Sunday, June 10, 2007

Lawyers must cry freedom to the challenge in Fiji -Saturday, June 09, 2007

Graham Leung - Remarks at the 20th Biennial LawAsia Conference Hong Kong, Friday 8 June 2007

LET me first congratulate the Hong Kong Law Society on the celebration of its centenary. This is a remarkable achievement and I pay tribute to its founders and leaders who have brought the HK Law Society to its present esteemed status. I would also like to offer my congratulations to the new President of the HK Law Society. It is an excellent choice and I have no doubt that Lester's wisdom, integrity and experience will further advance the noble goals of your society.
On 5 December 2006 the Republic of Fiji Military Forces led by its Commander, Commodore J V Bainimarama, ousted the elected Government of Prime Minister Qarase. It was Fiji's fourth coup in a little under 20 years.
What is significant about this one was the extent to which senior members of the bench and bar appear to have been complicit, either before the event or subsequently. There is as yet an incomplete awareness in the wider community about the sanctity of the rule of law.
In such circumstances, where the ordinary person looks to lawyers for leadership and guidance and finds instead ambivalence and dissembling, the implications both immediate and long term, are serious.
It is both instructive and revealing that those who overthrow the established legal order, whether in uniform or otherwise, nevertheless feel the need for legitimising their actions in legal terms. In his first remarks concerning the coup, the commander invoked the doctrine of necessity. It was the first indication that the military had been assisted by elements in the legal fraternity. The extent of the Commander's familiarity with the principles relating to necessity indicated as much.
Perhaps the only caveat was that it had been misapplied: there was no crisis other than the one created' by the military by its public statements, and defiance of the Government in the months preceding 5 December.
It was the contention of the military that it had been left with no choice but to intervene, following the alleged refusal of the Qarase Government to effectively deal with purported widespread corruption and abuse of office. The military claimed the President had been prevented from either dissolving Parliament or declaring a state of emergency by the machinations of some of his advisers, including the Vice-President.
The truth is less inspiring: there was in fact no basis for the President to intervene constitutionally. There was no evidence the Prime Minister had lost control of the machinery of the Government other than by the military's antics in its gradual seizure of the State apparatus.
The military had originally sought to exploit the President as a cloak to shield their actions. When that failed, they intervened directly.
The commander proceeded to appoint himself acting President on 7 December 2006 reposing in himself the executive authority of the State nominally vested in the President by section 85 of the Constitution. Section 96(1) states that authority is exercised only on the advice of Cabinet or a Minister or some other body prescribed by the Constitution.
Subsection (2) provides the President may act independently where there is specific provision for that course. It was pursuant to this assumption of executive authority that the commander purported to suspend the Chief Justice on unspecified charges on 3 January 2007.
Not since the coups of 1987 had the judiciary been directly assailed. At that time, a few of the judges were arrested and incarcerated. Several resigned, both after the first coup in May and the second in September 1987.
In seizing power, the commander pledged inter alia to uphold the Constitution, respect the independence of the judiciary and protect human rights. On 3 January 2007 the Director of the Fiji Human Rights Commission (the Commission), Doctor Shaista Shameem, a lawyer issued a 32-page document which was described as an "investigation report based on an assessment of the commander's assumption of legal authority"
It concluded thus:
"The result of this investigation and assessment of the legality or otherwise of the assumption of executive authority by the RFMF is that authority was assumed over a Government that first of all established on a foundation of illegality in 2001, and secondly over a Government that was elected unconstitutionally in 2006. Between 2001 and 2005, the Government put in place unconstitutional policies and legislation that, in addition, violated Fiji's obligations under the ICERD as pointed out by the CERD Committee in 2002".
Dr Shameem asserted that the military had the capacity to invoke human rights and welfare powers pursuant to section 94 of the 1990 Constitution and section 112 of the 1997 Constitution. Leaving aside for a moment the better view that the provision she sought to import from the 1990 Constitution has been repealed, the position she assumed was not only problematical but destructive of the rule of law. The claims of the unconstitutionality of the Qarase Governments (2001 2006, 2006) are hollow: no legal challenge was ever mounted during their tenure.
A close reading of the Investigation Report' bears a remarkable resemblance to the Commander's first post-coup remarks where he set out at length the rationale and legal justification for the coup. The similarities do not end there. Dr Shameem has been openly supportive of the military's heavy-handed tactics in dealing with human rights activists and other dissidents since 5 December 2006. She has constantly reminded the public of the need to observe circumspection in an environment where human rights have been curtailed. Coming from the Director of the Commission, in a situation where the legalities concerning the issue of human rights are a debatable issue, the credibility and standing of the Commission has been seriously compromised. This is reflected in the relatively low number of human rights abuses reported to the Commission as compared with the matrix of cases compiled by several human rights organisations.
As if this developing symbiosis between the Commission and the military were not enough, the Fiji judiciary remains bitterly divided. Its origins can be traced to the 19 May 2000 coup. At the time the then Chief Justice and two of his colleagues chose to engage with the Military Government that had taken control on the back of George Speight's failed putsch. These dealings were confined to vetting the Judicature Decree which inter alia improved the conditions of the Chief Justice. This provoked an outcry from other colleagues on the bench as well as from then President of the Fiji Law Society (FLS). The President of FLS at the time, was particularly vocal. The new Chief Justice, Hon Daniel Fatiaki, succeeded Sir Timoci Tuivaga in 2002. He was one of the judges who had supported his predecessor in his relations with the military Government.
The division between himself and three other judges, Byrne, Gates and Shameem JJ, who adopted an appropriate legal position of distance, was not remedied and continues to the present day.
In one of her remarks at an international gathering of judges, Madam Justice Shameem put the lessons learnt from May 2000 eloquently:
"What are those lessons? Firstly, to stay out of the fray in a political crisis. Secondly, to uphold the law as long as it is possible to do so. Thirdly, to avoid collaborating with those whose actions may become the subject of constitutional litigation. Fourthly, to resign only when it becomes impossible to continue in office without legitimising the usurpers".
On 15 January, 2007 while the Chief Justice remained suspended for unspecified offences, Madam Justice Shameem proceeded to chair the Judicial Services Commission (JSC). She justified her role on the basis of an opinion obtained from a silk. This despite the fact that she would have known there was no specific provision in the Constitution authorising a substitute to chair the JSC in place of the Chair, the Chief Justice.
Justice Shameem would also have been aware that apart from the President of the Fiji Law Society, the Chair of the Public Service Commission's appointment was legally suspect since he had been appointed by the army commander.
It was at that meeting that the JSC, as constituted, purported to appoint Mr Justice Anthony Gates as acting Chief Justice. The fact he had apparently been consulted in advance and that Justice Shameem had obtained an opinion justifying her chairing of the JSC indicates a measure of prior knowledge. It was Gates J. who made the following remarks in Jokapeci Koroi & Ors v Commissioner of Inland Revenue & the Attorney-General Lautoka High Court, Civil Action No 0179/2001L:
"Unruly persons are unlikely to seek validation for their usurpations from judges. Nor should the courts give their sanction when application is eventually made under the doctrine of effectiveness, for there is no such force behind it. In this regard, I respectfully differ from Kelsen. Judges should expect and anticipate that the usurpers will see them removed. So be it. Judges do not represent the law. The doctrine of effectiveness has no moral underpinning, and judges do no honourable business therefore in according lawfulness to defacto administrations."
Yet it troubled neither of them that the Chief Justice had been illegally suspended. The apparent minutes of the meeting have since been made public by the Interim Attorney-General.
Although the acting Chair is reported as saying the pressing purpose of the JSC meeting was appointments to the Bench, the sole business appears to have been the appointment of an Acting Chief Justice.
On 18 January, 2007 the President purported to issue a Presidential Instrument Of Notice Of Suspension Of Chief Justice Upon Establishment Of A Tribunal To Investigate Serious Allegations Of Misbehaviour made Against Him. Executive power had ostensibly been returned to the President on 4 January 2007. He proceeded to appoint the commander as interim Prime Minister on 5 January 2007 and the members of the interim Cabinet on 8 and 9 January 2007.
Chief Justice Fatiaki was also further suspended from office pursuant to section 138(4) of the Constitution. Charges have still to be laid and the Tribunal appointed over four months since that notice was published in the Fiji Republic Gazette.
The fact that the country's highest ranking judicial officer can so blatantly be sent home on leave for constitutionally dubious reasons is shocking. The response of the legal profession was regrettably, supine and insufficient. It was reduced to insipid mutterings about following the law.
I note in passing the arbitrary removal of senior public servants and members of statutory boards and directors of state corporations without any semblance of natural justice. Those chief executive officers in the public service who had remained unscathed since 5 December 2006 were removed by the Termination of Contracts of Employment (Public Service Senior Executive Service) Promulgation 2007, gazetted under Presidential fiat on 18 January, 2007. These measures have been allegedly undertaken as part of the military's commitment to cleaning up' the Government and its related entities.
The human rights abuses continue albeit at a reduced level.
Since 5 December, 2006 there have been two deaths in military custody. I respectfully cite their names, Nimilote Verebasaga and Sakiusa Rabaka, in order that they are more than footnotes in history.
Verebasaga, aged 41, left a wife and four children. Sakeasi was only 19 and is mourned by his mother and father. The depth of their pain cannot be imagined. And yet the military have stonewalled efforts by the police to investigate while pledging their full co-operation.
There have also been instances of blatant thuggery as policing and security roles have become blurred. Only four days ago a civilian Tevita Malasebe was reportedly assaulted and died while in police detention. This apart from the intimidation demonstrated against human rights activists and other dissidents. Who does one complain to or seek relief from when the Commission is compromised, and the Courts are yet to pronounce on the legality of the military takeover of 5 December, 2006?
Let me acknowledge that the level of abuse and degrading treatment is not on the scale as that inflicted elsewhere. But that is of little comfort or assurance to our citizens, men and women, who have been placed in harm's way.
One is reminded of John Donne's words, "And every death diminishes me for I am part of the main"
What is hard to forgive is the air of uncertainty, apprehension and fear that the increased profile of the military has created in our midst. The sense of helplessness in the face of the arbitrary power of the State, as deployed by the military, is a palpable reality.
At one level, the Courts continue to function unfettered as the Interim Attorney-General would have us believe. The business of trying civil and criminal cases does indeed continue. At the same time, the acting Chief Justice as de facto Chair of the JSC proceeds with appointments to both the magistracy and bench.
The reappointment of Mr Justice John Byrne has not been widely publicised. A further two appointments have also been allegedly made but apparently kept in pectoram. Despite the fact he is an appointee under the present regime, the acting Chief Justice has allocated to Justice Byrne, a case brought by the Chair of the Bose Levu Vakaturaga (the Council of Chiefs) challenging its recent suspension by the interim Government.
In like vein, one may well question the decision by acting Chief-Justice Gates to hear the case brought by ousted Prime Minister Qarase against the commander and the interim Government.
Following the takeover of 5 December 2006, Fiji's Vice-President was removed' from office by the military. He was simply told to vacate both the position and his residence. Both the head of State and the deputy are appointed by the Bose Levu Vakaturaga (BLV) or Great Council of Chiefs. It is an advisory body that advises the Government on matters concerning the welfare of indigenous Fijians.
Although the BLV met post 5 December, 2006 and passed resolutions recommending a gradual return to democratic rule, the commander and the military ignored them. Finding his position increasingly untenable, the Vice-President tendered his resignation to the BLV on 26 January, 2007. The BLV met on 11 April 2007 to appoint his successor. In such circumstances, the President makes a nomination and forwards it to the BLV for endorsement or otherwise. The process has hitherto been a formality.
On this occasion, the BLV rejected the nomination on the ground the nominee was part of the interim Government.
Angered by this decision, the latter suspended the BLV. While its reaction was understandable, the decision can only be characterised as a fit of pique. Whatever the motives or the reaction, the BLV was perfectly entitled to act as it did.
The FLS has not been as robust in its opposition as it was in 2000.
Then it and the military were largely allies, although the former did attempt to abrogate the Constitution and declined to reinstate the Chaudhry Coalition Government in accordance with the ruling in the Chandrika Prasad's case.
There is a serious rift in the legal profession which lends every appearance of not being independent.
Some senior lawyers tacitly support the military coup, unable to separate their dislike of the ousted government and its policies. The legal profession has been found wanting and compromised. One of the two persons who visited the Chief Justice in January this year and effectively caused him to be sent home was a lawyer, admitted to the Bar and still practicing.
The vice-president of the FLS was publicly admonished by a former president of the Society on national television for telling Australian television viewers that the legal profession felt that the judiciary was compromised.
This has had the effect of confusing the general population. However most lawyers are totally against the interim administration and are dismayed by the subtle but serious way in which the rule of law has been undermined.
Since 5 December 2006, the president of the FLS and other lawyers have had concerns about their personal safety. In the last fortnight, two lawyers involved in the case against the interim Government brought by the BLV have been taken to the army barracks for questioning. In the weeks after the coup, a leading legal practitioner was also treated similarly and reportedly assaulted in what was clear intimidation. The house of Janet Mason, a New Zealand lawyer who was advising the Great Council of Chiefs, was burgled recently. She and her husband were reportedly assaulted at the time of the home invasion.
The FLS president, somewhat naively allowed himself to be persuaded by initial reasoning that the 15 January 2007 session of the JSC was for purely administrative purposes.
The benefit of hindsight has proved otherwise. What must not be lost sight of is this: the opprobrium in which the previous Government was held by some because of its affirmative action policies and ambivalence about rule of law' matters, in no way justified or excused the events of 5 December, 2006.
It is a sad indictment on the legal profession in Fiji that it has been less than united in its position on the coup of 5 December, 2006. The commander and the military were emboldened in their actions by the succour they received from some of our number, as well as well-intentioned members of civil society who welcomed the social objectives espoused by the military.
Parallels with totalitarian regimes were erroneously and extravagantly drawn to tarnish the ousted Government and justify the military intervention.
The result was a bemused general population, perplexed over the legal arguments offered for and against the coup.
The world must know that things in Fiji are not normal, despite what the spin doctors and their apologists will tell you.
Since the Fiji coup of 5 December 2006, the ousted Prime Minister Laisenia Qarase has been effectively banished to his remote home island of Vanuabalavu in eastern Fiji.
Despite having filed a legal challenge against his ouster and the legality of the current military administration, he has not been permitted to return to Fiji's capital Suva. The judge presiding over the constitutional challenge, the acting Chief Justice Gates has declined to make any order that the military not impede any attempt by Qarase to visit Suva. It is hard to explain why an administration which has the backing of the military would be apprehensive about allowing an unarmed individual person back onto the mainland.
Some judges lend the appearance of not being independent and impartial. When aspersions are cast on the independence of the judiciary, it is cause for alarm.
Freedom of expression is severely curtailed. The media practices self censorship and many people are afraid to speak openly against the interim administration or criticise it. Those who have done so have been summarily taken to the barracks. All have returned sullen and silent.
Two weeks ago the acting national director of the SDL, the political party headed by the deposed Prime Minister was taken to the barracks for questioning. He was seen looking bruised, on television the next night. As a result of the covert suppression of dissent, overnight has emerged the appearance of "Blogs" , "Bloggers" and "Blogsites". This has allowed a free flow of ideas and kept alive for those who have access, a large measure of freedom of conscience and expression. The military however succeeded in shutting off completely one blog site that vociferously criticised it and its backers.
Government-sponsored students at the local university have been warned that if they are caught blogging they would have their scholarships removed. The vice-president of the FLS was prevented from leaving Fiji for the LawAsia conference last Sunday. She was told she was on a travel ban, this despite having been told by the head of immigration a few days earlier that she had the freedom to leave Fiji.
She returned home and negotiated with the authorities. She was allowed to leave last Monday.
And yet the world and Fiji were advised that the state of emergency that the country had been under for the last 6 months had ended on 1st June, last Friday.
Miss Draunidalo has been particularly vocal against the coup and events in Fiji since December. It is not difficult to make the connection as to why she was stopped at the airport. At a special general meeting of the profession in February this year, I made a short unremarkable statement along the lines that all coups, wherever they happened and whatever the circumstance were wrong and illegal. A few days later, however short lived, I was placed on a travel ban.
The country's 85-year-old President is being asked to promulgate new policies through new "Promulgations" despite the fact that under section 45 of the Constitution, law making powers are vested in a bicameral legislature of which he is the titular head. Earlier this year the President "promulgated" a new law establishing a so called Independent Commission Against Corruption.
The deputy commission of the ICAC is the deputy commander of the Fiji army. The legality of that law is now under scrutiny before the courts. Even more worrying are reports that ICAC is apparently investigating homicides. Such crimes, in a normal democratic state, are ordinarily within the province of an independent police force.
Fiji's rulers do not have the mandate of the people. They do not have any proper legal basis or legitimacy. While it professes that the Constitution of Fiji is intact and has not been abrogated all the signs point to grave departures from constitutional procedures that are corroding the lawful and proper governance of Fiji.
To paraphrase Dame Sian Elias, while Fiji is ruled by rules, it is not ruled by law.
Tyranny, arbitrariness and spite have perverted the rule of law.
In future, the only effective protection for the rule of law, and indeed democracy, is a basic awareness by ordinary people of what the principle means and how critical it is to their rights and their day-to-day existence.
So much so, that it may well demand the ultimate sacrifice, for history demonstrates that an ideal is far more hallowed when its raison d' tre has been struggled for and defended.
The legal profession in Fiji has little to celebrate. If it is to consider itself worthy, it must redeem itself and reject the easier path of ambivalence, equivocation, silence and cowardice.
I again harken to the advice of Dame Sian: "Law is a thinking profession."
I extend an invitation to every "thinking lawyer" of Fiji to join this glorious march towards freedom and democracy. Posterity will judge Fiji's lawyers and whether in the country's hour of need they stood up for the rule of law.
Finally some concluding remarks. In the aftermath of Fiji's coup, many of our friends have been perplexed, and wondered how and what if any assistance they can render, not just the profession but the country as a whole. Such well intentioned sentiments are appreciated.
It reminds us that in the struggle to uphold the rule of law, we are not alone. A word of advice. Fiji is a complex country. It has had four coups in 20 years. It has its fair share of failed politicians, troublemakers and opportunists. It is easy to be seduced by the charm and smiling faces, not to mention the beaches.
But the unsophisticated and untrained outsider who does not understand the political architecture of Fiji and the machinations of its politicians runs a real risk of stepping into the lion's den. I would respectfully suggest that this is a lesson that one ignores at one's peril.

No comments: