Tuesday, November 27, 2012

Aussie Magistrate Booted Out of Fiji Judiciary for Questioning its Independence

Coup 4.5 has posted a story of an Australian magistrate booted out of Fiji for daring to challenge the independence of its judiciary. Greg Bullard, who was a former legal practitioner in the Supreme Court of New South Wales, has been dismissed after just a month with the Fiji judiciary. He is the second overseas hired judicial officer to be sacked by the Fiji judiciary. According to Coup 4.5:

"In September, the former judge, William Marshall, confirmed what blogs have been saying for along time: that Fiji's judiciary are not working independently but are following the biased directives of regime boffins the illegal attorney general, Aiyaz Sayed Khaiyum, and illegal Chief Justice, Anthony Gates."

It is therefore not surprising that Greg Bullard made similar charges in his letter below. No one need be surprised at this latest revelation. It just confirms again what we all know about the judiciary in Fiji - that it lacks independence and it operates directly under the direction of the illegal Attorney General and Chief Justice. 

Like Justice Marshall, Bullard had also alerted the illegal PM about the compromised nature of the judiciary, yet nothing was done. Again, not surprising there given Bainimarama's total reliance on Khaiyum and Gates on matters legal. As Bullard pointed out in his letter below, decisions of the various units of the judiciary will be open to legal review in the future when properly constituted government and judiciary returns to Fiji. Pray that day comes sooner than later for justice sake in Fiji.

Edited version:

To Whom It May Concern,

The following is a summary of my legal observations of the justice/legal regulatory oversight in Fiji. These observations are derived from my own legal research and not by virtue of my position as Fiji’s shortest serving ad-hoc resident magistrate/ Head of the Legal Practitioners Unit (October 2012).

Judicial Oversight:
The judiciary of Fiji is regulated by the Administration of Justice Decree 2009. Section 16 states:

Judicial Service Commission
16.-(1) This section establishes a Judicial Service Commission consisting of:
(a) The Chief Justice, who is to be its chairperson;
(b) The President of the Court of Appeal;
(c) A Legal Practitioner with not less than 15 years post-admission practice, to be appointed by the President on the advice of the Attorney-General;
(d) A person, not being a legal practitioner, appointed by the President on the advice of the Attorney-General.
(2) The quorum of the Judicial Service Commission shall consist of the Chairperson and one other member.
(3) In addition to the functions conferred on it elsewhere in this Decree, the Judicial Service Commission may investigate complaints about judges and judicial officers of courts subordinate to the High Court and may take disciplinary action against them.
(4) For the purposes of taking disciplinary action under subsection (3) above, the Judicial Service Commission may make such Rules as it deems fit for the performance its functions.
(5) The members of the Judicial Service Commission are entitled to such allowances as may be fixed by law.
(6) The Secretary of the Judicial Service Commission shall be the Chief Registrar, or any other person performing the functions of that Office.

Firstly, note section (s) 16 subsection (ss)(3), above. The effect of this section is that any judge or judicial officer , subordinate to a high court judge (who is subject of a complaint) can be dismissed by the Judicial Services Commission, a quorum of which is the Chief Justice and one other member.

This ensures that the judiciary of Fiji can never be independent whist this decree exists in its current form. All judicial officers are beholden to the Chief Justice. In New South Wales, by way of comparison, all judicial officers are subject to parliamentary oversight, not judicial oversight. By way of comparison, the Judicial Services Commission of New South Wales has the power to investigate complaints and it is Parliament alone that has the power to dismiss (after due process and a “show cause” opportunity) not the Chief Justice with a presidential “rubber stamp”, as is the case in Fiji.

This legally unsound situation is a contributing factor to the high volume of complaints that are received by the Legal Practitioners Unit. In my short time in office, prior to my dismissal (for reasons unknown) I was unable to ascertain the percentage of complaints that are attributable to the lack of legal profession/judicial independence.
How can judicial officers in Fiji exercise their functions without “fear or favour”? They simply cannot.

Judicial appointment
All judicial appointments are made under the recommendation of the Judicial Services Commission i.e. the Chief Justice and one other. The Chief Justice has the power to hire and fire at will. This accounts for my own termination. This is a patent and blatant abuse of power.

Regulation of the Legal Profession in Fiji/ The Legal Practitioners Unit
The legal profession of Fiji is regulated under the Legal Practitioners Decree 2009. The power sits with the Chief Registrar, who in turn acts under the direction of the Chief Justice. This means that the legal profession and the judiciary are under the control (directly or indirectly) of the Chief Justice.

The Head of the Legal Practitioners Unit cannot be independent as this position is under the direction of the Chief Registrar. As Head of the LPU, I was unable to forward any correspondence under my own hand. All correspondence that proceeds from the LPU, must first be delivered to the Chief Registrar for vetting and approval. This represents a complete lack of independence of legal profession oversight. All legal recommendations I made in the pursuance of transparency and integrity, were rejected by the (acting) Chief Registrar.

When I raised my concerns with the Chief Justice, I was terminated. Upon my attempted  return to work, prior to being notified of my termination, I was unlawfully arrested and detained at Nadi Airport and escorted onto the first plane back to Sydney. This was done under Orders of the High Court. I was not given any reason for my termination. I am currently banned from returning to Fiji, under the High Court Orders.

Comparison to NSW Oversight
(Please note, I was recruited by the Chief Justice on the basis of my experience with the NSW system, including my appointment as a NSW barrister, on the panel of Reviewers for the OLSC, NSW, and my previous experience as a solicitor/investigator with the Law Society of NSW).

In NSW the Legal Profession is oversighted by the Office of the Legal Services Commission (OLSC). This is an independent body with powers to investigate and institute disciplinary proceedings. The OLSC NSW, is answerable to Parliament alone (unlike Fiji, where the legal profession is regulated by the Chief Registrar who is answerable to the Chief Justice).

In NSW, disciplinary proceedings against the legal profession are prosecuted by the OLSC and taken before a member/s of the Administrative Decisions Tribunal. The members of the ADT are independent and not judicial officers per se. They are at arms length from the judiciary and the legal profession.

In Fiji, the Chief Registrar is the prosecutor and the Independent Legal Services Commission (ILSC) is the Fijian counterpart of the ADT. Sections 84-98 of the Legal Practitioners Decree 2009, establish the ILSC. Section 85 states:

Appointment of Commissioner
85.—(1) The Commissioner shall be appointed by the President, on the advice of the Attorney-General.
(2) The Commissioner must be a person who is qualified to be a judge under section 15 of the Administration of Justice Decree 2009.
(3) In advising the President as to the person to be appointed as Commissioner pursuant to subsection (1), the Attorney-General must be satisfied that the person—
(a) is familiar with the nature of the legal system and legal practice in Fiji; and
(b) possesses appropriate qualities of independence, integrity and fairness.
(4) The President may appoint a person who is not a citizen of Fiji as the Commissioner.
(5) The Commissioner may be appointed either on a part-time or full-time basis.

Please note section 85(3)(b) above. It is a prerequisite that the Commissioner be independent. In Fiji the Commissioner is also a high Court judge, who is under the direction of the Chief Justice. He cannot be seen to be independent. Remember, justice should not only be done, it should be seen to be done. This very fact is an offence to the basic principles of justice, transparency, accountability and integrity.

All of the ILSC’s decisions will be appealable, at a future time, on the basis that the Commissioner is not independent. There may be some very large damages claims made, if and when a new government is formed.  Any such litigation cannot be “decreed” away. It would be ruled to be ultra vires (beyond power), by application of immovable English common-law precedent.

The judiciary, the legal profession and the ILSC are all under the direct or indirect control of the Chief Justice. This is a dangerous precedent. Justice cannot be done in Fiji until this is remedied. How it came to be like this can only be answered by the Attorney General and the Chief Justice himself.

I will not provide details of the despicable treatment I received at the hands of the (acting) Chief Registrar, Mohammed Saneem. My story will never be told. I gave an undertaking to that effect. I will honour that undertaking.

I cannot say that the Honourable Prime Minister is a party to this gross injustice or if he has been deceived by those in whom he has placed his trust i.e. the Attorney General and the Chief Justice. I have recently made the Honourable Prime Minister aware of these issues. Time will tell his true position by his action or inaction.

Mr Greg Bullard
Former Head of the Legal Practitioners Unit
(8/10/12 to 9/11/12)
Fiji’s shortest ever serving Resident Magistrate

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