New Zealand Lawyer online: Rule of Law lost in Fiji says Law Society Charity

By Darise Bennington

The Rule of Law no longer operates in Fiji, the Law Society Charity (Charity) has found following a visit to Fiji in November 2011. It also concluded that there is no peaceful and lawful way to challenge government decisions, no democracy, that the independence of the judiciary cannot be relied on, that the competence and independence of the prosecution service has been reduced to an unacceptable level, and that the government controls and restrictions make it virtually impossible for an independent legal profession to function appropriately.

The Charity was set up by the Law Society of England and Wales in 1974 to fund and provide expertise to organisations whose work is related to the law and the legal profession with a view to furthering law and justice. In its January 2012 report, Fiji: The Rule of Law Lost, the Charity considers the effect on the Rule of Law in Fiji of the events of 2009 and beyond.

Of particular concern was the Administration of Justice Decree 2009, which removed “the jurisdiction of the Courts to accept, hear and determine, or in any other way, entertain, any challenges whatsoever (including any application for judicial review) by any person to the validity or legality of any Decrees made by the President as from 10 April 2009” (at 5.5). Also of concern were the Public Emergency Regulations (Regulations) which were first imposed in April 2009, and which have been extended every 30 days by the Government since that date. Under the Regulations, the State has control over the movement of every person, the release of press statements, publications, and broadcasts of all media outlets, every gathering of three or more persons, and meetings or processions in public places.

The Charity became involved in the issues affecting Fiji’s legal profession and judiciary, and the Rule of Law, following a request by the Commonwealth Law Association for its support in enabling the attendance of former Fiji Law Society President Graham Leung at the Commonwealth Law Conference in Hyderabad in February 2011. Both Leung and the Charity were asked to address the Conference on issues relating to the Rule of Law in Fiji, with the Charity addressing the issue of the dismissal of the greater part of the Fijian judiciary and the removal from the Fijian Law Society of the registration of lawyers.

Aware the Fijian Government had denied access to the UN Rapporteur to investigate matters in 2009 as well as a delegation from the International Bar Association, the Charity took advantage of its Chair’s private visit to Fiji between 13 and 18 November last year to investigate the issues for itself. “The focus of the report was to be on what action could be taken by external law societies and bar associations to support the Rule of Law in Fiji,” it said at 3.3.

The Charity noted that the Regulations made it difficult to investigate, as a permit was required for any meeting involving more than three persons. “[H]ence an interview could not take place with more than two individuals at a time,” it said at 4.1.

The Charity also noted that a notice is posted to the walls of the Courts stating that “no proceedings challenging the constitutionality of the Government’s acts can be issued” (at 5.6).

With respect to the registration of lawyers, the Charity found that the implementation of the Legal Practitioners Decree 2009 denuded the Law Society of the power to register lawyers, with the power given to the Chief Registrar, the first of whom under the Decree was a former Senior Legal Officer with the Fiji military. On 23 May 2009, Major Ana Rokomokoti removed the files of the Fiji Law Society after threatening to arrest staff if they did not hand over the files. “This was despite the offer of an orderly handover by the Society,” said the Charity at 8.3.

Since 15 June 2009, all lawyers have to have the approval of a government official in order to practice. Rokomokoti’s lack of independence was underlined, said the Charity, when she was arbitrarily removed from office on 25 June 2011. Her replacement is a Sri Lankan on a three-year contract, although the Charity noted that her tenure “is entirely at the will of the Government” (at 8.4).

Of the 300 or so legal practitioners practising in Fiji at the time the Decree was implemented, only one – Leung – took a stand and refused to apply for a practising certificate. “He is now an exile being unable to work as a lawyer in Fiji,” said the Charity at 8.6.

Another area of concern to the Charity is the appointment of former High Court Judge John Connor as Commissioner of the Independent Legal Services Commission, which now holds responsibility for hearing complaints against lawyers. “Under the Legal Practitioners Decree, charges are brought before the Commission by the Chief Registrar,” said the Charity at 9.1. “The Chief Registrar can pursue charges of her own initiative even if withdrawn by a complainant.”

The Charity noted that while there may have been dissatisfaction with the previous legal complaints regime – over issues of delay, for instance – there were problems with the current regime, especially with respect to cases involving the Government directly or indirectly, or where the lawyer concerned opposed the Government, or was involved in a case or had a client in which the Government perceives an interest. The Commissioner was also regarded as a supporter of the Regime, with the Society noting at 9.6 that “his acceptance of the post in any event calls into question his independence of it”. It also noted that the control of the prosecution system by the Chief Registrar makes it susceptible to government interference.

The Charity also considered the role of prosecutors under the new regime, and the impact of the series of dismissals of prosecutors since the “long-standing and respected” Director of Public Prosecutions (DPP) Josaia Naigulevu was dismissed along with the judiciary in April 2009. The most recent appointee to the role of DPP is Ayesha Jinasena, a Sri Lankan on a two-year contract. Said the Charity at 12.5, “The office of the DPP and that of FICAC became populated with the newly qualified and lawyers imported from Sri Lanka. The DPP was seen by her staff as largely an administrative figurehead and ineffectual in the control of casework.” Jinasena was sacked and ordered to leave Fiji on 24 November – due to “lack of confidence by the police” (at 12.8). She has since been replaced by New Zealand lawyer Christopher Pryde (who was previously Solicitor General).

The Charity noted that the judges dismissed in April 2009 were given no reasons, no notice, and no compensation for loss of office. “It is apparent that their sin was to comply with their oath of office and to act independently rather than any misconduct,” said the Charity at 13.4. “It is difficult to conceive of a more obvious attack on judicial independence.”

The Charity found that Chief Justice Gates had used his personal connections with Sri Lanka to recruit Sri Lankan judges in large numbers on short-term, renewable contracts. “The quality is held to be variable. Maintaining independence from government in their position must be difficult,” it said at 13.6.

The Charity noted in its report that these appointments are now being considered by a subcommittee set up by the Commonwealth Law Conference.

The purpose of the Charity’s report is to provide recommendations to the wider global legal community in order to ensure that Fiji returns to the Rule of Law. It has set out the following eight recommendations:

“The Law Society of England and Wales and the Bar Council reaffirm their recognition of the Law Society of Fiji as the representative organisation of the Fijian Legal Profession and urges this position upon the International Associations on which they are represented.

“The Law Society of England and Wales seeks British Government funding to provide capacity building to the Fiji Law Society in relation to the registration and discipline of lawyers such assistance to be offered on a government-to-government basis.

“The Law Society of England and Wales and the Bar intervene on behalf of individual lawyers whose human rights are impinged in Fiji and urge other national associations to do likewise.

“All national and international law society and bar associations urge their member firms to resist efforts to discriminate against individual firms in Fiji in transactions in which the member firms are involved.

“The Commonwealth Lawyers Association pursues the investigation as to whether those accepting office with the Regime can have their conduct reviewed under home bar rules and urges its membership organisations to do likewise and further considers how the issue may be addressed in Sri Lanka.

“The Bar Council in England and Wales and the Inns review the membership and qualifications of those holding office under the Regime and consider whether they continue to be justified and that other national organisations do likewise.

“That Rule of Law issues in Fiji be monitored on a continuing basis with regular reviews of developments by the Commonwealth Lawyers Association and the International Bar Association.

“All national law societies and bars lobby their governments to press for measures to be taken by the Fiji Government to ensure a return to the Rule of Law.”

NZLawyer \\ 24 February 2012 \\ Issue 178