Those who have followed Fiji’s troubled recent past will no doubt be aware that the political situation there has prompted the Commonwealth to threaten suspending its membership, that the US State Department’s annual report has cited a number of concerns about the rule of law and that the International Bar Association’s Human Rights Institute (IBAHRI) has released a comprehensive report (Dire Straits: A report on the rule of law in Fiji) which highlights numerous problems in the Fijian justice system.
So why the fuss? It’s been more than two years since Commodore Bainimarama seized power in a coup, and while there’s been little to no progress towards elections the country doesn’t appear to be unstable or otherwise dangerous.
There are, however, many reasons why the international community should be concerned. The IBAHRI’s 118-page report, compiled by a high-level international delegation, states that the justice system in Fiji has deteriorated steadily since the coup, and expresses concerns about the influence of the interim regime’s executive on the judiciary, the legal profession, the Human Rights Commission and the media.
These bodies are responsible for maintaining crucial checks and balances on the power of the executive, so constraints on their free ability to act can have disturbing consequences. Combined with the government’s announcement that it intends to delay elections indefinitely, the country’s situation is in dire straits indeed.
The interim government claims regularly that there is no evidence that there has been executive influence in the judiciary. This claim is somewhat baffling given the well-known suspension of the former Chief Justice by the interim regime and the considerable delays to the misconduct hearing of the charges against him. This situation “resolved” itself in a surprise agreement between the interim regime and the Chief Justice in December 2008 when the Chief Justice resigned in exchange for a large financial payout.
The IBAHRI considers that if the Chief Justice was reasonably suspected of misconduct, then the charges should have been heard by an independent tribunal, whereas if the charges were not reasonable, then the suspension of the Chief Justice and his facilitated resignation constituted a serious infringement into judicial independence. Either conclusion implies a disturbing disregard for the separation of powers doctrine and the rule of law.
This is sadly not the only concern raised by the IBAHRI report on the judiciary. Examples of judges failing to recuse themselves from hearing cases which directly relate to their own appointment; a record of one particular judge regularly issuing stays - judicial postponements - on decisions made by other judges that conflict with government interests; an apparently entrenched divide between two sectors of the judiciary and the use of so-called “beratement” proceedings by judges to intimidate critics of the judiciary, reflect that there are problems throughout the Fijian judiciary and the dispensation of justice more generally.
A brief review of the situation in Fiji highlights the personal and emotional nature of the divide that has fractured the judiciary and the legal profession. The former government had many detractors, and criticisms abound concerning the electoral processes that led to former Prime Minister Qarase’s re-election in late 2006. This ensured some support for the military coup that led to the establishment of the interim regime but at high levels, this support has serious consequences. For example, Dr Shaista Shameem, the current Chair of the Fiji Human Rights Commission, appears to be failing to hold the actions of the interim regime up to scrutiny.
It is, of course, deeply disappointing to see the judiciary in Fiji becoming increasingly compromised, and the actions of its judges to be questionable. In previous coups, the judiciary had proven itself to be a bulwark of justice against the various political calamities that arose, and judges appeared to have abided by their constitutional oaths.
The appointment of Australian judges by the interim regime to the Fiji Bar such as Justices John Byrne, Jocelynne Scutt and Thomas Hickie has also recently entered the media spotlight, as the Australian Bar Association has advised its members to read the IBAHRI report before accepting a position on the Fijian bench. This brings the situation in Fiji firmly into the domestic context as top Australian lawyers must consider their own responsibilities in either supporting or rejecting the deterioration in the rule of law in Fiji.
The IBAHRI has monitored events in Fiji for a number of years. In 2001, it sent an international trial observer to the Prasad case, in which the coup of the year before was held to be unconstitutional by Fiji’s Court of Appeal. In 2006, the IBAHRI released a report criticising the proposed Reconciliation and Tolerance Bill, created by Prime Minister Qarase’s government. Importantly though, the IBAHRI does not hold views on who should be in power in Fiji except that the government should be elected by the people in accordance with international democratic standards.
Without a robust judiciary to restrict the actions of the interim regime, Fiji is sinking ever deeper into the consequences of the December 2006 coup and the ongoing refusal of the interim regime to call elections. Without legitimacy, every action by a government is questionable and, when these actions impact negatively upon the legal profession, the media and the judiciary, they become unacceptable.
The views expressed in this article are not necessarily those of the IBAHRI.