Fiji’s laws: The baby that no one wants

By Brother M

IG Attorney General and Minister for Justice Mr Aiyaz Sayed-Khaiyum recently said that the timeline for the tribunal to investigate the status of the real Chief Justice Daniel Fatiaki did not worry him, despite the fact that, in not yet formulating a committee or terms of reference, Fiji has failed their obligations under the EU agreement made earlier this year.

In this agreement, a proviso for the continued funding from EU was that progress was to be made in relation to the status of Justice Fatiaki and the investigation into allegations of misbehaviour made against him (which heretofore have NOT been formalized in any sort of charges). Frankly, this is ridiculous, and worse still reflective of an attitude evident in much of Fiji’s population.

Let me first speak on why it is ridiculous. Mr Sayed-Khaiyum appears to have no qualms with shirking his responsibilities, as evidenced in his wanting to get an extension on his assignment, just like a lazy teenager who hasn’t finished his school project on time. So, this lazy teenager intends to just stroll into the EU headquarters like he’s king-shit, and say, “Hey, Mr Boss man, give me an extension, eh?”

I hope they throw him out on his ass. The EU needs to punish him for failing. Write a big fat F on his assignment and a big fat L for loser on his forehead. I mean, what the hell else has he been doing if not this very important aspect of his job? Just flicking through the law books and Constitution of Fiji with Dr Shaista Shameem, looking for loop-holes to help his buddy Bainimarama cause further havoc?

So it’s clear Mr Sayed-Khaiyum is not hugely committed to his international obligations or his job as Minister for Justice. However, what I find most disconcerting and disappointing is the fact that he can be so blasé about the importance of resolving the issues pertaining to CJ Fatiaki. There are many reasons why Mr Sayed-Khaiyum should be worried, and may reasons why this needs to be resolved and quickly, for the sake of the interim government (IG) and the community at large:

The international community, governmental and judicial, is losing or has lost all faith in the credentials of the IG to uphold the rule of law. Too many things have gone without thorough investigation, and the operations of the courts have been compromised by a ridiculously biased CJ in Anthony Gates, and a coup apologist in Shaista Shameem (just read her report on the Dec 5 coup to see how much of a sham she is!) CJ Fatiaki, by definition of his job, could not have been involved in the system of mismanagement and corruption of the previous administration, and unless charges of such can be formalised (they’re probably being made up as we speak) he should be reinstated. If they can formalise charges, they should do so immediately to prove that someone is actually working towards a resolution of this stupid state of limbo.

The international community doubts Fiji’s ability to follow through, as does it’s own denizens. They need to show that they can actually make things happen. My fear with respect to how they choose to engage this is that the IG may decide to compromise the law in trying to prove they haven’t just wasted all this time having two CJ’s simultaneously: they may make falsified documents and fake allegations in order to show that they were right all along. I truly fear what the IG is capable of in turns of casting asunder the precious laws, that enshrine the rights of Fiji’s people, and within which are the keys to future success for the nation.

The government is financially burdened by maintaining two Chief Justices, neither of whom are currently doing any work; Fatiaki because he is not allowed in his own office, and Gates, well, I’ll best leave it there.

So the status quo with respect to the status of CJ Fatiaki is problematic on a few levels. The case brought by the Fiji Law Society against the Judicial Services Commission, basically questioning the status of CJ Gates and whether he has any right to sit as CJ, should shed some light on CJ Fatiaki’s status too: if Gates’ promotion is proven illegal (as it should be if justice is not maligned) then CJ Fatiaki should be recalled to office, or invited to decide on his own successive acting CJ, as the process is meant to be. Nazhat Shameem, who decided to convene a JSC meeting despite her ineligibility, needs to be cut down and proven to be a sham. The laws pertaining to this are simple, and were undoubtedly contravened by her actions. If she and Gates are not reprimanded for the JSC meeting and the subsequent direction of the judiciary, you will know that justice and the rule of law have been abandoned in Fiji.

What I find fascinating, and very well illustrated throughout the whole Fatiaki case, since his suspension in January, is the general lack of interest Fiji people have in the law and their rights in a democracy. Further to this I think it points to a very broad disengagement to government, politics and legal issues among Fiji people. Given the normal living conditions in Fiji, I can somewhat understand this: life is hard enough as it is trying to make ends meets and support a family, without having to wrack one’s brains over politics, and where one personally stands. I think the many coups are to blame for this disengagement: while you’d expect the continuous trampling of people’s rights to ignite a high level of engagement in the system that governs their lives, I think all it has done is reveal all the complicatedness of the law and it’s governmental bodies, such that it flies over the head of most people.

Most surprising is how this attitude of disinterestedness impacts the legal fraternity. Graham Leung was very right to compare Fiji’s legal profession to that of Pakistan: when Iftikhar Chaudhry, CJ of Pakistan was suspended pending investigation, the law society caused such a stir that most lawyers across the country rioted in the streets. Fiji’s response pales in comparison, with petitions the order of the day. Leung should be applauded for his call to (non-violent) arm at the latest meeting of the Fiji Law Society. However he should take heed of my observation in regards to Fiji people and how they see their laws and rights. Just like the average guy on the street, Mr Sitiveni Citizen, most members of the legal profession are merely interested in themselves and their quality of life, too scared to go out on a limb to defend the rule of law. I hope that answers your question, FLS.

But once again this is a mere example of the attitude that permeates much of Fiji’s society. The rights of Fiji people are enshrined in the Constitution and subsequent common law of the nation, and yet the law is the baby that no one wants. No one is sufficiently interested in the law to read it.

My prescription:

1. Fiji’s legal profession needs to take a long hard look at itself, each individual questioning why they entered into the vocation. Lawyers across the nation need to understand that they need to be the readers and defenders of the law. They need to present a united front to the people of Fiji, and be the first to ignite the flames of unrest when the actions of those in power are legally questionable. I applaud Hemendra Nagin, Tupou Draunidalo and Graham Leung for their work to bring this to reality.
2. Fiji people generally need to become more engaged with the laws that govern their domain. Each household should have a copy of the Constitution, and feel committed enough to what it says, to stand up when they feel it has been compromised. CCF and Yabaki have been doing this for a while, but I think this organisation needs to jolt of energy and a face lift for it to fulfil its capacity.

I think people’s connection to the law is a great benchmark of nationhood, and hope Fiji people are going to take it upon themselves to do their bit to guide the future of the nation. Don’t neglect this baby which is the law, because unless you bring it up nicely and teach it well, it will come back when it is grown up and ugly, seeking revenge against you who chose to ignore it.