AN OBSERVER mission to Fiji has just returned to Australia and has released a report to leading legal figures on ongoing uncertainty and what some have labelled a politicised and divided judiciary in that country.
Blake Dawson Waldron partner Gordon Hughes was one of four members of the LAWASIA Observer Mission to Fiji, which between 25 and 28 March assessed the impact of recent political events on the country’s judiciary.
Hughes, the former president of LAWASIA, the Law Council of Australia and the Law Institute of Victoria, joined Mah Weng Kwai, president of LAWASIA; Raoul Guides, former president of the Queensland Law Society; and Janet Neville, chief executive officer of LAWASIA on the mission.
While the members of the mission were unwilling to comment on the political situation in Fiji, it has released a report making recommendations and observations on issues including the impact of the recent coup on the rule of law, and the varying perceptions of the suspension of Chief Justice Daniel Fatiaki.
Among the recommendations by the observer mission was an acknowledgement that the rule of law may be compromised by the uncertainty of the status and future of the suspended Chief Justice. There is an ongoing public perception that the judiciary is politicised and divided, it reported.
In an interview with Lawyers Weekly, Hughes said LAWASIA decided to send an observer mission to Fiji because, like all other international legal organisations, it was concerned to learn of the suspension of the Chief Justice.
“Whenever the Government suspends a judge, particularly a Chief Justice, and particularly when that’s done by a newly installed government, there are immediate concerns about threats to the independence of the judiciary. We have numerous second hand reports about the background but we wanted to go and speak to as many of the individuals involved as possible,” he said.
On 3 January this year, the report states, the Chief Justice was allegedly told by Deputy Commander Captain Teleni of the Republic of Fiji Military Force to take leave in anticipation of an enquiry into complaints against the judiciary. “He was allegedly advised that if he refused to take leave, he would be removed from office,” LAWASIA’s observer mission reported.
The mission concluded that whilst it remained concerned about the suspension of the Chief Justice, it came away with a “heightened appreciation of how complex the issues are and the fact that these events cannot be viewed in isolation”, Hughes said.
He argued that the issues need to be looked at in the context of ongoing trouble within the judiciary, and ongoing difficulties in the relationship between the judiciary and the Government that go back to the 2000 coup.
But Hughes would not comment on the accuracy of the allegations made against the Chief Justice. Instead, he cited the report which said the most effective way of resolving the status of the Chief Justice is for charges to be particularised and then heard before a tribunal, which is to be established under section 138(3)(a) of the Constitution.
“We quite specifically didn’t express a view about the accuracy or otherwise of the myriad of allegations and counter allegations that have been made. This is not to say that we were abrogating any responsibility. What we concluded was that the issue has become highly charged, with passionate views held on both sides, and quite differing interpretations of things of the motives of certain things that have happened in the past.
“We felt it was important to start to wipe the slate clean and focus more on the actual problems rather than background rhetoric. We concluded that whether or not one believes the suspension of the Chief Justice was justified, mere words are not going to solve the problem,” Hughes said.
The observer mission supported the establishment of the proposed tribunal. “We think that the only way of bringing this issue to finality, one way or the other, is to encourage that tribunal to sit as soon as possible, and to hear those allegations,” Hughes said.
Hughes declined to comment on the lawfulness of the tribunal, though he acknowledged that some people subscribe to the view that the tribunal is unlawful, the Government is unlawful and the tribunal hasn’t been validly constituted.
“We quite deliberately don’t express a view one way or the other as to the lawfulness of what has happened, but seek to emphasise that one has to accept the current information.
“Let’s ensure the tribunal process is an independent one and that it perceives to hear these issues as soon as possible, and that both sides of the argument are brought out in public,” he said.
“Let us hope there can be some independent adjudication of the whole complexity of issues, not just the immediacy of the Chief Justice’s suspension, but all the background tensions and lead up to it.”
Hughes said the mission would be keen for the issue to be put to rest “once and for all, so that the judiciary can focus on the future, rather than being sidetracked by the various divisions that have existed in the past”.
The observer mission stated in its report that members of the legal profession must be entitled to speak openly about issues without fear of intimidation by the military. It also claimed that an international effort is required to provide assistance to the Fijian courts in order to overcome current under-resourcing.