Legal team’s report points to worrying signs in judiciary

LAWASIA, the professional association of representatives of bar councils, law associations, individual lawyers, law firms and corporations principally from the Asia Pacific region, has released the report of its Observer Mission to Fiji from March 25-28.

Intelligentsiya received a copy of the LAWASIA report published on Thursday, April 12. Dowload a copy of the LAWASIA report here.

The report compiled by a four-member team led by Mah Weng Kwai, president of LAWASIA and former president of the Malaysian Bar, looks at the split within the judiciary that started in 2000 during George Speight’s rebellion and further widened after the military coup last December with the removal of Chief Justice Daniel Fatiaki.

One of the conclusions of the 20-page report is that “the rule of law in Fiji may be compromised by the ongoing uncertainty as to the status and future of suspended Chief Justice Fatiaki and by the ongoing public perception, right or wrong, that the judiciary is politicised and divided.”

Other points the report makes, include:

• The ongoing uncertainty regarding the constitutionality of the Judicial Service Commission has another unfortunate consequence. The LAWASIA Observer Mission was told that up to nine overseas Court of Appeal/Supreme Court judges may not seek reappointment on the grounds that they would object to the current constitution of the Judicial Service Commission or else are uncomfortable with the uncertainty of the lawfulness of its decisions. This may lead to attrition which in turn might ultimately resolve the present factionalism, but this would be an unfortunate scenario. It would fail to confront and address many of the issues which give rise to scepticism amongst members of the legal profession and the public at large. If forced attrition is the mechanism adopted to produce harmony within the judiciary, deep divisions will remain amongst the community and the national and international legal profession, and any gains may prove to be short-lived.
• Whilst doubts linger, the Acting Chief Justice remains in an unenviable position and any actions performed by him in his capacity as Acting Chief Justice will remain under the shadow of possible future challenge. This, again, points to the importance of resolving the status of Chief Justice Fatiaki as soon as possible.
• The LAWASIA Observer Mission believes that the Tribunal's (proposed to inquire into the allegations of corruption in the judiciary) terms of reference should be expanded to include an examination of the conduct of the entire Fiji judiciary. In making this observation, the Mission is not challenging the character or integrity of any individual members of the judiciary. It cannot help but note, however, that a number of senior judges themselves hold overtly hostile and publicly documented views about other judges, with allegations and counter-allegations of inappropriate behaviour.
• Perhaps the time has come for these matters to be formally and independently assessed and for appropriate action to be taken, on the basis of that assessment, to restore a fitting level of collegiality and dignity to the working environment. If it were considered that the Tribunal would be an inappropriate forum for such an inquiry, a special independent inquiry might be a suitable alternative mechanism.
• There is overt disharmony within the Fiji judiciary. The origins of this disharmony clearly date back to 2000. Time has not healed any philosophical divide within the judiciary – indeed, as recent events have shown, time has exacerbated the problem, or at least the perception.
• A diversity of opinions, divergent political affiliations and differing philosophies are generally healthy elements of any working environment, including the judiciary. The situation in Fiji has, however, seemingly exceeded the bounds of tolerance in this regard, leading to a potentially dysfunctional situation.
  
• It is not satisfactory if the current divisions are resolved solely on the basis of attrition and boycott. Lingering suspicion, resentment and innuendo within the community – including the local and international legal community – will continue to undermine the remaining members of the judiciary and the work of the courts unless a formal and independent enquiry has once and for all assessed the issues, commented on the divisions and expressed confidence that whichever judges continue to serve are untainted by political or personal agendas and are capable of continuing to serve in a collegiate and dignified environment.

Download a copy of the LAWASIA report here.