By Andrew Laxon
An unlikely secret mission reveals how military power has overturned the country’s rule of law. Andrew Laxon reports
English lawyer Nigel Dodds was able to tell the truth as he passed through Customs on his way into Fiji last November. The 62-year-old semi-retired solicitor from Morpeth, Northumbria, was in the middle of a long-planned world trip, so he ticked tourism as the primary reason for his visit. However, the chairman of the English-based Law Society Charity was really on an undercover mission to determine first-hand whether the rule of law had collapsed in Fiji, as reports had claimed.
The evidence looked damning enough. Since Commodore Frank Bainimarama seized power in 2006, lawyers who question the military Government’s actions have been rounded up and tortured. The entire judiciary was sacked in 2009 and the Government has ruled by decree since then. However international observers who tried to report on the problems have been turned away.
Dodds thought he might have more luck with a low-key approach. He figured no one would take too much notice of “an elderly gentleman tottering round the world” so, with the help of a few advance phone calls, he worked his way round the main island, Viti Levu, chatting to current and former judges and lawyers in a series of clandestine meetings in bars, restaurants and coffee shops. (Fiji’s public emergency regulations banned any meeting of more than three people without a permit.)
He tapped the brains of the British High Commission and international agencies working in Fiji and tried less successfully to get the views of ordinary Fijians, who were reluctant to speak out.
His report, published last week, was unequivocal. Fiji is effectively a dictatorship, with no rule of law, no democracy, no freedom of expression and no legal way for citizens to challenge Government decisions. Dodds sees little hope in the short-term, as the military has the power to suppress virtually all dissent and rewards those who support it. But he believes other nations can and must speak up against Bainimarama’s abuse of power, as ordinary Fijians can no longer do so.
Under the decree system, courts cannot rule on Government decisions in any way. Notices on courtroom walls remind lawyers and judges not to go down this track and if any cases do slip through the net, the Government-appointed chief registrar can simply terminate them.
“Given you’ve got no right of assembly, you’ve got a controlled press, there’s no way legally to challenge the Government,” he told the Weekend Herald this week from his home in England.
“Even people sticking up minor graffiti are charged with sedition. That’s actually happening… It’s absolutely monstrous.”
Fiji’s legal and political problems date back to 1987, when Lieutenant-Colonel Sitiveni Rabuka led an abortive coup in May, followed by a successful attempt in September. Rabuka, who later became Prime Minister, changed the constitution to guarantee indigenous Fijians dominance in Government. Despite this, an Indo-Fijian-dominated Labour Party headed by Mahendra Chaudhry managed to win power in 1997. It was overthrown in 2000 by George Speight, who occupied Parliament and held the government MPs hostage for 56 days.
Witnesses say Bainimarama wanted the military to take over then, but was persuaded to allow the formation of a new Government, headed by Prime Minister Laisenia Qarase. After two coup attempts, which failed when senior officers refused to support him, Bainimarama seized power in December 2006 and suspended Parliament, which has not sat since.
According to a comprehensive 2009 report by the International Bar Association Human Rights Association – compiled from phone interviews because the group was not allowed to visit – judges soon became the victims of a series of attacks and intimidation. Justice Gordon Ward’s home was burned down while he was on holiday. The suspected arson was never investigated. Justice Gerard Winter’s car was sabotaged by the removal of key mechanical components, which could have resulted in a serious accident. Justice Roger Coventry was reportedly followed by military officers after he made a ruling awarding costs against the interim Attorney-General. The report said lawyers who spoke against the Government were taken from their homes late at night, detained in military barracks and subjected to violence.
The entire judiciary was gradually replaced with judges willing to do the regime’s bidding. Within days of the coup, Justice Daniel Fatiaki, who had provided legal advice to Bainimarama’s opponents in the 2000 Speight coup, was forcibly removed from office on questionable charges.
He was replaced by Justice Anthony Gates, who had previously supported upholding the constitution in defiance of the 2000 coup. By this time however, Gates’ reputation was severely tarnished – overseas-based judges on Fiji’s Court of Appeal found he told guests at a cocktail party that he would “put away” a prominent chief, Ratu Takiveikata, on criminal charges relating to the coup. The three New Zealand and Australian judges who ordered a retrial found Gates lied under oath when he denied in court that he had made the statement.
At the end of 2007, six New Zealand and Australian judges resigned from Fiji’s Court of Appeal, apparently because they felt they could no longer work with the military regime. Other judges resigned or let their appointments lapse in 2008, some explicitly blaming the regime for their decision.
When three Australian judges on the Court of Appeal overturned the High Court decision in April 2009 and declared the coup unlawful, the Government simply sacked all the judges and began ruling by decree.
Dodds’ report says Chief Justice Gates has since used his personal connections to recruit large numbers of judges from Sri Lanka on short-term but renewable contracts. It says the quality is seen as variable and independence from the regime must be difficult.
The report says newly qualified lawyers and recent Sri Lankan imports make up the bulk of staff at the Fiji Independent Commission Against Corruption and the office of the Director of Public Prosecutions. Four directors have been sacked or replaced since April 2009. The current director is former Solicitor-General Christopher Pryde, a barrister in Christchurch until 2007, who this week described Dodds’ report as spreading “false, outrageous and inflammatory allegations against the country’s judicial system”.
Dodds says he deliberately spoke to a range of people, from supporters to opponents of the regime.
He rejects the argument, sometimes put up by the regime’s supporters in New Zealand, that Bainimarama has done the country a favour, even if his methods are a little harsh.
“That’s been the excuse of most dictators, that they are actually making things better for the people and running things more efficiently.”
In a comparison guaranteed to end any prospect of a return visit, he adds: “Mussolini made the trains run on time.”
Blow by blow
Military commander Frank Bainimarama seizes control in a coup. He suspends Parliament, which has not sat since.
Senior judges and lawyers are subjected to attacks and intimidation, including torture and suspected arson and sabotage. The Chief Justice is removed from office but after two years all charges are dropped and he receives a $275,000 settlement.
New Zealand and Australian judges on Fiji’s Court of Appeal find the new Chief Justice has lied on oath.
The International Bar Association Human Rights Institute produces a scathing report on the collapse of the rule of law in Fiji.
Australian judges on the Court of Appeal overturn a finding by local High Court judges that the coup was legal. The military government sacks all judges and begins to rule by decree. It bans any meeting of more than three people under public order regulations.
English lawyer Nigel Dodds visits Fiji on a secret fact-finding mission.
Public order regulations are suspended but fresh decrees and arrests occur. Elections – originally set down for 2009 – remain promised for 2014.
Please see the following link to the original article on the NZ Herald Website.