Monday, March 18, 2013

Fiji Courts Now A Potent Tool for Silencing Dissent

 "A prominent Australian legal figure says the dismissal of an appeal against Fiji's political parties decree was wrong in law....the courts in Fiji should not allow their role to be undermined by the coup-installed military government."

If the decision of the Fiji High Court in ruling against the appeal by the Fiji Labour Party on its action against the Political Parties Decree, then expect the worse for any similar future action that dare question the authoritarian and draconian rules surrounding the operation of political parties in the lead up to the proposed 2014 Elections. This despite the commentary below by international jurists questioning the legality of the ruling itself. Yet as we all know only too well, the Bainimarama dictatorship has enveloped its rule with all the tortuous legal rules and stringent tests against any attempt to take court action against its rule. As well, we all know how the courts have become the tool for the regime to silence opposition and dissent against those opposed to its illegal rule. 

In turn, this action has further cement its choke hold on the government of the country such that the only sure way to salvage Fiji and its people is by sheer force, the same way the illegal regime secured its mandate on 5th December 2006.

Fiji political parties appeal dismissal wrong, says ICJ

ABC News

A prominent Australian legal figure says the dismissal of an appeal against Fiji's political parties decree was wrong in law.

Fiji political parties appeal dismissal wrong, says ICJ. The appeal by Fiji's political parties against the decree was thrown out by Justice Anjala Wati because such decrees can't be challenged in the courts. The Australian branch of the International Commission of Jurists says the courts in Fiji should not allow their role to be undermined by the coup-installed military government.

Presenter: Bruce Hill
Speakers: John Dowd, president of the International Commission of Jurists.

DOWD: The regime which is non-democratic doesn't displace the constitution of Fiji. This law even if you accept that the regime is entitled to pass laws, cannot remove the judiciary's power to do with matters independently. They can't pass a decree, whatever that may mean in legal terms, saying you can't challenge these proceedings, and then deprive the courts of its jurisdiction. The courts are independent, they are not part of the established administration, they're not part of the executive, they cannot have their jurisdiction taken away simply by saying this cannot be challenged.

HILL: Well, that's in theory, in practice of course that's not how Judge Anjala Wati saw it when she threw this case out. And really given the situation that you've got a coup-installed military government there that has the Administration of Justice Decree that says courts cannot interfere in any of their decrees, what really could she have done otherwise?

DOWD: The fact that you have a decree saying that the court has no jurisdiction doesn't deprive the court of jurisdiction. Courts under this administration are supposed to be independent, therefore you can't remove that and the judge should have found that the decree was invalid, and that she could therefore deal with the matter. This sort of administration can't get away with ousting jurisdiction, jurisdiction remains independent and an independent judge in my view could not have come to this decision.

HILL: So essentially you're saying that the judiciary in Fiji is in some sense not really independent?

DOWD: I can't comment generally about other cases than this, but if a decree is passed with whatever legality that may have from an administration which has overthrown the Constitution, whatever validity it may have they cannot remove the independence of the judiciary. And this decision is wrong.

HILL: Well you're saying they can't but of course they have?

DOWD: Well no they have purported to, using that lovely lawyer's word, they've purported to exercise a power they don't have, therefore a judge who should be independent and is supposedly under this administration, should find the decree invalid. It's a bootstrap job, you can't hold yourself up by your bootstraps and then say you can't do it. The administration can't pass such laws and oust the jurisdiction. The jurisdiction remains.

HILL: The interim government in Fiji essentially says that what they're doing is not really essentially any different from what happens in normal countries, and they don't know why everyone's getting upset with them?

DOWD: It's absolute nonsense, normal countries don't do this. In countries right through the world we have the judiciary independent of the government. The government can't pass a law which says the judiciary may not review this. It doesn't happen in almost all of nations in the world, it can't happen in Fiji. So to say that it happens in other countries is just not correct.

HILL: Assuming that Fiji does return to democratic rule eventually and the Constitution is restored to its rightful place, might some of these court decisions that were taken under this kind of situation then perhaps be revisited?

DOWD: Well, they won't need to be because once Fiji becomes democratic again and in fact starts to pass laws under a Constitution, these laws will have no validity, these decisions like this will have no validity at all and will be ignored.

HILL: What would you say to judges in Fiji at the moment who would say look I have to do this under the situation we're in, if I don't do this then we're not going to have any administration of justice at all?

DOWD: Well, once the executive takes over the judicial role there's no administration of justice at all. So whatever the judges may say the rule of law is the rule of law, judges have to be independent, the executive can't control the judiciary, and that's the end of it.

HILL: So what should judges in Fiji do?

DOWD: Well, they need to look very closely at how much their jobs as judges are fully independent and if they're not they have to look at whether they should be judges at all.

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Fiji Village News

Proposed FLP case terminated

High Court Judge, Justice Anjala Wati has dismissed the proposed Fiji Labour Party’s case against the Registration of Political Parties Decree.

The case was filed against President Ratu Epeli Nailatikau, Attorney General Aiyaz Sayed-Khaiyum and the Registrar Political Parties.

Justice Wati said that under the Administration of Justice Decree, the court does not have the jurisdiction to determine the substantive and interim cause in this case. The matter has been referred to the Chief Registrar to raise a certificate of termination of the challenge.

The Administration of Justice Decree states that no court shall have the jurisdiction to accept, hear, determine, or in any other way entertain, any challenges whatsover including any application for judicial review by any person to the validity or legality of any decrees made by the President from April 10th 2009 and any decrees as made by the President.

The proposed FLP’s lawyer, Anand Singh had also sought an injunction against the Registrar of Political Parties from proceeding with the deregistration of the proposed FLP.

However Acting Solicitor General, Sharvada Sharma said any injunctive orders are prohibited against the state. He also said that there is no evidence of any deregistration. Sharma said the proposed FLP has applied for registration and now the due process of taking public objections on the registration will be done. He said there is no evidence that the proposed FLP would be deregistered at any point in time. The Acting Solicitor General said it is only after the due process is carried out, will it be evident whether or not the political party will be deregistered. Sharma stressed that the court does not have any jurisdiction under the Administration of Justice Decree to entertain any application challenging the validity of the decree.

Proposed FLP’s lawyer, Anand Singh argued that it is not correct that the courts cannot grant injunctions against the state.

While dismissing the application, Justice Wati said if this is allowed then different parties could come to court and be allowed to challenge different provisions of the decree, and if all challenges were allowed, the end result could lead to the challenge of the entire decree.

Sharma asked for $2,000 in costs however Justice Wati ordered the proposed FLP to pay $1,500 to the Attorney General’s Office in costs.

Story by: Vijay Narayan

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Legla eagle said...

what a pathetic attempt by the cj to justify wati's judgment.
he does not stand up for his judges and magistrates against the ag and pm. he only worries about himself and the other kaivalagi sexually challenged in the judiciary.
the judgment was expected because wati would not be still there if she decided against the ag..shed forgotten that about a year ago she delivered a judgment in which she said one could challenge a decree...the reason i suspect was because it was rajendra chaudhary that was arguing that the court had no jurisdiction to decide that case...short term memory loss?? i dont think so. no memory loss here. just deliberate judicial and intellectual dishonesty.

The Next Step Guys said...

the next step is for FLP to take its case to the Human Rights Court in de Hague...come on Rajen and Anand, have you got the balls to do it?