Coupists and wrangling lawyers
By Victor Lal
The Fiji Human Rights Commission director Dr Shaista Shameem's report against the deposed Laisenia Qarase government has drawn flak from some quarters of the legal fraternity. It has been described as "mostly laughable" by Suva lawyer Richard Naidu, who in an unwarranted broadside went on to suggest that "somewhere in her academic career, Ms Shameem apparently picked up a law degree. Her latest effort illustrates the dangers of allowing academic sociology types to study serious subjects like law".
However, in the next breath he himself has been portrayed in the press as a leading expert on constitutional law. If I am not mistaken, both Dr Shameem and Mr Naidu are a cross breed between law and journalism, having worked as newspaper reporters before qualifying as lawyers.
In Mr Naidu's case, he is a senior partner in Munro Leys specialising primarily in commercial and advisory work for clients in Fiji's aviation, energy, finance, sugar, media, telecommunications and tourism sectors. According to Munro Leys, he had recently been involved in advice and submissions to the deposed Laisena Qarase government on policy and regulation of both the tourism and telecommunications sectors.
He was a member of the Government appointed Fiscal Review Committee appointed in 2004 to advise Government on tax and fiscal reform. In reply, Dr Shameem said Mr Naidu had a hidden agenda which would be revealed in due course. By whom, and when?
Mr Naidu's legal partner Jon Apted, on the other hand, argues that the granting of immunity to the Interim Prime Minister Commodore Voreqe Bainimarama and his soldiers will arguably infringe on the human rights of others who want to sue them for wrongs they may have committed since the military takeover.
One begins to wonder whether the lawyers in Fiji are truly committed to their vocations or are simply changing tune in different contexts and eras. Take, for example, Mr Apted, who had no legal reservations to act as the Supervisor of Elections in the 1992 and 1994 general elections, which was held under the blatantly racist 1990 Constitution, and which had basically disenfranchised half of Fiji's population - the Indo-Fijians following the racially motivated Rabuka coups of 1987.
The positions of Prime Minister, President and armed forces commander were reserved for ethinc Fijians, as well as 50 per cent of civil service jobs for Fijians and Rotumans, and also 37 seats were reserved for Fijians in Parliament. The notorious affirmative action programme was also introduced into the 1990 Constitution.
It was only recently that I condemned the hypocrisy practised by the president of the Fiji Law Society, Devanesh Sharma, in relation to the military lawyers, and challenged him to state why he had no qualm in defending the godfather of the coup culture, Sitiveni Rabuka, who was charged and found not guilty of inciting mutiny against the Commodore.
Here again, one can ask Mr Apted to explain what is so repugnant about the proposed immunity planned by the President for Commodore Bainimarama and his soldiers, and yet Mr Apted saw nothing wrong in supervising two general elections which had returned Mr Rabuka as Prime Minister. Mr Rabuka had only become the Prime Minister because he had clothed himself under the sulu of immunity from prosecution for the crime of treason, which had carried the death penalty in 1987.
Mr Apted, in reference to Commodore Bainimarama, now claims that "If you grant civil immunity for the men and women of the RFMF and you deprive somebody of the right to sue them for something wrong that they might have done, arguably you are infringing on that person's human rights"
"Even if somebody made a law granting immunity, the immunity that has been promised is criminal and civil immunity prevents a person, whose rights have been breached, from suing in a court for damages", he said. In 1987, it was the former Governor-General Ratu Sir Penaia Ganilau, who after becoming the post-coup President, and supported by the GCC, had granted Mr Rabuka and his co-coup conspirators and others immunity from prosecution for executing not one but two coups, and hence shielding them from prosecution for the violence, brutality, and torture that was inflicted largely on the Indo-Fijian community.
Although I disagree with some aspects of the FHRC report, it ought to be read, as Reverend Akuila Yabaki has urged us, with open mind. It was only a decade ago, in 1997 when Justice Daniel Fatiaki (later CJ) had ruled that Mr Apted, as Supervisor of Elections, had misdirected himself in law when he (Mr Apted) had refused to entertain a request from Dr Wadan Narsey that the latter be registered on the voter roll to enable him (Dr Narsey) to contest the Suva City Indian communal seat on an NFP ticket which had become vacant by the death of lawyer Harilal Patel.
Dr Narsey had erroneously thought that he was already registered previosuly, and that registration continued until the death of the individual. Mr Apted had refused to use his discretionary powers to entertain Dr Narsey's application for late registration (The State v The Supervisor of Elections, ex parte Wadan Narsey, 1997).
Moreover, Mr Sharma now says his society is seeking an independent view of the move by the military to send the Chief Justice and Chief Magistrate on leave while an inquiry is held into the judiciary. Mr Sharma, who is also a member of the Judiciary Services Commission, said the appointment of the Chief Justice was made in consultation with the chairman of the Public Service Commission and the president of the Fiji Law Society.
The society has also challenged the legality of the appointment of Commodore Bainimarama as interim prime minister. Mr Sharma said the Constitution stated that the Prime Minister must be a member of the House of Representatives and be a member of the controlling party in the House.
He is talking about the rules and procedures that existed during peace times in a democracy which, according to the former Prime Minister Laisenia Qarase, is 'a foreign flower' on Fijian soil.
We live under a State of Emergency and in abnormal circumstances, and the appointment of Commodore Bainimarama has been made by the President who not only fully supports the coup but claims that he would have himself executed a coup against the Qarase government if he was wearing the Commodore's military jacket and boot.
Now the GCC has also endorsed the appointment. In any event, the former chairman of the PSC, Stuart Hugget, is away in Australia, claiming to have taken an extended family holiday. The CJ went on leave without any protest.
As I have repeatedly pointed out, since the Commodore has executed a military coup, he has the sole authority to decide which parts of the
Constitution is defunct, and which parts are intact.
Whatever these wrangling lawyers do or say, they must remember that it was none other than Dr Shameem who initiated the now famous Chandrika Prasad case on which these lawyers are basing their legal positions. Where were her critics after the 2000 crisis? Why they did not themselves initiate a legal test case?
Well, here is more legal food for thought. Since Fiji has been suspended by the Commonwealth, why is the Fiji Law Society not calling on the foreign judges, mostly Australian and New Zealand citizens, to vacate the bench?
The archaic Commonwealth practice allows these judges to decide the consitutional fate of Fiji. How many Fijian judges are sitting on the Australian and New Zealand benches? Also the overseas lawyers' membership of the society needs to be re-considered. Those lawyers who are so offended by what has taken place can simply hang up their legal robes and close their law firms as a protest against the decision of the President and the GCC, who have now recognised the Commodore as Interim PM.
What took place on December 5 cannot even be described as a coup. Mr Qarase and his cabinet ministers had simply abandoned their portfolios and ran away, creating a public necessity for the Commodore to step in and take executive authority of Fiji, which he partially handed over to President Ratu Josefa Iloilo on January 5.
As to the clean-up campaign, the Commodore has emabrked on a path which the United States, Great Britain and Australia had undertaken when they illegally invaded Iraq in search of the perceived weapons of mass destruction which they claimed the executed dictator Saddam Hussein had in his possession. They had even set up an Interim Administration to run Iraq, with the American Paul Brenner as its governor.
In our case, let us hope and pray that the Commodore will find weapons on mass corruption in Fiji. The Commodore must not hurry up, for the Coalition forces are still in Iraq after four years.
He must not be deterred by the lawyers preaching the rule of law and constitutionalism to him. The rule of law seeks to ensure that the Government will not behave in an arbitrary, corrupt, or oppressive way. And yet when it comes to lawyers, they are immune from legal suit.
The primary basis for justifying an immunity from negligence within the legal profession is to maintain the lawyer's duty to the court over the duty of the client. Is it time to abolish the lawyers' own immunity from suit. Machiavelli once wrote: "For the reformer has enemies in all those who profit by the old order." Maybe, it is time Commodore Frank Bainimarama sent one of his men to the offices of the Registrar of Companies to see which lawyer and which legal firm drew up the business deeds of the Fijian companies and shareholders who are now under investigation in his clean-up campaign.
All governments are subject to overthrow - either at the ballot box or by the gun if they refuse to mend their ways or in our case tried to compromise the safety and security of the nation and her citizens for selfish political ends.
The rule of law is largerly a procedural notion; it does not address substantive questions. The 1997 Constitution needs major re-structuring before Fiji reverts back to civilian rule. Democracy gives no government the right to do what it wants to do in the country.
victor_lal@yahoo.co.uk
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