to attend if they wished to advance in the Office. As Acting DPP, Naigulevu swore an affidavit in the Chandrika Prasad case in which the courts eventually upheld the Constitution. Naigulevu chose to depose to active support for the illegal Qarase SDL regime, which had obtained power through the usurping civilian coup masters. Strangely, or perhaps not, the Acting DPP was made substantive DPP shortly thereafter. And this was the same Naigulevu who had concealed the fact that he had sworn such an affidavit in favour of the Respondent regime when answering questions from the International Criminal Court to which he had applied for the job of Deputy Prosecutor.
2000 coup files locked away
Many of the files dealing with crimes, including treason, committed at the time of the 2000 coup were locked away by Naigulevu for some years to gather dust. These were discovered by his successor who found that many of the prosecutions were by then time-barred. The alleged perpetrators thus did not have their day in court.
Favours exchanged?
This was the same Naigulevu who had a noisy and violent altercation with his then wife who lodged a formal complaint with the police that he had tried to strangle her. The medical evidence in the case confirmed injuries consistent with her complaint. However the Police Commissioner Mr. Andrew Hughes delayed the decision to lay charges. Meanwhile, the Director was requested to consider whether there was sufficient evidence to arrest Bainimarama in New Zealand on charges of sedition. The DPP did agree that there was sufficient evidence against Bainimarama, and the charges against the DPP were never laid.
Sri Lankans and racist overtones?
Whoever was the author of this Report is undoubtedly a racist. To say that the prosecution offices “became populated with Sri Lankans” follows the Nazi gripe that there were too many Jews populating Germany. These are the kind of comments we might expect from those hiding within the reeds of the internet, hoping to remain concealed whilst they spew out shameful pieces of racism. The racism is to be seen also in the derogatory comments on members of the judiciary who happen to be Sri Lankans. The issue for proper consideration is whether the judges sitting on the courts of Fiji are intellectually honest. A good idea as to whether that is so can be derived from a trawl through the judgments on the judicial website www.judiciary.gov.fj or PACLII.
Go tell it to the Americans
The Commonwealth Law Conference sub-committee has no business poking its nose into the judicial appointment system of another jurisdiction, whether friendly or a member of the Commonwealth. Fiji might have been thought to have been both. Perhaps the Committee could give some soothing advice to the Americans, an ancient jurisdiction, on how they could de-politicise the US system of appointments to their Benches. But in reality it is none of their business. It is for the Americans to seek reform and to fix.
Incidentally what is wrong with the Chief Justice using a personal connection with a friendly Commonwealth country in order to provide necessary numbers for the Fiji Bench? The Fiji Bench has had connections with the Sri Lankan Bench since the early 1980’s. And was it out of order for the Fiji Bench to secure the services of expatriate English judges since before Cession in the 1870’s?
The recommendations in the Report appear to conflict with the rights of free expression, privacy, and free choice. The authors could benefit from a summer course on the decisions of the US Supreme Court on these matters over the last 50 years.
Graeme Leung's choice
Graeme Leung tells us he is not practising in Fiji at the moment. That was his decision alone. He was not joined by any other member of the Bar in that decision. All other members of the Bar applied for and received the issuance of their practicing certificates. No one has prevented Mr. Leung from obtaining a practicing certificate. The new procedures for scrutinizing the applications for practicing certificates have been instituted as a matter of consumer protection. Mr Leung’s decision can only be characterized as his own individual political statement.
It is clear the main informant (author?) of the Report is Graeme Leung, who was not noticeable for an interest in matters of professional ethics and practice when he was President of the Fiji Law Society. His history in the civil service did not shine forth with an interest in democratic values either. Forced to leave the DPP’s Office in 1985 over a financial impropriety, he became the Fiji Police Advisor, a position he held during the 1987 coup. He did not then think it right to leave Government service because of the nationalist and military coup, an occurrence of obvious unlawfulness. Instead he continued to work for the Attorney General’s Office until he was transferred to Fiji’s U.N. Embassy in New York as First Secretary. Eventually he fell out with the Ambassador and was recalled to the Attorney General’s Office, leaving behind a number of personal bills unpaid. They did not appear to be connected with official matters. Much mirth was created over two of the purchases – one was a “love seat” and the other, bills for telephone calls to a telephone sex service.
Leung: Conflict of interest?
At the time of the 2006 elections Leung was the Chairman of the Electoral Commission. At the same time he was President of the Fiji Law Society. Apart from the apparent conflict of roles, he did not earn a reputation as Chairman for looking into complaints about registration irregularities or other procedures leading up to the elections. It was said that he had tried to persuade Ratu Tevita Mara to stand in the elections for the SDL party. These improprieties colored his independence and explain his anger at the removal of the Qarase government in late 2006. He was very close to Ratu Joni Madraiwiwi the Vice President and thought from his daily visits to Government House, to be a close advisor.
Permits required since 1969
As a former prosecutor Leung would have known that the requirement for a permit for the assembly of persons numbering three or more came not from the Public Emergency Regulations 2009, but from section 8 of the Public Order Act 1969, a piece of legislation thought fitting for Fiji by the British colonial government. There was nothing remarkable about the Public Order Act which the British legislated for in many of their overseas possessions. The need to have a permit for a meeting long pre-dated the 2006 coup. This was known to Leung.
The Report demonstrates ..
This Report demonstrates how a flawed methodology and lack of objectivity at the outset leads to a skewed outcome. This was a Report written during a private visit by the (unrevealed) Chairman who met no one other than Leung’s close friends and associates. He has not revealed his sources, or whether he made any attempt to speak with sitting judges or members of the magistracy. He did not speak with the Chief Registrar or the Independent Legal Services Commissioner, to discuss the workings of the Legal Practitioners Decree.
PACLII not consulted
But as has been said before, the workings of the complaints procedure and of the judiciary can only properly be tested by examining closely the reasoning of the decisions of the Commissioner and of the judiciary. No such analysis has been done. It is noticeable that the regional website (PACLII) which carries the judgments of the judiciary has already had intimations that Australian government support may be withdrawn. Is it that our regional neighbors who maintain a hostile blockade do not wish to have evidence of a viable working and intellectually honest judiciary shown on the internet?
Professionalism lacking
The authors of the Report purport to propagate the ethos and work of a charity. One wonders what the Charity Commissioner would make of this Report. Is this genuine charitable work? Or sub-contracted political advocacy? There is little of professionalism here.
Taukei. said... 
Radiolucas said... 
