JUDICIAL INDEPENDENCE AND FREEDOM OF SPEECH UNDER THREAT IN FIJI

UIA Judiciary Commission president Judge Judith Gibson sets out the background to the shock dismissal of the judiciary in Fiji on April 9, 2009.

The courts powers are emasculated and the judges are made creatures of the military Government, appointed at its behest, removable at its whim Justice Randall Powell SC, former judge of the Fiji Court of Appeal ( the Australian newspaper,24 April 2009)

Introduction UIA members will have read, with alarm and concern, media reports of the sacking of the entire judiciary in Fiji on 9 April 2009. The crisis does not merely affect lawyers and justice. The rule of law has been abrogated and Fiji is sliding into chaos. How can such events happen in a civilised country like Fiji? This brief report is designed to make background facts and source documents available to UIA members and to ensure that these events, and their repercussions for the independence of the judiciary and the legal profession are fully and frankly discussed by the UIA. The sacking of the judiciary on 9 April 2009 occurred only a few hours after Fijis Court of Appeal handed down a judgment declaring the 2006 coup government illegal and calling for early elections. Fijis President, Ratu Josefa Iloilo, responded by sacking the judiciary, assumed executive power and reappointed the man the Court of Appeal had held was running the country illegally. The consequences for independence of the legal profession and of the judiciary of the regimes actions are matters for concern for lawyers and judges everywhere. The primary sources for this overview are: Prasad v Republic of Fiji [2000] FJHC 121 < http://www.paclii.org/fj/cases/FJHC/2000/121.html> Qarase v Bainimarama [2008] FJHC 241 < http://www.paclii.org/fj/cases/FJHC/2008/241.html> Qarase v Bainimarama [2009] FJCA <http://www.fijitimes.com/extras/Qarase-vs-Bainimarama-Court-of-appealjudgement.pdf> In re Application by the Attorney General of Fiji [2009] FJHC 8 <http://www.paclii.org/fj/cases/FJHC/2009/8.html> Dire Straits: A Report on the rule of law in Fiji IBAHRI, March 2009 <http://www.fijilive.com/archive/showpdf.php?pdf=2009/03/322_03_2009_M arch_Dire_Straits-A_report_on_the_rule_of_law_in_Fiji.pdf> Judges in Fiji face 'interim' problem The Australian, May 2008 <http://www.theaustralian.news.com.au/story/0,25197,2363115730537,00.html>

How did this peaceful Pacific island go into legal meltdown? Here is a quick summary of the background facts. The four coups Fiji had a comparatively uneventful history after it obtained its independence in 1970 following 96 years of British rule. During that time the British government had brought many workers from the Indian subcontinent to work on plantations and many stayed on in a country which offered a good education system and a comfortable lifestyle. Indians and Fijians lived together in harmony. Then, in 1987, the first Indo-Fijian majority government (led by Dr Timoci Bavadra) was elected. In May 1987 the first of two coups occurred; the second (in September 1987) successfully overthrew Bavadras elected government and revoked the 1970 Constitution. About 12,000 Indians left Fiji during 1987. Following a short period of military rule Colonel Rabuka stepped down and appointed the previous GovernorGeneral as president. A new Constitution was enacted in 1990 and in 1993 Colonel Rabuka was elected Prime Minister. The Constitution was amended in 1997 and in the 1999 elections the Indo-Fijian Labor party was again elected, this time led by Mahendra Chaudhry. This was immediately followed by another coup after the indigenous Fijian nationalist George Speight occupied Parliament and held the Prime Minister, his cabinet and other members of his coalition government hostage for 56 days. Commodore Bainimarama abrogated the 1997 Constitution and appointed himself as head of an interim military government and the Great Council of Chiefs appointed Ratu Josefa Iloilo as President. Following this, Speight was arrested and convicted of treason. In November 2000 Gates J (in the High Court of Fiji) in Prasad v Republic of Fiji [2000] FJHC 121 held that the 1997 Constitution had not been validly abrogated, a decision upheld (on other grounds) on appeal. Elections were held and Qarases SDL Party won both these elections and the subsequent elections in May 2006. Qarase was sworn in as Prime Minister for a second term, a result not accepted by the military. On 5 December 2006 the fourth coup occurred and Commodore Bainimarama seized power and restored Iloilo to the Presidency. Iloilo immediately gave a grant of immunity to everyone involved in the coup. This time, however, the coup leaders went further. In January 2007 Chief Justice Fatiaki was told to go on leave or be terminated and when he attempted to return to work the police came to his chambers. Nine months later a tribunal was set up to investigate serious allegations of misbehaviour (these claims were later dropped, and he was paid $275,000 compensation after he agreed to resign). Other judges were also the target of attacks. Appeal Court President Justice Wards home was burnt down and Justice Winters car sabotaged. Justice Gates, the next most senior judge willing to take the role, was appointed as Chief Justice. Justice Henry resigned, reportedly in protest. Six judges in the Court of Appeal resigned at the end of 2007; the IBA was advised (Report, [3.40]) they felt unable to carry out their duties. Justice French, who served on the Supreme Court of Fiji from 2003 and is the current Chief Justice of the High Court of Australia, said that the implicit bargain of accepting

appointment comes at too high a price (Judges in Fiji face interim problem, The Australian, 2 May 2008 <http://www.theaustralian.news.com.au>). Other judges, including Justice Winter and Justice Mason (President of the NSW Court of Appeal) did not seek to renew their warrants. The 2008 Annual Human Rights Report issued by the State Department of the United States asserted the Fiji judiciary was not independent. The Fijian government prohibited visits by the IBAHRI delegation and a United Nations rapporteur. Government spokesmen have condemned the US, IBA and UN reports as rubbish. The judiciary dispute was not limited to the High Court. Chief Magistrate Naomi Matanitobua was also sent on leave after the December 2006 coup, with Prime Minister Bainimarama complaining of questionable appointments to the magistracy and complaints of corruption and incompetence. This led to a number of new judicial appointments being made by the new regime. Tom Bathurst QC, president of the Australian Bar Association, recently warned Australian barristers not to accept appointments, citing the International Bar Association IBAHRI reports scathing findings (The Australian, March 19, 2009). Three Australians who did accept appointment are the three highly respected senior counsel whose appeal judgment led to the sacking of the judiciary on 9 April. Two of them left Fiji immediately. What are the problems currently faced by lawyers and judges in Fiji? Here is a quick overview: The independence of the legal profession As the following checklist from the IBAHRI report shows, the independence of the legal profession in Fiji is under serious threat: Lawyers have been struck off the roll in the years following the 2006 coup for political reasons rather than misconduct; Expatriate lawyers have been threatened with cancellation of work permits if they criticise the regime; The Fiji Law Society is polarised because of factionalism as some members opposed the previous government while others oppose the government in place after the coup. There is a significant backlog in hearing disciplinary cases. The government has announced the formation of a Legal Services Commission to hear complaints against lawyers which has caused consternation in the legal community due to fears of lack of independence; Government legal work has been taken away from law firms considered to be opposed to the regime (IBAHRI [4.14]); Contempt proceedings have been used to silence lawyers, including the Vice President of the Fiji Law Society; Lawyers have reported being taken from their homes late at night and detained in military barracks where they have been subjected to physical violence and intimidation and warned that if they spoke out against the government they and their families would be subject to detention and torture. Other acts of 3

retribution include travel bans to prevent lawyers perceived as dissidents entering or leaving Fiji; The IBA has concluded that the leadership of the Human Rights Commission has been taken over by a military appointee who is sympathetic to the government and no longer fulfils the HRC mandate.

This situation has worsened since April 9. Lawyers suspected of being opposed to the coup have been arrested, detained and beaten, including the President of the Fiji Law Society, Mr Naidu. A new Judicial Services Commission has been set up to hear disciplinary actions against the profession. All JSC members are to be appointed by Iloilo and the Fiji Law Society president is no longer a member. The Fiji Law Society is powerless to act. Mr Naidu reports that the regime will not give a permit for the Law Society to hold a meeting, as it fears their discussion of the sacking of the judiciary and the new JSC will be too political (Radio New Zealand, 24 April 2009). The independence of the judiciary Here is a brief summary of the worsening situation since the December 2006 coup: A month after the coup, Chief Justice Fatiaki was sacked, removed from his chambers by police and then the victim of apparently trumped-up charges that were dropped when he agreed to resign and accept compensation; The gradual failure of the judiciary to act independently has been extensively investigated by the IBAHRI report. The IBAHRI noted, for example, failure of judges to recuse themselves from cases bearing on the legitimacy of their own appointment or the constitution of the bench (The report sets out a list of such judgments at 3.52 3.62) ; The IBA report also notes court acquiescence in judge-shopping for judges sympathetic to the regime in power. For example, the Commissioner of Police wrote complaining that Justices Winter and Jitoko were anti-regime and asked that no cases involving members of the military be listed before them; the Permanent Secretary wrote back promising Chief Justice Gates would take the necessary steps to address these concerns (IBAHRI report [3.65]). In particular, one judge often granted stays of judgments ex parte and without legal basis when those judgments went against the regime: IBAHRI report [3.69] [3.76] and the court registry bypassed parties lawyers to contact them personally (IBAHRI report [3.87] [3.88]); Actions brought by those out of favour with the regime are lost on technicalities which include misstatements of the law. An example that I note with concern is Chand v Fiji Times Ltd [2009] FJCA 1 where the Court of Appeal not only upheld but applauded the trial judges finding that defamatory imputations were true (notwithstanding clear evidence of their falsity) made on the erroneous technical basis that a plaintiff must file a Reply when a defence of truth is pleaded; In a section headed Judicial perjury the IBAHRI report (at [3.84] [3.86] notes a finding by the Court of Appeal in Takiveikata v State [2007] FJCA 45 that Justice Gates lied under oath. If true, that is serious misconduct by a chief judge; 4

There have been colourful attacks on journalists in courts and in judgments. Justice Hickie in In re the application by the Attorney-General of Fiji(supra) at [136] [140] complained at length about ratbag ravings by the press and warned overseas lawyers and journalists that if their comments can be downloaded in Fiji they can be prosecuted there. After an article in the Fiji Sun on 12 February 2008 criticised judicial appointments the journalist and a newspaper representative were ordered to attend the Court of Appeal where, although no charges had been laid, they were spoken to by the judges sitting in the court in circumstances which the IBA report called a chilling use of judicial powers (IBAHRI report [3.70]). Finally, the astonishing sacking of the whole of the judiciary on April 9, 2009, after the Court of Appeal held the Bainimarama coup was illegal.

However, no civilised country can exist without some kind of judiciary. A week after the coup came the announcement that eight new magistrates and a chief magistrate would be sworn in. The oath they swore to uphold justice was denounced as worthless by the three judges whose judgment that the Bainimarama regime was illegal had precipitated the sackings, with Justice Ian Lloyd QC pointing out that the decree the judges had to agree to prevented them from hearing challenges to presidential decrees (The Australian, 24 April, 2009). Now comes the news that the newly-appointed Chief Registrar, Major Ana Rokomokoti, has begun destroying documents, including court documents, relating to the coup: The West Australian, 21 April, 2009. Fiji Law Society President Mr Dorsami Naidu (who was detained and questioned for opposing the regime) said that he understood that all court files and papers for actions pending against the regime had been destroyed. International response to these events Australia and other Commonwealth nations immediately issued statements deploring these events; Australias Prime Minister, Mr Kevin Rudd, was one of the first. UN Secretary-General Ban Ki-Moon and UN Security Council President Claude Heller have condemned these developments. Representatives from a number of lawyer associations from countries in the Pacific region have repeated these warnings and also advised their member not to accept judicial office in Fiji. The Commonwealth Law Association and the Law Council of Australia have issued press releases deploring the situation. Lawasia has advised member countries to advise their members of the undesirability of accepting employment from the regime. Following a New Zealand lawyer, Christopher Pryde, accepting the position of Fiji Solicitor-General, New Zealand Law Society president John Marshall QC warned members not to do so, and said that these judges and magistrates hold office unlawfully (The Australian 24 April 2009). Mr Pryde said that Fiji needed good lawyers now more than ever, but former Fiji Law Society president Graham Leung disagreed, and urged lawyers not to accept posts with the regime (Radio New Zealand, 26 April, 2009).

Regrettably, these warnings are not being listened to in Fiji. In fact they cannot be listened to, because the regime has imposed censorship on the press, expelled foreign journalists and escalated a series of attacks on freedom of the press which began after the 2006 coup to an unprecedented level. Freedom of the press The bringing of prosecutions for scandalising the court and contempt for publications has had a chilling effect on freedom of speech in Fiji. The penalties imposed have been substantial. Most recently, in In re the application by the Attorney-General of Fiji the newspaper was fined $US53,000, the editor sentenced to three months imprisonment (suspended for twelve months) and the newspapers CEO, without proceeding to conviction, sentenced to be of good behaviour for three months. The publication in question was a letter to the editor of the Disgusted, Tunbridge Wells variety complaining that the courts decision in Qarase v Bainimarama was biased, corrupt and self-preserving and asserting that the judiciary had been tainted since the forcible removal of Justice Fatiaki and his replacement by Justice Gates. A similar action is pending against the Fiji Post. These penalties are outside the range, especially since the offenders pleaded guilty at the first opportunity and in the case of the two individuals had no prior convictions. A number of journalists have been deported since the 2006 coup. First to go (in early 2008) was Fiji Sun publisher Russell Hunter, following a series of controversial articles about the Fijian political scene. In May 2008 Evan Hannah, chief executive officer of the Fiji Times, was deported. The third to go, Rex Gardener, was Hannahs replacement as well as one of the defendants in re Application by the AttorneyGeneral of Fiji [2009] FJHC 8. Despite being discharged by the sentencing judge on the basis that he had broken no law, he was declared a prohibited immigrant on Monday 26 January 2009 and deported. Also of concern is the escalating violence against journalists, including Molotov cocktails thrown into their homes (Molotov cocktails hurled at opponents of Fijis military rule, Sydney Morning Herald, 19 March 2009). Since the events of April 9, reports of journalists being intimidated, assaulted, threatened with deportation or being deported and attacks on newspaper offices are almost a daily occurrence. All newspaper articles must be submitted to the regime for approval and approval is often withheld; the Fiji Times is being published with many blank spaces where articles and cartoons are being censored. Although censoring the press in their own country, representatives of the Fiji regime have ridiculed and insulted those who have spoken out against what has happened in Fiji. What next? The doctrine of separation of powers, the rule of law, the independence of the judiciary and the legal profession and freedom of speech are all under attack. Public confidence in judiciary and in the rule of law have been diminished, not only in Fiji, but also in other countries in the region. Amnesty Internationals Pacific analyst,

Apolosi Bose, has pointed out that a rise in crime and a law and order crisis are increasingly likely. What is happening in Fiji is contrary to the basic freedoms and principles for which the UIA stands. I agree with the IBAHRI reports conclusions that there must be elections at the earliest opportunity, the judiciary must be reinstated immediately and permitted to go about their duties without fear of interference, and attempts to change the structure of the legal and justice system by the regime must be deferred until the people have spoken at the ballot box. The events in Fiji call for a strong response from lawyers, judges, academics and government officials everywhere. I call on all members of the UIA to promote active debate on the best ways to resolve this ongoing crisis. Judge Judith Gibson Judiciary Commission president
Judge Gibson was appointed a judge in the NSW District Court in 2001. She is a member of the International Law Section of the Law Council of Australia, a council member of the Research Institute for Asia and the Pacific (University of Sydney) and a board member of the Fondation pour le droit continental (France). In 2008 she was appointed the president of the Judiciary Commission of the UIA.