Sound & Fury?

Australia Network News (ANN) covering the allegations of Fiji Independent Commission Against Corrruption (FICAC) and political interference.

FICAC website

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
Fiji Village
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

Radio Australia
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.

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Fiji Law Society President In A War of Words.

Fiji Law Society(FLS) President, Isireli Fa seems to be caught in a cross-fire between Fiji's Attorney General, Sayed-Khaiyum and Fiji's Ombudsman, Dr Shaista Shameem.

Shameem's initial comments stated that she was ashamed to be a member of FLS, which appeared in a Fiji Daily Post (FDP)article. The excerpt of FDP article:

‘I’M ASHAMED’
11-Feb-2008 01:59 PM

Shameem slams law society president. THE Fiji Law Society (FLS) has come under fire from one of its more prominent and controversial members for its non-participation and absence during the opening session of the Fiji Court of Appeal last week.

In a strongly worded letter of complaint addressed to FLS president, Isireli Fa obtained by the Fiji Daily Post, and dated February 7, 2007 Human Rights Commission director and society member Shaista Shameem said she was “ashamed” to be a member of the FLS.

Shameem said she was appalled at Fa’s actions and decisions as he went against his promise earlier that the FLS would be represented at the first Court of Appeal session on Tuesday, February 5.

Shameem said she attended the court in her capacity as Ombudsman and did not see any society member at the inaugural session.

It is understood Fa was away in Australia on a personal visit and was supposed to be represented by his deputy, Laurel Vaurasi. However, Vaurasi or any other society representative failed to make an appearance that day.

Shameem said she received a New Years email message by Fa later that same morning and among other things informed her of the society’s intention to host a “Bench and Bar dinner” three days later.

Shameem said the dinner was a good idea and seriously considered buying the “expensive” tickets because it was for a worthy cause, but after the FLS absenteeism from the Court of Appeal sitting, she demanded an explanation.

In her letter to Fa, she said that the failure of the society to attend court session was supposed to be an “unfortunate incident” but later that evening the FLS president told national television that the “FLS does not recognise judges appointed since December 2006 because they are unlawful”.

This she said was Fa’s new reason for the non-attendance of the FLS at the Court of Appeal. Shameem said that as a member of the society she should have been consulted on general views concerning the judiciary.

“I have no problems with your personal views or those of the FLS committee about the legality or illegality of the courts, etc. You are entitled to your own opinions, misconceived or ill informed though they may be. I do think, however that before making pronouncements of such magnitude as ‘judicial appointments are unlawful’ you must consult the membership. In fact, as a member I expected to be consulted,” she stated in the letter to Fa. Shameem added that Fa’s public remarks about the society not recognising some members of the bench was a “lack of common sense.”

“Your conduct is reprehensible. I am ashamed to be a member of the FLS because the President tells such fibs and then retreats behind some dogma of his personal legal position,” Shameem stated in the letter. She added and for Fa to suggest a “Bar and Bench dinner” designed as in his message ‘to create an environment’ for judges and lawyers to get together was not impressive.

Shameem said she has informed the Chief Registrar that she disassociated herself from Fa’s statement. In her email to Fiji Daily Post, Shameem had indicated that the contents of her letter to Fa was for “public consumption.”

No comments could be sought from Fa when this edition went to press last night.

Fa reacted to Shameem's comments, in blustering terms labeling it a 'Red Herring' in a Fiji Times article. The excerpt of FT article:

Shameem attack's a red herring, Fa says

Wednesday, February 13, 2008

THE attack by the Ombudsman, Dr Shaista Shameem, on the Fiji Law Society aims to divert focus from debate on the Judicial Services Commission, society president Isireli Fa says.

Mr Fa said the main debate was whether the meeting of the JSC on January 15 last year was lawful in its composition and if appointments it made were lawful.

"This is an important and fundamental question for the Fiji Law Society, the judiciary, the interim Government and the public of Fiji," he said.

"Dr Shameem's letter published widely in the newspapers and the internet focuses on petty and irrelevant issues which are not based on facts and is really an attempt to divert attention from the real issue and muzzle debate on it".

"The Fiji Law Society does not understand why Dr Shameem wants to muzzle a debate on this issue." Mr Fa said Dr Shameem seemed to have taken offence at the non attendance of the FLS at the opening session of the Fiji Court of Appeal last week.

He said the non attendance of the FLS was consistent with the approach it had taken since the military takeover on December 5, 2006. Mr Fa said the JSC meeting on January 15 last year recommended the appointment of Anthony Gates as acting Chief Justice but the reconstituted JSC had been making appointments to the bench without the input and participation of the FLS as stipulated under the Constitution.

"The Fiji Law Society, out of concern over the events of the December 5, 2006, had instituted legal action against the Judicial Services Commission's composition and appointments," he said. He said that position had been confirmed by a Special General Meeting in February 2007. The FLS position has not changed until to date."

Mr Fa said accusations by Dr Shameem that he reneged on his election promise by failing to consult her before making statements on television, were incorrect, juvenile and shallow.

He said the announcement he made regarding judicial appointments was nothing new as this was a position taken by the Society since the military takeover on December 5, 2006 and nothing had changed.

Fa, also attacked the Fiji Daily Post for misquoting him in a published article, according to a Fiji Village (F.V) article. The excerpt of FV article:

Law Society Hits Out at a Newspaper Company
Publish date/time: 13/02/2008 [16:01]

The Fiji Law Society has hit out at a newspaper company for publishing an incorrect paragraph with the Society's statement in today's Daily Post. Society President Isireli Fa said the first Paragraph in the Daily reading "the FLS is maintaining it stand that it does not recognize judges appointed since December 5, 2006" is incorrect and he has asked the newspaper to correct the paragraph.

Fa said the Society has not at any time stated that it does not recognize judges appointed since December 5, 2006. He said the society is concerned with the lawfulness of appointments to judges that have arisen since 5th December out of the Judicial Services Commission meeting that was held on the 15th of January, 2007.

The Society has instituted legal action to determine the lawfulness of the Commission meeting and appointments after that.

Fa said it appears the paper company has adopted statements from Dr Shaista Shameem and others who have been commenting on the Commission's position where they may have paraphrased the Society's position incorrectly.

Shameem snapped back at Fa, as quoted in a Fiji Sun article. The excerpt of F.S article:

‘Unlawful judges’ cannot hear cases
Last updated 2/14/2008 8:35:18 AM

Fiji Law Soceity president Isireli Fa cannot declare the appointments of some judges unlawful and still demand they hear his cases, says Ombudsman Dr Shaista Shameem. Mr Fa had said judges named to the bench after the 2006 coup were illegally appointed. Dr Shameem said she saw no reason to change her views as expressed in her initial letter to him. “Your seven page justification does nothing to assuage my concerns. Indeed you have evaded the issues I raised in my letter to you,” said Dr Shameem.

She said Mr Fa, in his election campaign for FLS president, had said he would consult with her on constitutional issues. Dr Shameem said this had not happened. “You cannot declare some judges to be unlawful and still demand that they hear your cases - why should you expect that?

“How can you appear before an unlawful judge?” She said Mr Fa could not have his cake and eat it too. Dr Shameem said he was interfering with the livelihood of lawyers by obstructing their ability to appear in court. She said Mr Fa was preventing them from fulfilling their duty to their clients as they expected them to recognise the court to which they took their issues and disputes for determination.

Meanwhile Attorney General paints the position of FLS President as confusing, quoted in a Fiji Live (FL)article.



The excerpt of FL article:

‘Fa confusing FLS members’
14 FEB 2008

Fiji Law Society president Isireli Fa’s change of positions on a number of judicial matters is the source of confusion to a number of his own members, including senior practitioners and the public, says interim Attorney General Aiyaz Sayed-Khaiyum.

Sayed-Khaiyum said Fa contested the presidency of the FLS on the basis that he would enter into dialogue with the judiciary.

He said the action brought by the Society, which challenged the status of the Judicial Services Commission (JSC) had been languishing in the courts because of the FLS itself.

“They have initiated the action yet they have been unable to instruct counsel,” Sayed-Khaiyum said. He said when this matter was called in November last year, the court gave FLS time until February 2008 to find counsel.

“However when the matter was called yesterday (Monday), the FLS still had not been able to arrange for counsel even after three months. The Court has informed the FLS that should it not be able to arrange counsel and finalise relevant papers, the matter will be struck out on 3 March 2008,” Sayed-Khaiyum said.

Recent media report highlighted Fa complaining he was not invited to JSC meetings and was not consulted on appointment of judges. “When the Acting Chief Justice read this statement in the media he hastened to write a letter to Mr Fa assuring him that he was welcome to attend JSC meetings.”

Sayed-Khaiyum said Fa responded in a written correspondent on January 25 this year advising acting CJ Anthony Gates that he could attend JSC meetings.

Later, he said Fa told media reports that he would not attend. Sayed-Khaiyum also highlighted the first session of the Court of Appeal to which Justice John Byrne had invited Fa to attend and speak at the opening ceremony.

He said neither Fa nor his vice Laurel Vaurasi attended.“It was a shocking display of discourtesy.”

“When faxed with this conduct, Fa said he had made arrangements for representation by FLS and did not know what had occurred. And that he would find out. Within 24 hours or so his story changed. He said that he did not recognise judges of the Court of Appeal. He said that they were illegal,” Sayed-Khaiyum said.

“These changes in his position reflect very poorly on the legal profession as a whole. Lawyers continue to represent their clients’ interests before the judges of our courts.”

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