There is much to be said about interference, whether it involves cases in Fiji or abroad concerning political interference in judiciary, the effects of judicial activism or both.
In this regard it is based on allegations made by a Sri Lankan born, former FICAC prosecutor, Madhwa Tenakoon . ANN posted video, interviews Radio Australia host Bruce Hill, whose full audio interview is posted subsequently.
FICAC is independent – Sayed-Khaiyum
Publish date/time: 17/08/2011 [09:13]
The Attorney General stresses that the Fiji Independent Commission against Corruption is an independent body investigating and prosecuting cases of corruption.
Aiyaz Sayed-Khaiyum has rejected the claims made on the ABC by Sri Lankan lawyer and former Manager Legal for FICAC Madhwa Tenakoon of political interference.
Sayed-Khaiyum said Tenakoon was dismissed for under performance. He said Tenakoon’s information is not credible.
Story by: Vijay Narayan
Radio Australia Pacific Beat, Audio (MP3 posted below) [Segment on Fiji 0-15mins]
ICJ to investigate Fiji legal allegations
Updated August 17, 2011 16:45:08
The independence of Fiji's legal system is to be examined by the International Commission of Jurists, following allegations of political interference.
The claims were made on Radio Australia by a former senior prosecutor with Fiji's Independent Commission Against Corruption, Madhawa Tenakoon.
The Sri Lankan lawyer says individuals have been targeted for prosecution because they are opponents of the coup installed military government.
However Sri Lanka's honorary consul in Fiji, Ajith Kodagoda, says none of the other Sri Lankan lawyers or judges working in Fiji have complained to him about interference by the government in their work.
But John Dowd QC, President of the Australian branch of the ICJ, says the allegations from the former FICAC prosecutor are serious and warrant further scrutiny.
Presenter: Bruce Hill
Speaker: John Dowd QC, President of the Australian branch of the International Commission of Jurists; Ajith Kodagoda, Sri Lanka's honorary consul in Fiji
DOWD: We will examine the issue as best we can. I'm here in Bangkok at our regional office at the moment and we need to highlight this. The Fiji government is obviously very concerned about what other organisations think about it, so we will examine the matter and try and bring pressure to bear on them to set up perhaps with the Commonwealth Heads of Government meeting some examination of Fiji to see what can be done to bring it back into rule of law.
HILL: Mr Dowd believes Fiji's legal system faces a fundamental problem of legitimacy.
DOWD: Once you get an illegitimate regime and this regime of course is not set up under the Fijian Constitution, you're bound to have this sort of problem. The difficulty that when they approach judges to sit there is that the judges are in fact not exercising proper legal authority, but that doesn't stop judges getting the decision right. The fact that they're legally supporting the regime doesn't mean they won't do the right thing.
HILL: But Sri Lanka's honorary consul in Fiji, Ajith Kodagoda, insists that the allegations of interference are coming from only one Sri Lankan lawyer. He says none of the other almost two hundred Sri Lankan legal professionals working in Fiji have complained to him.
KODAGODA: Nobody Bruce has brought any of this to my attention officially, none of the prosecutors or the lawyers or the judges. About two years ago, the Fiji government made official representations which has been for assistance in filling up some of the division we can see in Fiji and then I made contact with my counterpart in Australia, the High Commissioner and also the foreign ministry in Sri Lanka, and the Sri Lankan government officially from the president onwards sanctioned, the judicial officers to come and work in a friendly country even Fiji. So as far as I'm aware of it, it was done with the sanction of the Sri Lankan government and most of these officers are no pay leave or they're on all paid leave, so they are almost seconded to be serving the Fiji judiciary.
And at this stage we've probably got about 30 officers working in the judicial capacity. I've really personally heard no complaints from anybody. I understand this particular officer was dismissed by the FICAC about three months or two months ago, so he's apparently alleging that there are allegations that there was interference in his work which he didn't bring to my notice here. So like I said, nobody's complained to me as of now.
HILL; Are these allegations any source of concern for you though?
KODAGODA: Very hard to ...(inaudible) because nobody has made any specific allegations to me in my capacity as honorary consul. If somebody was uncomfortable, I would expect them to come and talk to me directly, if they're intimidated in any way or if there is any influence on them, then I would really expect them to come and talk to me. Apparently he's been working here for two years, so I don't know if he was uncomfortable, why he continued to work in Fiji for that long. And this particular case that he's talking about I think came in front of a Sri Lankan high court judge and I think the case was dismissed anyway. So I expect all the judicial officers here to be totally independent and so far I haven't had complaints from either party. This has been going on, the judicial officers have been coming here before my time 1980s onwards.
HILL: The ICJ's John Dowd says overseas lawyers and judges should stay away from Fiji entirely.
DOWD: The regime is not legitimate under the rule of law, the regime is not under the Constitution, therefore any judge that takes the position gives legitimacy to regime that's illegitimate and we in the ICJ are opposed to people taking positions. It doesn't mean that they won't do the right thing when they get there, but it's not legally the right thing, because of the lack of constitutional basis.
HILL: Do you think that judges from places like Australia and New Zealand and the UK should be prevented from taking jobs in Fiji or should there be sanctions against them once they return home?
DOWD: No, I don't think what they do in other countries is a matter for them, it's not for Australia to interfere, it's for Australia to protest.