Lawyers without frontiers: Fiji after the coup

Fiji, a former British colony independent since 1970, has suffered a series of coups d'état in the last 22 years. The first three of these were carried out supposedly in the name of indigenous rights. The latest, the coup of December 2006, however, according to the military commander Frank Bainimarama, was undertaken to rid Fiji of corruption. 'Clean up' was the phrase used.

Over the subsequent 27 months, the country has been governed by an interim administration composed of both military and non-military personnel. An independent commission against corruption was established and a 'Peoples' charter' was drafted by a selection of citizens appointed by the interim regime. This charter was approved and accepted in October 2008 as the guidelines for the way forward for the country. In the same month, a court case brought by the prime minister who was ousted in 2006, Mr Laisenia Qarase, came before the High Court, which ruled in favour of the interim administration, giving the administration official sanction and legality. Mr Qarase appealed and in April 2009 an appeal court upheld the appeal and ruled that the interim administration was illegal. On 10 April, the day after the court ruling was announced, the 1997 Fiji Constitution was abrogated and Public Emergency Regulations were decreed. Frank Bainimarama, having resigned the evening before, took office again as prime minister. The Public Emergency Decree has been renewed each month subsequently.

These emergency regulations give broad immunity to the security forces in case of causing harm or death. A person may be detained for up to ten days without charge; and since 10 April 23 lawyers, journalists, human rights activists and religious leaders are known to have been subject to arbitrary detention for up to 72 hours for exercising their right to peaceful assembly and freedom of expression. The president of the Fiji Law Society, Dorsami Naidu, was detained for 24 hours for assembling outside the Lautoa Court on 14 April. On 20 May the police executed a warrant issued under the emergency regulations to seize computers, files and records from three legal firms where it was alleged that lawyers were 'blogging' against the interim government. During the weekend of 23 May, the chief registrar forcibly entered the offices of the Fiji Law Society and seized solicitor complaint files.

Above the law

A fundamental component of the rule of law is the independence of the judiciary. On 10 April all judicial officers were dismissed, and new ones were appointed and some re-appointed under a different oath of office. Among new members of the judiciary are former military lawyers. The director of public prosecutions, the director of the Legal Aid Commission, and the director of the Fiji Human Rights Commission have all been dismissed since 10 April. On 15 June the chief magistrate, Ajmal Khan, was dismissed and the post remains vacant. The interim government has interfered with court cases, summarily dismissing them by decree and acting in contravention of court decisions. Military and police officers convicted of manslaughter were released in May one month after receiving sentences of four years. The removal of the jurisdiction of the courts to consider the scope of executive or legislative power has put the interim government above the law.

Has the rule of law survived at all? Can lawyers defend the rule of law effectively? The government took away the practising certificate of all lawyers in the country and required them to register with the interim government by 31 May. Effectively this meant that the Fiji Law Society has no role in regulating or disciplining within the profession and has no say in the admission of lawyers or appointment of judges. Unhappy with this situation, but needing to survive, the lawyers of the country have all submitted their applications for registration to the regime, with the exception of two senior lawyers '“ Ratu Joni Madraiwiwi has taken up a position in the Solomon Islands, and Graham Leung, former president of the Fiji Law Society, who is no longer going to practice law in Fiji and is devoting himself to socially oriented work. I met Mr Leung when I visited Fiji. He is known to many lawyers in the UK and the Commonwealth as an outspoken defender of human rights and the rule of law. In 1999 he was appointed the first human rights commissioner of Fiji. He is a council member of the Commonwealth Law Association. At the end of August he wrote to me as follows:

'The rule of law in Fiji is in dire straits. The country is effectively under military dictatorship. An inquiry by the International Bar Association in April this year concluded that the elements in the judiciary had been compromised. There is no reason to think the situation has improved since then. On the contrary, with the abrogation of the Constitution on Good Friday, it is fair to say that things have probably worsened.'

In May a joint letter from the Law Society of England and Wales and the Bar Council was sent to the Fijian government urging it to drop the proposals for the government to take over the role of the Fiji Law Society as licensing authority for lawyers. The letter expressed the concern of lawyers in England and Wales at the dismissal of the entire judiciary in April. The letter continued:

'The Law Society and Bar Council join the call made by the United Nations on 20 April 2009 that the authorities in Fiji restore the rule of law by immediately reinstating the judiciary and ending the restrictions placed on the right to freedom of speech and assembly.'

The UN Special Rapporteur on the independence of judges and lawyers, Mr Leandro Despouy, has requested that the interim government of Fiji allow him to undertake an official visit to the country. Despite the request made in June 2008, no response has been received.

Military dictatorship

Fiji is now coming to terms with living under what is to all intents and purposes a military dictatorship. There is no room for dissent or even mild criticism of the regime and its actions.

Police permission is required to hold public meetings and there can be delays in the granting of approval and even revocation of approval already granted. This was the case with the Annual Accountants Congress held in June this year. The congress is the premier meeting of business and accounting professionals held over three days annually. Application was duly made six weeks prior to the function with details of all speakers and topics. Permission was granted a month later. However, four days before the event, the police demanded that two speakers and one panellist be removed from the programme and the remaining speeches be handed in to the police within 24 hours. This was impossible. Speakers had been asked to come with their soft copies, and some were from overseas. This was explained in a letter to the police and the first section of the programme that contained the 'offending' speakers was cancelled. There was no response from the police until 9am on the morning before the congress was due to commence, when the message came that it was not to go ahead. Three hundred and fifty delegates had to be notified, not so easy with few hours to spare. Meanwhile, some pleading was being done by senior accountants who met with the police authorities, and around noon the earlier decision was reversed. The organisers still had to hand in copies of all the speeches by 8pm. Eventually the congress went ahead minus its first morning's programme. One of the two speakers banned from addressing the conference was Graham Leung.

Since then it has become increasingly difficult to hold meetings of any sort. Police have interrupted innocent regular gatherings and taken the people involved for questioning overnight. The Methodist Church in Fiji, the largest Christian Church in the country, holds an annual conference each August combined with a grand choir competition. At the conference all decisions regarding staff movements are made and the annual collected funds from every district are handed in with ceremony. Since 1987 the Church has been involved in politics. Two of its senior ministers have been outspoken nationalists, though the present leadership is pursuing a quieter and more open role. The military commander forbade the Church to hold its conference unless it removed the two senior ministers. The Church rightly said they are not permitted to do that as only the conference can. Huge numbers from all over the country congregate for the conference and the hosting district prepares for many months to cater for the influx; the commander's order caused deep disappointment for them and for those looking forward to the choir competition. In the first week of 11 August, Methodist Church leaders or members were detained and some were charged under the Public Emergency Decree. On 5 September television news in Fiji announced that the annual conference of the Fiji Law Society has been cancelled.

A return to democracy?

In the first week of July, Commander Bainimarama presented his 'roadmap' back to democracy. It spells out a pipe dream of developments leading to democratic elections in 2014. The time frame is unacceptable to Fiji civil society and the fact remains that the overthrow of an elected government is illegal, not to mention the abrogation of the Constitution on 10 April.

Meanwhile, there are efforts being made by civil society to commence dialogue within all levels of society and hopefully between the regime and politicians. The Commonwealth Ministerial Action Group is demanding a commitment to elections within one year. Bainimarama is unlikely to change his 'roadmap'. Australia and New Zealand are still maintaining their strong stance against the regime. On 1 September Fiji was expelled from the Commonwealth having failed to comply with the deadline set for commitment to elections next year.

There is no prospect of an easing of the restrictions on the freedom of speech or assembly, nor the attack of the independence of the judiciary and the legal profession. It is a matter of grave concern for defenders of the rule of law in all parts of the world that Fiji is unlikely to return to democracy in the near future.