April 14, 2007

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.


The Keyboard C@per said...

while I appreciate you providing us with such information, would it be possible for you to provide us with the ORIGINAL link for the document. The one you have provided here is merely a link to a document hosted by a file-sharing server. For the sake of authenticity, please provide the original link ;)


Pro democracy activist said...

I am not sure what alternative there is. The rule of law cannot be maintained while there is widespread corruption in the government and legal system. Both proved prior to Dec 06 that they cannot/ will not clean themselves up. After all discrimination in legislation and in the application of of the law is unconstitutional and therefore illegal in Fiji. Let alone being against international law and the UN declaration of human rights. We all saw the the CJ clearing his files/ evidence from his office. Should we just let the crooked and corrupt continue to dominate this country? Of course not.

Anonymous said...

I was pleasantly suprised to see our one and only CJ Daniel Fatiaki on the late night news..though I don't know him on a personal level, it was like 'hey there, its been ages since i've seen you'..I noted he had acquired a lovely deep tan most probably from his lovely island paradise of Rotuma and had somewhat lost weight but he looked so well that I thought to myself, this man could go for another 60 years or so..!! We all can't wait to have him back at the helm where he rightfully belongs..the judiciary is currently like a ship without a sail and much less, without an experienced captain to steer us legalese, through these treacherous dark waters!

Anonymous said...

To pro-democracy activist: you sound more like a pro-coup, pro-junta supporter than what you purport yourself to be!

Stop deluding yourself as you're obviously clueless when it comes to the fundamentals of a democratic society, OR perhaps, PRIDE & VESTED INTEREST are preventing you from seeing reason.

Your nagging obsession about alleged corruption (remember we hve yet to see a shred of credible evidence, and puhleeese don't be a clown and count Peter Foster..lol!) ..and those 'illegal' legislation would hve been properly determined through a concept of democracy called ' due process'. Let me spell that out, those 'illegal legislation' were the controversial bills that you and cranky franky used as a 'poor excuse for a coup' would hve been struck down by the Courts even before they become law. Almost everyone knew that and I know you do too.

So..for Fiji's sake, pls stop drumming up excuses because you and your pro-coup cronies all hve yr back against the wall these days. Rest assured that all you lot hve really achieved is to harden the silent majority's resolve to bring you lot to justice..and you can't run!

By the way you try hard smart-ass, don't bluff, CJ left the courthouse that day holding NOTHING in his hands! Bring out yr evidence and name the time and place!!

Anonymous said...

Qarase and his men have gone the way all ungodly men who profess to be godly, should go. Bainimarama is merely an instrument, no more. Not many people condone what he did, but maybe it was what was needed.

Karma baby!

Anonymous said...

Keyboard c@per is a Junta/IG/Millitary mole or double agent. I give you proof in comments of his that I have pasted below from an earlier blog of yours. NL in his comment is Neumi Leweni. Be careful of the info you give him. Please tell all the other bloggers. He is trying to dupe everyone in to thinking that he is neutral or anti-coup.

"pro-military said...

We know this blog is an extension of Laisa Digitaki's crappy Fiji Living magazine. We are coming after you Laisa. This time, you will be part of the statistic.Now we know its you who complained to the overseas people. We know where you hiding. Tell your Fijian Holdings husband to get ready for jail. He is next on the list for corruption like his friends in FNPF & Post Fiji.
09 March 2007 16:57

The Keyboard C@per said...

good stuff pro-military... i too now know who has created this site... took me a heck of a while to work out who all the author's are... I'll have a chat with NL and see if he's interested in knowing who the author's of this site are. The problem was tracing the IP's used for publishing the articles but with a little help from DNSSTUFF i've managed to find out the locations from where the articles were posted.

Its sickening to see people using the bullshit line that the Internet is a place where one can express themselves freely without prejudice... wrong!!! Its heavily regulated and there are a number of ways of clamping down on sites such as this.
09 March 2007 17:06

Chief Intelligentsiya said...

It's still amazes me how people claim that this blog is an extension of Laisa Digitaki's magazine. I haven't met Laisa Digitaki in my life although, as I have said before, one of the first posts on Intelligentsiya was her statement detailing the events of her Christmas detention. But putting the blame on Laisa and saying she will become "part of the statistic" as "Pro-military" said just shows the mindsets of the people supporting the military's violent actions.
09 March 2007 17:34"

Anonymous said...

Hello! Calling Keyboard C@per! Where art thou and NL? Lying low because we discovered your caper?