Law & Justice
This report is designed to monitor and assess positive, negative or neutral developmentsin the law and justice sector in Fiji in order to identify where improvements can be madeto strengthen the rule of law and improve the protection of human rights in Fiji. The ruleof law and access to justice are crucial to upholding law and order and to human security,stability and development. Assistance in this area is vital to build peace and stability. ThePreamble to the UDHR states that:
..it is essential, if man has not to be compelled to have recourse,
as a last resort, torebellion against tyranny and oppression, that
human rights should be protected by therule of law.
This report analyses certain law enforcement institutions, new decrees and court cases, toidentify whether the law and justice system is operating effectively, independently andefficiently. This report does not deal with the legality or otherwise of the present systemof governance in Fiji, but merely analyses the impact of changes on access to justice inFiji. This is done in good faith and for the public interest, and without prejudice to CCF!sposition on the purported abrogation of the Constitution.
This report only covers institutions where information on their work is publicly reportedand readily available. It has been difficult to obtain certain information, particularlyregarding the police force, the prisons service and the military (which all operate as lawenforcement institutions) in the current political climate.
An assessment of public confidence in law enforcement institutions would be beneficialas this would demonstrate a perception of fairness, justice and equality. If justice is notseen to be done by the public, then people are less likely to rely on or use theseinstitutions to promote and protect their human rights. A lack of confidence in theinstitutions that support and administer justice and the law also threatens peace andsecurity. Such an assessment (potentially through surveys) may become part of later reports.
This report should be read as a whole document, as the law and justice sector is made upof a number of components which are all interdependent (i.e. the legal framework/laws,law enforcement agencies, the legal profession, prosecution services, the judiciary). Forany reform in this area to be sustainable in the long term, there must be a holisticunderstanding of the entire system. Making a quantative assessment for the purpose ofthis report would be inadequate because of the interdependence of these institutions andthe legal framework. As a result, the report is mostly qualitative.
It should be remembered that an overall "negative! assessment simply means that there isa need for improvement in the effectiveness, independence or efficiency of theseinstitutions. This report is designed to gauge the extent to which all people equallyexperience and benefit from the rule of law.
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1.1 Major developments over the reporting period
Some highlights of developments in the judiciary over the past 12 months include:-
• 40 judicial officers were dismissed in this period (25 Magistrates and 15 High Courtjudges). Most of the judicial officers were dismissed on 10 April 2010 by theRevocation of Judicial Appointments Decree 2009. Since then, 5 Magistrates havebeen dismissed without notice. The table below includes details of when and whyjudicial officers were allegedly removed from their position.
• 8 of those dismissed on 10 April 2010 have been reappointed and are currently onthe bench (4 Magistrates and 4 High Court judges). There are only 3 High CourtJudges on the bench who were first appointed prior to the coup. Of these, bothPathik and Byrne JJ are over the constitutional retirement age for judges (70 years).
• There is one former military lawyer in both the Magistrates Court bench and on theHigh Court. Chief Registrar of the High Court, Ana Rokomokoti (former militarylawyer) also holds the positions of Chief Registrar and prosecutor in disciplinaryproceedings against lawyers.
• One third of judicial officers were brought in from Sri Lanka.
1.2 Judicial Appointments & Dismissals
There is currently no Judicial Services Commission, even though this body was reestablishedunder the State Service Decree in similar terms to the 1997 Constitution.
TheJudicial Services Commission is the appropriate body to consider disciplinaryproceedings against judicial officers, assess the merits of new candidates forappointment, and remove judicial officers (on limited grounds).
Judicial officers should be appointed for 5 years. It is understood that current judicialofficers are on 12 month contracts. This is concerning as security of tenure and ongoingpension entitlements after retirement are essential to ensure that judicial officers actimpartially and are not susceptible to bribes or corruption.
Until the Judicial Services Commission is established, all judicial officers are appointedand dismissed by the President acting on the advice of the Attorney-General. This processis not transparent or accountable.
Judges who are either appointed or promoted after 5 December 2006 may be seen to haveentered an # implicit bargain$ with the current regime. The implicit bargain is particularlyrelevant to all judicial officers (whether or not reappointed) after 10 April 2010 as theyhave sworn a new oath of office, declaring allegiance to this government. The implicitbargain means that a judicial officer is compromised because deciding againstgovernment would mean implicitly accepting that their appointments as judicial officersLaw & Justice Report5was unlawful and illegitimate (i.e. the validity and lawfulness of government is tied to thevalidity and lawfulness of judicial appointments) The implicit bargain does not mean thatthese judicial officers are not capable of making independent decisions, merely that theirindependence is compromised.
The Regulation of Pensions and Retirement Allowances Decree 2009, authorises thePrime Minister to terminate the pensions of judicial officers who # undermine theGovernment of the Republic of Fiji$ which indicates that judicial officers may lose theirpension entitlements if they make findings against the government in the course of theirwork as judges. This is further evidence of an implicit bargain where judicial officers areconfronted with the loss of employment entitlements for not "towing the line!.
It is possible that judicial officers could independently decide against government andargue in favour of the validity of their own appointments on the basis of the doctrine of necessity.
11.3 Judicial Recruitment
Historically the Fiji judiciary has always been supported by judges from otherjurisdictions (mainly Australia, New Zealand and the UK). Australian and New Zealandlawyers would often be briefed to appear in Fiji courts and would have some familiaritywith the local legal system. Since July 2009, there has been a focus on recruiting SriLankan lawyers and judges to take up positions with the judiciary. This may be a result ofthe deteriorating diplomatic relationships with Australia and New Zealand. However, noexplanation has been given as to why new judicial officers appear to now be recruitedfrom one jurisdiction (Sri Lanka), rather than a merit-based appointment from anyCommonwealth jurisdiction.
The presence of the Sri Lankan judges does not mean that they are not suitable persons tobe appointed to the Fiji judiciary, and they may in fact be less politicised than localjudicial officers because they are not from Fiji. It merely raises the following issues:-
• Whether the Sri Lankan judges are adequately trained in Fiji laws and practiceswhen they arrive; and
• Are they recruited based on merit through a transparent and accountable process?
There is insufficient information available about the history of Sri Lankan judicialofficers to make an assessment of whether or not they are suitably qualified, professionaland experienced persons to accept appointments to the Fiji judiciary.
1.4 Government influence & separation of powers
Over the past year a number of former military lawyers have been appointed to variousroles within the judiciary. It should be noted that this is a new development in Fiji (exceptfor after the 1987 coup). The fact that these persons may be subject to the direction andcontrol by the Military Commander, Fiji!s interim Prime Minister is sufficient to taint theindependence of the judiciary because it creates a perception that they will not be able tomake fair and impartial decisions. This indicates possible interference by the Executiveand creates a perception that the judiciary may not be independent.
Also, the powers given to the Chief Registrar (which cannot be challenged) to issuecertificates of termination in particular court cases against government demonstrates alevel of executive interference with the judiciary.
The appointment of military or former military lawyers within the judiciary indicates alack of clear separation of powers. Separation of powers ensures that the judiciary isindependent by separating them from the law-making body (usually parliament) and thegovernment administration (the Executive, including PM and Cabinet). Without a clearseparation of powers, the courts cannot independently decide on the lawfulness ofgovernment action.
Former Military Lawyer
Appointed or promoted post 5 December 2006
Appointed or promoted post 10 April 2009
2.1 The decree process
The parliament and parliamentary oversight committees are an important part of thejustice sector, providing checks and balances ensuring laws are passed throughconsidering the will of the people. The rule of law is a concept which relies on legalcertainty and predictability (everyone is subject to the same rules or laws, and is entitledto know what those laws are). An important feature of this is that law must be changed byan established process that is transparent, accountable and democratic.
Currently, on a de jure basis, the President assents to new Decrees (according to theExecutive Authority of Fiji Decree 2009, which may in itself be of questionable legality).On a de facto basis, decrees are considered in secret by the Cabinet before being passedby the President. This process of law reform lacks certainty, transparency andaccountability. Laws that have been frequently amended or back dated create confusionand uncertainty about the rules which apply at any given time.
2.2 Decrees promulgated within the reporting period
A full list of decrees can be found in Annex 1.Overview of Decrees passed since 10 April 2009:-
• 74 Decrees passed in this period. This is an exceptionally high number, signifyingmajor changes to the legal framework in Fiji.
• 39 Decrees contain minor amendments to other legislation (53%). 17 of these areminor amendments to earlier Decrees or Promulgations (23%).
• 11 Decrees have a provision removing judicial review of government decisions (i.e.they cannot be challenged in court). (15%)
• 24 Decrees centralize power, thereby decreasing accountability (32%).
• 27 Decrees involve changes to revenue or appropriation of resources (36%).
• 8 Decrees involve substantial law reform (in the areas of regulation of the legalprofession, the medical profession, the mahogany industry and crimes/DV). (9%)
Captured from Report by CCF on PDF file
"LAW & JUSTICE REPORTFIJIAPRIL 2009- APRIL 2010