A legal comment by Fiji’s Shortest ever Resident Magistrate

I have only looked over the document (the new draft Constitution) for ten minutes but what I have seen scares and shocks me. The findings below relate only to the judiciary and the rule of law.

 

It is a hallmark of any democracy that power is not concentrated in to a few sets of hands. That is the reason we have parliaments in the first place.

 

Here are my initial observations (my suggestions for an easy remedy are italicised):

 

Point 1.

 

The Chief Justice becomes acting President in the absence of the President. (s 87) (Parliament should choose a Vice President [semi –retired senior public figure] selected with 50% of support from the house.)

 

Point 2.

 

The PM can request the CJ to establish a tribunal to remove the President  (s88 (3)

(The two person tribunal should be recommended to parliament by the AG. Parliament may then make a motion in its own right, to dismiss the president [ requiring a 75% majority]after allowing the President to show cause before the parliament. This should be a function of the parliament and not the PM and CJ)

 

Point 3.

 

Only the president can remove the CJ (s110 (2)

(The two person tribunal to investigate and recommend the dismissal of the CJ should be established by the AG. Parliament may then make a motion to move the President to dismiss the CJ [requiring a 75% majority]after allowing the CJ to show cause before the parliament.)

 

Point 4.

 

The quorum of the Judicial Services Commission (JSC) IS the Chief Justice, and two others. S103(2)

(The quorum should be larger and more diverse. The current proposal is a dangerous precedent.)

 

Point 5.

 

The president acting on the advice of the JSC, can establish a two person tribunal to remove a judicial officer (other than the CJ or PCA). S111(3)

(The two person tribunal should be established by the AG acting on the advice of the JSC. Parliament may then make a motion to dismiss [requiring a 75% majority]after allowing the judicial officer to show cause before the parliament.)

 

Point 6.

 

The Solicitor General is appointed on the recommendation of the JSC after consultation with the AG ( s115 (3)

(The recommendation of appointment of an SG should be made by the AG to parliament requiring 50% of support from the house. This should be at arms-length from the JSC )

 

Point 6.

 

The Solicitor General can be removed from office on the recommendation of the JSC. (s115 (7) as per s111)

(The recommendation for removal of an SG should be made by the AG to parliament. Parliament may then make a motion for the President to dismiss the SG after allowing the SG to show cause. This should be at arms-length from the JSC. )

 

 

Point 7.

 

The Director of Public prosecutions is appointed on the recommendation of the JSC after consultation with the AG ( s116 (3)

(The recommendation should be made by the AG to parliament requiring 50% of support from the house. This should be at arms-length from the JSC )

 

Point 8.

 

The Director of Public Prosecutions can be removed from office on the recommendation of the JSC. (s115 (7)

(The recommendation of removal of the DPP should be made by the AG to parliament. Parliament may then make a motion for the President to dismiss the DPP after allowing the DPP to show cause. This should be at arms-length from the JSC. )

 

Point 9.

 

The JSC has authority over all public servants employed in the Judicial Department. S 107

(Judicial Department employees are not judicial officers. They should be dealt with by the Public Service Commission. This is another dangerous and unwarranted precedent.)

 

Point 10.

 

FICAC is a stand alone commission of inquiry and not related to the judiciary it should be a chapter in its own right within the constitution. S 114

 

The Commissioner is appointed by the President on the advice of the Attorney General. (s114(3)

(The Commissioner should be appointed by Parliament on the advice of the AG with 50% support of the House).

 

Point 11.

 

Section 114(5) allows the FICAC to conduct criminal proceedings.

 

This is an extremely dangerous precedent. (The FICAC should not be able to commence criminal proceedings in its own right. It is a commission of inquiry, an INVESTIGATOR NOT A PROSECUTOR. It is not a court of law.

The FICAC as with any standing commission of inquiry. It should conduct investigations (similar to a police service) and then refer its finding to the DPP.)

 

Point 12.

 

Under s114(7) the FICAC is subject to the authority of the courts.

 

(This is hard to interpret. The FICAC should ONLY be answerable to parliament not subject to the authority of the courts, except insofar as they require the courts to approve the exercising of its coercive powers. )

 

 

The Nail In the Coffin !

 

Point 13.

 

All current judicial officers (including the Solicitor General and Director of Public Prosecutions) will continue in office after the elections ?(s118)

 

I recall a conversation I had in Sydney with Mr Gates in March 2012. I would swear to the truth of this conversation if I was placed under oath:

 

I said (words to the effect): If I accept the position (Head of the Legal Practitioners Unit) what happens after the elections. We may all be put up against a wall and shot.

 

He said (words to the effect):  Don’t worry about that. I will ensure that all existing contracts will be honoured by any new  government.

 

How did he know that? You decide for yourselves. (see s118)

 

 

SUMMARY

The JSC will hold powers that should be held by parliament alone.

The Chief Justice will continue to be the most powerful man in Fiji, despite potentially committing serious crimes against the justice system. The CJ will be president from time to time. The PM can request the CJ to remove the President? Only the President can remove the CJ?

 

The Chief Justice controls the hiring and firing of all judicial officers including the Solicitor General and the Director of Public Prosecutions. The DPP and SG cannot be independent under these provisions. They are under the direct and indirect control of the Chief Justice (as Chairman of the JSC).

 

Each judicial officer is under the control of the Chief Justice (as Chairman of the JSC). They cannot be seen to be independent. They must be under parliamentary control for independence to be achieved.

 

A proper and transparent JSC should only have the function to investigate and make referrals to parliament in relation to judicial officers ( and not senior statutory positions such as the SG and DPP). It should not have the powers to dismiss any judicial officer which are rubber stamped by the president.

 

In a properly constituted democracy , the JSC has a the function of investigating a judicial officer and making recommendations to Parliament. It requires parliament to make an address and call the Judicial Officer before the House to show cause. (This has happened on only a few occasions in NSW over the last 100 years).

 

In a properly constituted democracy the offices of the DPP and Solicitor General should be independent and in no way under the control of the JSC (Chief Justice, PCA and one other). 

 

The Current Chief Justice of Fiji

 

The Chief Justice is the person most responsible for the displacement of the rule of law in Fiji. He has also destroyed any semblance of the separation of powers doctrine. This did not have to be the case. The Prime Minister gave the Chief Justice free reign to destroy these institutions via decree. The actions of the Chief Justice permeate all aspects of Fiji’s governance.

 

In my respectful view, current judicial officers, including the Chief Justice, have potentially committed criminal offences, i.e. perverting the course of justice and abuses of power and process. These offences carry terms of imprisonment if guilt is proven. Mr William Marshall has already documented his findings by way of signed petition. If the allegations made by Mr Marshall were investigated and substantiated, the Attorney General and several judicial officers, would likely serve lengthy custodial sentences.

 

HOW can these Judicial/ legal persons remain with an incoming parliament? 

 

HOW can they be properly investigated?

 

Under this draft, they cannot be removed or investigated by any incoming parliament. (A backup to the immunity provisions perhaps).

 

The Chief Justice has not only shielded himself and the Attorney General (and their accomplices) from potential criminal investigation and prosecution, the CJ has drafted a constitution that will allow him to continue to be the most powerful man in Fiji.

 

Support this Constitution if you want a neo colonial master. Do you want Mr Gates to be your president from time to time? Reject it outright if you want your new parliament to have proper functions, independence, transparency, accountability and powers, i.e. over the DPP, SG and other statutory bodies and commissions.

 

How will the DPP ever investigate and prosecute Gates. He appoints the DPP and he can terminate the DPP. Let judges judge. Have a constitution that gives the appropriate functions to Parliament and not to one man and two of his “rubber stamp” friends.

 

I still believe that many of the reforms that have been implemented by the Prime Minister are to be applauded. However, the destruction of the rule of law and judicial process that has been under the delegated power of Mr Gates, undermines these reforms.

The absence of the rule of law and proper structures of transparency and accountability, permeate all levels of Fiji life. This will continue under this proposed constitution. It will make any incoming parliament a toothless tiger. The Prime Minister has allowed the legal draftsman, under the guidance of Gates and the AG, to utterly destroy judicial, SG, and DPP independence.

The continuance of current decrees also continues the lack of independence of the entire legal profession in Fiji. The Chief Registrar has oversight and power over the Legal Profession (Legal Profession Decree 2009.) . The Chief Justice has complete control over the Chief Registrar. How much power can one man have?

 

I apologise if there are any errors in this report. This report was drafted in haste. I am prepared to provide a more comprehensive and refined report, if the exhortations contained herein do not fall on deaf ears. To those who see what I see, stay strong. The closer Fiji gets to the elections the further away democracy drifts. To those who do not see as I see, I respect you right to make your own choices. I am not attempting to sway opinion. I am merely giving you my initial observations as an independent observer and an advocate for the rule of law.

 

I do this in my own time at my own expense. I have NO vested interested. I remain banned for life from Fiji after my unlawful arrest and detention at Nadi in November 2012.

 

If you wish to make Mr Gates the most powerful man in Fiji, then so be it. If you want him to be your president from time to time, so be it.

 

 

Greg Bullard 24/3/13

Fiji’s Shortest ever Resident Magistrate (October 2012)