"Madam Speaker, I move that this Parliament thank His Excellency the President for His most gracious speech. It is a great honour for me to make my maiden speech as Prime Minister in this Parliament, having led the Fiji First movement to Victory in last month’s General Election.
Talking about victory, I wish to formally congratulate our Rugby Seven’s Team for their magnificent victory over Samoa last night to win in the Gold Coast Seven in the IRB World Cup Series. Well done men and Ben Ryan, you have done Fiji proud. Your victory was the icing on the cake after the successful launch of Parliament last week and the Fiji Day Celebrations.
Madam Speaker, allow me to congratulate you on your election as Speaker. The fact that you are the first woman’s Speaker of any Parliament in Fiji or any Parliament in the Pacific Islands is a huge personal achievement. But it is also highly symbolic, a milestone in the history of our nation and the advancement of Fijian women for equal rights and opportunities.
Your speech of acceptance last week was a wonderful moment because as you lightly pointed out, the fact that you have assumed this high office will undoubtedly encourage other Fijian women to consider careers in politics. I am sure that all the honourable Members of this House join me in wishing you every success in the role of Speaker. You can be sure of Government’s full cooperation in this Chamber and the conduct of the Parliament’s affairs.
Madam Speaker, I am also sure that every Member of this House will agree with me when I say that are our two days in the Chamber last week were unforgettable. We have launched our new democracy with dignity and with style. As His Excellency the President reminded us, our ultimate duties as Members of Parliament is to the people who sent us here. And I know from the feedback I have been receiving that what they saw here filled them with pride and optimism for our future.
As the President also reminded us, this is the Chamber that has seen some of the greatest movements in our history and also some of the worst. There are merciful a few Parliaments in the world where shots have been fired into the ceiling yet that is what happen here on 14th May, 1987 during the first coup.
I think we all share the President’s view that there is something deeply symbolic about having brought history full circle by returning to this Chamber. Let us all dissolve to draw a line under the past and work together to achieve the future we all know awaits us if we put our nation first.
I want to pay a special tribute to those who have worked so hard over the past few months to carry out the refurbishment of this Chamber and the rest of the Parliamentary complex. The architects the designers, contractors and the many men and women who worked day and night to complete the project on time and to such a high standard, it is a wonderful achievement in to all of you, I extend the nation’s thanks.
Madam Speaker much of my Government’s legislative programme for the coming season was outlined by His Excellency the President in his speech opening the 2014 Parliament. There are many more details to come in the 2015 Budget next month. But as the President’s signalled one of our main priorities will be to provide more assistance to Fijians who are disadvantaged. I personally feel very strongly that we must not rest as a Government or a nation while any Fijian is marginalised. That is why – along with our programme to improve our infrastructure – we have poked so much emphasis assisting ordinary Fijians and families who are disadvantaged.
I have said before that my proudest achievement in Government has been to free struggling families from the worry of having to pay for their children’s education because in my own life, I have witnessed the heartbreak of many ordinary Fijians in not being able to meet the cost of school fees. Heartbreaking because we have always known that education is the key to breaking the cycle of poverty and not getting a proper education has condemned successive generations to lives of menial work, meagre incomes, drudgery and not being able to improve their socio economic status.
When I was growing up, we all knew children who were less fortunate and got left behind through no fault of their own, simply because their parents could not afford to provide for them in the way we were being provided for. If it is the only thing I do in government, then I will be happy knowing that we were able through our free schooling programme to place Fijian children in the much better position than previous generations. I ask all of you in this Chamber to work with me to put our children and young people first; to support those measures that we have planned to improve the lives of our young people, broaden their horizons and open up the world of opportunity that awaits them if we join hands to give them the “leg-up” that they deserve.
Madam Speaker, if everyone in this Parliament ask themselves the question; “Will this be good for our young people?” and the answer is “yes”, then let us not allow political differences to get in the way of working together to make that initiative happen. As I have said before, I intend to run an inclusive government, I intend to leave no Fijian behind, so I am extending a sincere invitation to my political opponents, especially the honourable Leader of the Opposition, to work with me to improve the prospects of every Fijian, especially our young people.
By all means, they can and they must critique our policies – that is their role in our parliamentary democracy, just as it is in other countries but do not do it simply for the sake of it. We must all, and I ask them to work with and support all policies that are for the good of the nation. We must all, and I ask them to put the interest of our young people above politics because assisting our youth is the key to developing a stronger and more educated nation; assisting them is an investment in a better Fiji; assisting them means a stable and prosperous Fiji.
Madam Speaker, it is traditionally maiden speeches to thank those who have made an impact on our lives, especially those who have imbued us with the notion of service in public life. First and foremost, I want to pay tribute to my wife, Mary, who has always been a pillar of strength to me and a wise and trusted counsellor. She never dreamt that she would wind up as a politician’s wife but she was a wonderful asset in the recent campaign, and reaching out to ordinary people who got to see us as I have always seen her. I want to thank her for the unwavering love and support, and for always being by my side.
I also want to thank my six children and 14 grandchildren, who provided me with so much joy. They would have caused more joy on the way with number 15. As we all know, there is no substitute for a happy family life and I have been blessed beyond measure.
Today, I also think of my parents, who inbuilt me with the values I hold dear of love, of family, love of community and love of country. I grew up – thanks largely to them and my teachers at Marist Brothers High School, committed to the notion of Fiji as one big multiracial family in which everyone belongs to and everyone deserves equal treatment.
I have always tried to see my fellow citizens through the prism of their own personality and character rather than their ethnic background or religious belief. It does not matter to me who you are or what you believe in, what is important to me is whether you are honest, courageous, compassionate, stand up for what is right, protect the vulnerable and treat the people the way you would like to be treated yourself with consideration and respect.
I passionately believe in one Fiji in which everyone belongs and no one gets left behind, and I passionately believe in being patriotic – putting our nation’s interests before ourselves and defending our unity as a nation against those who wish to divide us, which is why I always want to pay tribute today to my colleagues in the Military. History will eventually make some pronouncements on the events of 2006 but those of us in the Military, who believe passionately in national unity came to the conclusion that the fabric of our nation was unravelling, and that the only radical intervention would enable us to pick up the threads.
We had all gone through the trauma of 2000 and the Mutiny in our ranks that had caused us so much pain. None of us wanted to remove the civilians we had appointed to take our nation forward, but when they appeared that they had precisely the same racists and corrupt agenda as the instigators of 2000, we had no choice. We took the tough decision necessary to keep Fiji united, to prevent large numbers of our people from being relegated to second or third class citizens, to halt the spiralling out of control corruption and elitism and begin the task of reforming our society from the ground up.
Only a radical intervention in 2006 was capable of getting Fiji back on track, of establishing once and for all, the universal democratic principle that all men and women are equal. Before 2006, that was simply not the case in Fiji but now it is, and we have a constitution that not only guarantees genuine equality and genuine democracy, but provides Fijians with a range of unprecedented socio-economic rights. It puts in place institutions that will not only address the issue of systematic corruption but provide unprecedented levels of accountability and transparency in public life and institutions.
I want to thank the Royal Fiji Military Forces (RFMF) for supporting the reform process of carrying out its duty to be the ultimate guarantor of our national security, of holding Fiji together and for the personal support I received as Commander from those around me, those patriots who shared my vision of a united Fiji. It was a great wrench for me to leave the Military earlier this year. Everyone who knows me knows I never wanted to be a politician but I came to realise that I had the duty to lead us forward, to introduce a genuine democracy instead of the pale imitation we had, to lead the fight against corruption, tackle the self-serving elites and offer up a vision of an inclusive nation with fairness and justice for all.
I want to thank all of those who shared that vision, the countless thousands who understood what needed to be done, including those sitting beside me on this side of the House. We share a common love of Fiji and a vision of where we want to take it with the support of the Fijian people.
I especially want to thank those individuals who head our institutions of State for the sacrifices they were prepared to make in the face of criticism, abuse and sanctions. Some of those whom we counted as our friends set out to degrade our standards of governance by targeting and punishing these individuals who accepted positions in the Judiciary, as Ministers and on the Boards of our State-Owned Enterprises. To those of you who withstood vilification and in some cases even death threats, I also extend my warmest thanks. I will never forget your loyalty to our nation, and our cause of building a better Fiji.
I particularly thank the members of our Judiciary – the Judges and Magistrates headed by honourable Chief Justice, Anthony Gates, for being willing to stand up to international condemnation, so that the Fijian people could continue to access to justice. I especially thank those who came from Sri Lanka to join other Judges and Magistrates who stood by our nation when we needed them. Because of these heroes, the genuine rule of law in Fiji prevailed even during the most challenging times, and we owe you all an immense depth of gratitude. We owe an immense debt to the Government and President of Sri Lanka for facilitating their service to Fiji.
I also want to thank our friends in the international community, those nations and individuals who took the trouble to understand that what we were doing was not for ourselves but for the common good and stood by us. Those nations who tried to bring us to heal, to impose their will on us failed. We were made of sterner staff than they appreciated, and instead of complying with their demand that we restore the status quo and resolve nothing, we went out to the world and found new friends. Instead of harming us, they actually made us stronger, so instead of being resentful of these nations, we thank them. Because of them, Fiji actually stands taller in the world than ever before. They tried to get us dispense as UN peacekeepers, but not only did their lobbying failed, we are in more demand than ever before. The recent detention of 45 of our soldiers in Syria showed the world what we have always known ourselves, that when the going gets tough, Fijian troops stay professional, disciplined and courageous.
They can be relied upon when others cannot. And their equally courageous families can be relied on to support them, endure the separation from their loved ones and accept that this is Fiji’s contribution to the world, to being a good, global citizen. To all those families, I also want to say thank you today and convey how much we all value the sacrifices you are making.
Most of all, I want to thank the Fijian people for putting their trust in me at the ballot box last month to move us all forward. The scale of the FijiFirst victory in the Elections surprised a lot of people, certainly those sitting opposite and a large number of diplomats, NGOs and elements of the media. But it did not surprise me.
I have always made it a point to listening to the Fijian people, trying to understand their needs and concerns, respecting their views and doing what I can to assist them. Without being arrogant about it, I have had my finger on the pulse of the nation for the past eight years. I knew what ordinary people really wanted and that was an end to the constant bickering and self interest in public life, the continual jockeying for the par for power and a Government that genuinely serves the people.
Every Fijian of goodwill wants a level playing field in Fiji. They want fairness and justice for all. They want Government to provide them with the tangible things they need to improve their lives. They want a job, or another source of income. They want food on the table. They want their children to get a better education, to have opportunities they never had. They want to get on with their neighbours. They want a freedom to decide their religious beliefs. They want a tolerant society in which their own choices are respected. They want to feel good about their country. They want to be one nation, not a collection of competing tribes, communal groups and interests. They want Fiji to assume its rightful place as the pre-eminent Pacific island nation and a beacon of good governance and hope for our smaller neighbours. And they want to be citizens of the world, for our education revolution to transform the lives of our young people and for Fiji to become known as a clever country.
Madam Speaker, that is the vision that Members on this side of the House offered the Fijian people at this Election and that is what we intend to deliver. And we will work as hard as we can to keep the trust they have placed in us.
Indeed I have told my Ministers and members that we can relent, we cannot take it easy. The people have spoken and our new democracy has been launched and it must translate into very real and tangible benefits for all citizens of our nation. I can assure every Fijian that this is only the beginning. Now that we are united, now that we have a Government that cares and has genuine love and affection for all Fijians, even greater days lie ahead.
May God bless us all. May God bless Fiji. Vinaka vakalevu and I thank you, Madam Speaker."
Fijileaks Editor: We will continue to reproduce archival materials that we believe should be preserved for Fijian history's sake. Many of these written by Victor Lal have been removed from Fiji Sun archives but we believe they should be available to all those interested in the events of 2006, including the turmoil inside the Judiciary and the Fiji Law Society:
On 15 January 2007 the then Interim Attorney-General Aiyaz Khaiyum called Justice Nazhat Shameem saying that he was calling her, as she was the most senior judge of the High Court at the time after the CJ. He advised her that he had a discussion with the then President of the Fiji Law Society Davenesh Sharma about the need to appoint acting CJ. The rest is history. As Victor Lal revealed, based on the secret minutes of the Judicial Services Commission, how Justice Gates came to be appointed as acting Chief Justice, the revelation split the legal fraternity.
March 06, 2007
Justice Betrayed By Anonymous,
Special to Intelligentsiya
Yesterday’s Fiji Sun of 5 March purports to publish extracts of the minutes of the 15 January 2007 meeting of the Judicial Services Commission (“the Commission”) chaired by Justice Nazhat Shameem under Victor Lal’s byline. It was this meeting that appointed Justice Gates as Acting Chief Justice. Assuming for the sake of argument it is an accurate reflection of the proceedings, several issues need to be considered.
It was the first meeting of the Commission since the forced removal on leave of Chief Justice Fatiaki by the military on 2 January 2007. Yet according to these Minutes, Justice Shameem contented herself with dealing with the need to appoint an Acting Chief Justice in the place of Chief Justice Fatiaki. His arbitrary removal some two weeks before appears to have made little impression on her, not to mention its implications for the rule of law and the independence of the judiciary. The only passing reference she makes to the latter is that the next meeting (presumably with the ACJ present), could then decide whether to ask the CJ to return. She appeared more concerned by the need for a temporary replacement than with the illegality of the Chief Justice’s removal.
Justice Shameem justified her convening and chairing of the Commission on the basis of an opinion tendered by one Gerard McCoy QC. Justice Shameem is as familiar with the provisions of the Constitution as any constitutional lawyer. She ought to have known there was no specific provision in the Constitution authorizing her to chair the Commission meeting in the Chief Justice’s absence. The point is that nowhere in the Constitution does it enable the senior substantive Puisne Judge to preside over the Commission in the absence of the Chief Justice. McCoy’s opinion can only have reached that conclusion by either relying on the common law and/or, reading into the Constitution various inferences to achieve a strained result. For Justice Shameem to proceed in reliance on Gerard McCoy’s opinion reflected on her judgment. For she was doing so in the knowledge that her senior colleague had been removed from office by force. Nonetheless, she proceeded undeterred and apparently unconcerned by the aid and comfort she was giving the usurpers, which was sealed with a telephone call to the Interim Attorney-General.
According to these purported Minutes, Justice Shameem was supported by the President of the Fiji Law Society, Devanesh Sharma. If the minutes are to be taken at face value, he apparently never raised the issue of the Chief Justice’s removal by the military. Neither did he see it fit to question the propriety of Justice Shameem’s actions in presiding over the Commission meeting, but readily accepted the McCoy opinion justifying Justice Shameem’s participation. Mr Sharma appeared only too ready to endorse the appointment of either Justices Gates or Shameem as Acting Chief Justice. It did not appear to concern him that this had been precipitated by the actions of the military. That any endorsement of an Acting Chief Justice would amount to collaboration appears to have been lost on him.
The purported Minutes of the Judicial Services Commission meeting of 15 January 2007 make for interesting reading. For someone not aware of the setting, they seem harmless enough. However, it is this context that conveys the enormity of the Commission’s actions.
In one brief moment, before the constitutionality of events post 5 December 2006 had yet to be determined, the senior substantive Puisne Judge and the President of the Law Society agreed to an acting replacement of the illegally suspended Chief Justice, with the concurrence of the invalidly appointed Chairman of the Public Service Commission. With Justice Gates acceptance of the Acting Chief Justiceship, the complicity of some on the bench and at the bar was complete.
"The judges could defend themselves on the necessity ground of jurisdiction. There are occasions in extreme circumstances such as revolution where it is necessary in the interest of public order for a court, sitting to determine the status of a revolutionary government, to override claims that it lacks jurisdiction...It would be interesting to see if Justice Gordon Ward resigns as president of the Fiji Court of Appeal. It will be rank hypocrisy if he did not. He is after all presiding over the Fiji Court of Appeal and not over LAWASIA in Commodore Frank Bainimarama’s post-coup Fiji." - VICTOR LAL
By VICTOR LAL
Fiji Sun, 12 June 2007
The Interim Attorney General Aiyaz Sayed-Khaiyum has called on the President of the Fiji Court of Appeal, Justice Gordon Ward, to resign. In a statement Mr Khaiyum claimed that Justice Ward supported Suva lawyer Graham Leung of Howards, and wrote a letter to LAWASIA questioning as to why its president Mah Weng Kwai, had taken the post of commissioner on at the Fiji Independent Commission Against Corruption.
According to Mr Khaiyum, on May 30, Justice Ward wrote that the events of December 5 was a ‘coup”, that our “President has no power to make laws” and consequently made “judgments about FICAC”. Mr Khaiyum said Justice Ward wrote to LAWASIA on the letterhead of the Court of Appeal questioning as to why Mah had taken the position. Mr Khaiyum did not elaborate on the contents of the letter.
What did Justice Ward write to LAWASIA? A signed copy of Justice Ward’s letter obtained by me confirms Mr Khaiyum’s contention. The letter, written on the Fiji Court of Appeal letterhead, was written on 30 May 2007, and addressed to the Secretary General, LAWASIA, GPO Box 980, Brisbane, Queensland, Australia. The letter was sent by facsimile (No: 0061 7 3222 5850) and addressed to one Ms Neville. Justice Ward wrote in his capacity as President of the Fiji Court of Appeal, and signed it. He also sent a copy to Mr Mah.
He began by claiming that, “The appointment of the President of Lawasia as Commissioner of the Fiji Independent Commission Corruption established by the interim government leaves me with no alternative but to resign my membership of Lawasia”. Justice Ward said he first became a member of LAWASIA some years ago. He supported its consistent promotion of human rights and the rule of law. Justice Ward said he admired the principled stand it was willing to take when the judiciary or legal profession were under attack anywhere in the region. Following the coup in Fiji last December, the same stance was adopted.
Justice Ward asserted: “We were encouraged here to read that Lawasia had strongly condemned the actions of the military in seizing executive power, effectively at gunpoint. It correctly described it as a gross assault on the rule of law, unacceptable in a democratic country. That view was also taken by similar bodies in Fiji and around the world. Lawasia was later reported as having similarly condemned the forced removal of the Chief Justice by military officers. We were further heartened when Lawasia announced it was sending a fact finding mission to Fiji to be led by Mah Weng Kwai.”
But Justice Gordon expresses disappointment with LAWASIA for publishing a large photograph of Commodore Frank Bainimarama and also for effusively praising the current Interim Attorney-General Khaiyum. He informed LAWASIA: “Unfortunately, the initial report after the visit, published in the April edition of Lawasia Update, was insensitive enough to start with a large photograph of the members of the mission with Bainimarama, the man who had headed the removal of the elected Government by the military and who, once he was 'appointed' interim prime minister, retained command of the military, thus ensuring an effective military government, and directed the forced removal of the Chief Justice.
The report then gives effusive thanks to the interim attorney general for his generosity with his time and for the briefing by him on the controversial commission against corruption which the report describes as a "key focus" of the interim government and a "vital process in restoring good governance in Fiji.”.
He informed LAWASIA that he knew from reported comments by Mr Mah himself that his (Mr Mah’s) appointment was first suggested by Mr Khaiyum during that visit when Mr Mah was heading an ostensibly independent fact finding mission. But according to Justice Ward, “Such an approach was inappropriate and suggests that Mr Mah had already taken a view that there was legitimacy in the interim military government despite the repeated claim in the subsequent final report that it deliberately avoided making any such decision”.
Justice Ward also pointed out that Mr Mah is no doubt aware that, under the Fiji Constitution, lawmaking power is vested in Parliament. The President has no power to make laws but Mr Mah’s appointment had been made under such a claimed power.
Justice Ward than proceeds to comment on Captain Esala Teleni, suspended Chief Justice Daniel Fatiaki, and the removal of high ranking civil servants etc: “No doubt he (Mr Mah) was advised that his deputy commissioner in the independent commission is the second in command of the military. Far from “restoring” good governance in Fiji, the interim government has repeatedly used vague and unspecified allegations of corruption as its reason to arbitrarily remove high-ranking civil servants and prominent leaders – frequently in disregard of lawful procedures. The removal of the Chief Justice by the military officers and the absence of any specific charges more than four months later is one of many examples.”
He said he had no doubt that Mr Mah was a highly regarded lawyer in the Asia Pacific region. Justice Ward added that he was sure Mr Mah had the necessary qualifications for the position he had accepted in Fiji. He intended no criticism of Mr Mah personally but the appointment, he claimed, had been well publicized in the newspapers and on radio and television. Justice Ward added: “Whilst reference has been made to his reputation and undoubted experiences, the principal emphasis has been his presidency of LawAsia as suggesting an indication of acceptance in the international community of the validity of the military’s claimed reason for removing Fiji’s elected government.”
Justice Ward than announced that he was resigning from LAWASIA: “This has made it impossible to regard his appointment as a personal matter. I consider his acceptance of it is totally inconsistent with his role as the public face of LawAsia. I regret to say it as having compromised LawAsia’s hitherto deserved reputation to such an extent that I fear my continued membership may be seen as an acquiescence in such a compromise.”
He said he was attending the Hong Kong conference in his capacity as Chief Justice of Tuvalu. “I understand that attendance at the Chief Justice’' conference does not depend on membership of the association. However, I intend still to attend some parts of the principal conference despite my resignation. I shall take no part in Lawasia after that”.
Justice Gordon Ward’s letter once again raises the issue of revolution and the position of the judiciary. While Commodore Bainimarama invoked the Doctrine of Necessity, the judges could defend themselves on the necessity ground of jurisdiction. There are occasions in extreme circumstances such as revolution where it is necessary in the interest of public order for a court, sitting to determine the status of a revolutionary government to override claims that it lacks jurisdiction. This was the approach taken by MacDonald JA and Fieldhouse AJA in the Southern Rhodesian cases of Madzimbamuto in the Appellate Division and Beadle CJ in Ndhlovu. MacDonald said: “The municipal courts, unlike a foreign government, cannot wait upon events. The function of courts of law within a territory is to maintain law and order and to avoid by every possible means anarchy, chaos, or uncertainty and this is an urgent task.”
Fieldsend AJA found that the court could not sit to determine whether the constitution by which it was created had disappeared, and that there could be no “halfway house” between deriving jurisdiction from the 1961 and 1965 Rhodesian Constitutions. Nevertheless, he came to the conclusion that on the grounds of necessity, the court should give effect to certain of the acts of the Ian Smith Government which had declared Unilateral Declaration of Independence from Great Britain. Beadle CJ in Ndhlovu thought that something other than legality required the courts to continue to sit, and that was on “protecting the fabric of society”.
He did not think that to carry on was to be “disloyal” to the 1961 Constitution and thought rather that the judges had been “overtaken by events”. He said the judges should ask the following question: “Is it better to remain and carry on with the peaceful task of protecting the fabric of society and maintaining law and order, or is it better to adhere to the old 1961 Constitution and go along with it.” He was referring to the necessity ground of jurisdiction. In revolutionary situations the courts must carry on, to “protect the fabric of society”, instead of quietly attempting to bring down the revolutionary government.
It seems that Justice Ward has jumped the legal gun even before the test cases have come before the High Court and the Fiji Court of Appeal. The words of the great English judge Lord Denning seems to have deserted him: “For all judges on extra judicial issues, silence is the best option.” It would be interesting to see if Justice Gordon Ward resigns as president of the Fiji Court of Appeal. It will be rank hypocrisy if he did not. He is after all presiding over the Fiji Court of Appeal and not over LAWASIA in Commodore Frank Bainimarama’s post-coup Fiji.
By VICTOR LAL
Fiji Sun, 15 December 2006
The president of the Fiji Law Society, Devanesh Sharma, has suspended military lawyers and is demanding to know what help, if any, they gave to Commodore Frank Bainimarama when he took over the Laisenia Qarase government on December 5.
He says these lawyers risk losing their practising certificates if they do not give a satisfactory explanation. He says the lawyers failed to uphold the law because in the opinion of the society, the coup is illegal.
Interestingly, the overthrown Prime Minister Qarase, shortly before he was deposed, questioned why the society was silent on the recent developments and was not speaking out with one voice, including their overseas counterparts. Sadly, when the former president of the society, Graham Leung, called on Mr Qarase in May 2005 to abandon the Reconciliation and Unity Bill because it posed a serious threat to the rule of law, undermined the independence of the judiciary, and was perhaps unconstitutional, Mr Qarase refused to listen.
Also, when the society called upon Mr Qarase to abide by the Court of Appeal decision and hand over power to Mahendra Chaudhry in 2001, Mr Qarase simply ignored the court ruling or the call from the legal fraternity.
Mr Sharma's actions against the military lawyers, however, raise some very fundamental and disturbing questions: what role should a lawyer play in society or to what extent must he or she provide legal advice to an institution to which he or she belongs; and why should there be two laws, one for fat pay lawyers in private practice and one for military lawyers?
Unlike the private lawyers, both civilian and military laws govern the military lawyers like their foot soldier colleagues. However, as part of their employment, they were required by military law to tender legal advice to their military boss, the Commodore on the Doctrine of Necessity. It was up to the Commodore, who to some extent was the author of the creation of the necessity, to accept or reject their advice.
Mr Sharma also alleges that some members of the legal profession outside the military are heavily involved in giving legal advice, doing research and writing speeches supporting the military. Who are they? Can he provide names? If the Commodore's actions (based on legal advice from his or outside lawyers) are illegal, than surely it could be challenged in a court of law by none other than Mr Sharma who has a history of defending those accused of coup and mutiny related cases.
Mr Sharma was part of the legal team that defended Mr Rabuka who [on December 10] was acquitted after a split verdict (guilty and not guilty) on two counts of inciting mutiny against the Commodore at the Queen Elizabeth Barracks in July and November of 2000. What difference does it make if one military lawyer, in the course of his duty, has tendered legal advice that might have resulted in the recent coup, and another private lawyer has no hesitation or conscience to defend the Father of Coups in the country - Mr Rabuka - who accepts that he committed treason in 1987 when he executed two coups against the democratically elected Bavadra government because "There Was No Other Way."
Moreover, it was none other than Mr Rabuka who emasculated the judiciary by jailing outspoken judges (like Justice Kishore Govind) and expelling from the Bench overseas judges from Fiji. Mr Rabuka ruled the country through the notorious Decree 12, which allowed for arbitrary detention in such a way as to deny recourse to habeas corpus rights and other forms of appeal.
The judiciary was entirely re-shuffled consonant with the new concept of Taukei justice. And the 1970 Constitution was torn to shreds.
What about the events of 2000? The ousted Attorney-General, Qoriniasi Bale, who was allegedly involved with Mr Rabuka in the 1987 coups, was the principal defendant in the Chandrika Prasad case on the 1997 Constitution. He was part of the Interim Civilian Government following George Speight's failed 2000 coup, and under his legal jurisdiction the ICG issued 30 decrees between July 17 and the end of 2000 and a further four decrees in 2001 to January 12.
He, along with the ousted Prime Minister, refused to hand over power to the Peoples Coalition Government of Mahendra Chaudhry despite the Fiji Court of Appeal ruling, and following the two successive general elections remained as AG until Commodore Bainimarama ousted him recently.
I would be very interested to know if the society directed all its members, including Mr Sharma, not to have any dealings or contacts with the ousted and un-elected Attorney-General who had colluded with Commodore Bainimarama and others in the drafting of decrees following the illegal seizure of power by George Speight and his shadowy characters. These characters were exposed as the former Vice-President Ratu Jope Seniloli, Deputy Speaker Ratu Rakuita Vakalalabure and others. They were also charged with taking treasonous oaths of office to serve in a rebel government under George Speight at a time when the legitimate Head of State, the late Ratu Sir Kamisese Mara, was struggling to prevent the nation from descending into chaos.
Both were jailed for lengthy terms by Justice Shameem, only to be released on dubious grounds by Mr Bale to serve their prison terms extramurally. In Ratu Jope's case, he was out in three months on controversial medical grounds. The release of these convicts had angered the Commodore, and may have been a part of his list of reasons to launch the so-called 'clean up campaign'.
The Miliatry took an extraordinary step by issuing a public statement against Ratu Jope's release. Captain Neumi Leweni called the early release "an insult to our sense of justice and the rule of law" and a "riot" He and other senior military personnel said they believed the release of Ratu Jope was a political ploy to gain the support of "the same type of people who gathered in droves at the parliamentary complex in 2000" - a reference to the supporters of the coup.
The officers predicted that if Mr Bale was not reined in quickly, there could be "a return to the mayhem of 2000" The military argued that that Ratu Jope's release threatened national security .
The decision to release Ratu Jope on CSO was based on merit and the medical report, Mr Bale claimed. He said Ratu Jope's medical condition was confidential between him and the doctors and should not be disclosed without their consent. This, he said, was the law. The former Leader of Opposition, Mick Beddoes, wanted the names of the doctors who advised the release of Ratu Jope disclosed. He also called on Mr Bale to disclose the illness. He said people had a right to know the truth because "they may conclude that Ratu Jope's resignation and subsequent decision not to contest his guilt was a trade off for his release".
Mr Bale maintained he could not divulge details citing patient-doctor confidentiality.
If that is the case concerning Ratu Jope, one may ask Mr Sharma why should the military lawyers be forced by the society to disclose what advice, if any, they tendered to their military boss in the course of their duty as legal advisers to the military. Maybe, the Commodore should see if he can "clear the truth" about the medical record.
In any event, it was only recently that Justice Jiten Singh delivered judgment in a legal action brought by the Citizens' Constitutional Forum to challenge the release of Ratu Jope from prison in November 2004 under the CSO by Mr Bale. Justice Singh's decision upheld the CCF's challenge on the ground of bias or perceived bias, because, in the judge's words, "an informed observer would have serious misgivings about the impartiality of the first respondent (the Minister) in granting the CSO to the second respondent (Ratu Jope)"
The CCF sought an order of certiorari to quash Mr Bale's decision. Justice Singh did find that the CSO was flawed but did not order the CSO for Ratu Jope be quashed.
Both Ratu Jope and the ousted State are appealing against Judge Jiten Singh's ruling. Mr Sharma represents Ratu Jope. Will Ratu Jope return the pay he (Ratu Jope) received during the trial, and continues to receive a pension equivalent to 30 per cent of his Vice-Presidential salary, despite being caught on video camera swearing-in- Speight's Cabinet Ministers? Will those in the Great Council of Chiefs, who appointed Ratu Jope as Vice-President, and those MPs who elected Mr Vakalalabure as Deputy Speaker after the 2000 crisis also be hauled before the courts for aiding treasonists?
Meanwhile, the Great Council of Chiefs has joined Mr Sharma in condemning the military lawyers.
For God's sake, stop the hypocrisy. Where was the GCC, which strictly speaking, is not exclusively made up of chiefs but also of commoners, when its own legal adviser, Mr Bale, was discarding the rule of law with impunity, and was also suspended for five years from the Fiji Law Society for misusing trust funds?
Finally, Mr Sharma also represents Lieutenant-Colonel Jone Baledrokadroka, the Commodore's former second-in-command, who is facing a mutiny inquiry for allegedly confronting the Commodore about his (Commodore's) anti-government statements before the takeover of the Qarase government. Is there not a conflict of interest in his demands - of actual or perceived bias in his treatment of the military lawyers?
It is equally legitimate to ask Mr Sharma what right does he have to defend those implicated in the 1987 and 2000 coups, and to ensure that they are acquitted as charged, and in the next breath to demand from the military lawyers what advice, if any, did they tender to the Commodore in the takeover of government, which comprised Mr Bale, who himself had been no respecter of law as Minister of Justice?
The suspension is also a breach of the military lawyers rights under the Bill of Rights in the Constitution .
The law is meant to be blind. Why should there be two laws: one for private lawyers and one for military or government lawyers when it comes to questions of legality and illegality in Fiji?
It is time, to use a lawyer's phrase, Mr Sharma recused himself from lecturing to the military lawyers or to other lawyers who have tendered legal advice to the Commodore or will continue to do so in the future. The "clean up" begins with him
Fijileaks Editor: Stung by the criticism, Sharma had sent in the following in January 2007, demanding Fiji Sun apologize but as one High Court Judge wrote to Victor Lal, 'You have written the truth, how can that be wrong'.
Sharma to Fiji Sun:
The article published is factually incorrect, based on a contumelious disreagrd of the role and strcutre of
the FLS and is clearely grossly defamatory of me in my personal capacity as a barrister and solictor and an
officer of the Court and in my capacity as President of the FLS;
The article is vindictive and is intended to damage my professional and personal reputation and to cause me
irreparable harm and ignominy in my personal life, my professional career and professional activities;
I have been seriously hurt and embarrased by the publication of the Article; The article complained of in its natural and ordinary meaning contains the following imputations:
1. That I have personally taken action against
2. That I am a hypocrite
3. That I should be removed from the FLS
4. That the actions of the FLS in suspending the
certificates of certain solicitors is at my
instigation and personal directive
5. That as a defence lawyer who has defended persons
charged with offences related to the 2000 George
Speight takeover of parliament, I am tainted and have
a conflict of interest
6 That I have colluded with persons involved with the
events of 2000
7 That I have colluded with and am complicit in
alleged irregular dealings accociated with the release
under CSO of Ratu Jope Seniloli
8 That by being part of the defence team of Sitiveni
Rabuka in Mr Rabuka's recent trial for inciting
mutiny, I have condoned the actions of Mr Rabuka in
the coups of 1987
9 That by acting for Lt-Colonel Jone Baledrokadroka, I
am no longer qualified tothe comment on any actions
of any members of the military, and am biased against
10. That I am unfit person to be President of the FLS
and should be "cleaned up" from the FLS
11. That I have colluded with the GCC
In this article, Lal demonstrates his total inability to comprehend the role of lawyers and the law.
In particular Lal demonstrates a fundamental misunderstanding of the distinction between the role of a lawyer defending in a Court of Law those persons charged with offences against the Laws of this country, and the role of lawwyers advising and promoting a person or organisation in the illegal overthrow of a democratically elected Government
As Lal and your paper should be aware, lawyers are Officers of Court bound by rules of ethics and good
conduct. A fundamental component of the ethical standards expected of a lwayer is adherence to the
laws of this country. Lawyers who break the law and commit illegal acts are liable to be disciplined by
The tendering of advice to overthrow, by use of force, a democratically elected government, if such advice is
given by members of the FLS, is sufficient justification for the FLS to conduct an investiagtion into the conduct of these members. Being part of an organisation that commits treason and other serious offences under the Penal Code without showig any respect for the laws of Fiji, or one's oath as a lawyer and an officer of the Court is further reason for the FLS to conduct such an investiagtion
Furthremore, the FLS is a collective decision made by the duly elected Council of the FLS and is not my
individual decision the As a supposedly responsible media organisation it is your responsibility to ensure that such vindictive falsities masquerading as journalism are not published. By publishing Lal's viperous outpourings, the Fiji SUN has participated in the gross defamation
I invite you to publish at the earliest possible date, in a prominent position in your newspaper, an unequivocal apology to me in the following terms:
APOLOGY TO MR DEVANESH SHARMA, PRESIDENT, FIJI LAW SOCIETY:
On 14 December 2006 the Fiji Sun published an article which referred to Mr Devanesh Sharma. The Fiji Sun
unequivocally recognises that the statements it made referring to Mr Sharma were false and without foundation, and that the imputations contained within those statements were false. The Fiji Sun unreservedly apologises
to Mr Sharma for any hurt and embarrassment that the publication of the statements may have caused to him
Notwithstanding that the Fiji Sun may publish an apology in the form requested, I reserve my rights to claim damages and costs by reason of the publication. I put you on notice that your failure or refusal to publish the requested form or apology to me, will be relied upon as conduct aggravating the damages suffered by me because of the offending publication I request your immediate acknowledgement of receipt of
He was told to “hang your head in shame” for comments
By VICTOR LAL
Fiji Sun, January 2008
The former Fiji High Court judge, Justice Roger Coventry, who recently returned to the United Kingdom after terminating his contract, has been accused of writing letters, some with racial overtones, to a top judge, in which he claimed that the Fiji-born judges lacked experience, knowledge, and impartiality.
One of his letters against a recently appointed Australian judge, Justice Jocelyn Scutt, so angered a fellow judge who told him (Justice Coventry) that he should “hang his head in shame for making such a comment about her”. Another letter of Justice Coventry allegedly infuriated one High Court judge so deeply that he was not going “to sit with a racist judge” on the bench.
The top judge to whom one of the letters was written, according to a judicial source, had to calm down the aggrieved judge. Acting Chief Justice Anthony Gates has flatly refused to comment on the allegations against Justice Coventry or the existence of those letters. The Fiji-born judges have also declined to comment, including the aggrieved judge.
However, some of the letters seen by me to various judges suggested that there was a judicial power struggle that had nothing do with the Interim Government. On 4 January 2007, a meeting was held in the Judges’ Common Room in Suva, which was chaired by Justice Gordon Ward, president of the Fiji Court of Appeal. Some judges were absent including Justice Gates, who was out of the country. At this meeting, there was discussion about the absence of the Chief Justice Fatiaki and the legal and constitutional basis for it. On 3 January 2007 he had been asked to go on leave by the military.
The summary of the minutes of the meeting, written down by Justice Ward from memory and circulated to his fellow judges, reveals that it was agreed that, “The Courts should continue to sit and to be administered in the same manner as before the military takeover on 5 December 2006 and the Chief Justice’s agreement to go on leave”. Their duty as judges was to ensure the Courts continued to function for the public. Justice Ward had however expressed concern at the meeting that the military was making orders in relation to the internal administration of justice. Concern was also expressed at the manner of Justice Fatiaki’s removal, with one local judge suggesting that they should state their opinion that this step was unconstitutional and was concerned that a failure to do so could leave the public with the view that the judiciary had accepted it. A consequence of that could be to suggest the judiciary had no independence, he noted.
At the meeting, two Court of Appeal judges discussed possible methods of appointing an Acting Chief Justice, for which they said there was a need. In the course of the meeting Justice Ward suggested that the Judicial Services Commission be bypassed and that if executive power was returned to President Iloilo, it may be possible for him (the President) to make an acting appointment in order to overcome this impasse, and on the basis of a consensus of judges. It was agreed that a further meeting be held to include the absent judges on Monday the 15 January 2007. The meeting ended at 12.30. At 3pm Cdre Bainimarama announced that he had returned executive powers to the President.
On 5 January 2007 the acting Chief Registrar was called to the Military Strategic Command and told that the interim arrangements of the Chief Justice to appoint Justice Ward to administer the judiciary were to be disregarded. Another judge told a fellow judge the next day that the meeting of the judges of 4 January 2007 was in breach of the Memorandum of Understanding agreed to by the High Court judges in 2002, and that in his opinion the judges had learnt nothing from the crisis of 2000. He told his fellow judge that he had spoken to Justices Ward and Winter and had warned them to refrain from expressing any views about the legality or legitimacy of the new political order in Fiji. As a result of the strong views expressed by the judge, there were no further meetings of the judges.
On 7 December, two days after the coup, the then CJ Fatiaki called for a meeting of the High Court judges at the Fijian Hotel, where the judges had been attending a judicial conference since 4 December, to discuss the post-coup situation. It has emerged that Justice Gates had refused to attend the meeting on the ground that there was a real risk that judges would compromise themselves from hearing future constitutional litigation.
On 15 January 2007 the Interim Attorney-General Aiyaz Khaiyum called Justice Nazhat Shameem saying that he was calling her, as she was the most senior judge of the High Court at the time after the CJ. He advised her that he had a discussion with the then President of the Fiji Law Society Davenesh Sharma about the need to appoint acting CJ. The rest is history, as I have pointed out in a previous article, and based on the minutes of the Judicial Services Commission, how Justice Gates came to be appointed in his current position. In any case, as president of the FCA, Justice Ward could not have also constitutionally acted as CJ.
Since Justice Gates appointment, a long running feud seems to have developed, with Justice Coventry having to be reminded by a top judge that it would be disastrous to the judiciary, to the legal system and the national economy if no appointments were made to the judiciary. He was told he belonged to the old school of thought.
According to the judicial source, Justice Coventry was supposed to introduce case management in the civil High Court where judge shopping has been allegedly rampant for years. Case allocation was supposed to be random. But just before the 2006 general elections he allegedly told his fellow judges that he would hear all election petitions and he wanted them to tell him how to handle the cases. This was one month before the general elections.
According to the judicial source, some of the judges allegedly told Justice Coventry that, firstly, he had to hear from counsel before he could decide anything and, secondly, how did he know that he was going to get all the election cases if case allocation was random. He allegedly did not respond to them. Then after the elections, Justice Coventry did get all the election petitions and he dismissed them all on technicalities. “The fact that he was free to write them shows that independence exists in the judiciary, and he was also free to find against the government,” the judicial source noted.
Meanwhile, one of the judges was asked to run the Fiji Court of Appeal but according to the judicial source, Justice Coventry was “furious” as he thought he should have been chosen. According to the source, Justice Coventry then began to write letters to different judges complaining about the use of local judges on the Court, and “mourning the loss of white male judges on the Fiji Court of Appeal”.
According to the source, one of the judges wrote back to Justice Coventry and told him that the FCA would now become more representative of Fiji’s diverse communities, with more women taukei Fijian and Indo-Fijian and Chinese judges because that was what the Constitution required under s134. It was then, according to the judicial source, that Justice Coventry became even more vitriolic and allegedly said that taukei Fijian and Indo-Fijian judges lacked experience, knowledge and impartiality. He was however reminded that all judges of the High Court sat with equal power and jurisdiction.
While experience might lend gravitas, he was told, it did not confer a greater jurisdiction, nor did the lack of judicial experience take back the appointed power. All judges of the High Court, he was told, who were members of the Court of Appeal by reason of their appointments, would be invited to sit on cases in the Court of Appeal. One of the judges was allegedly told by Justice Coventry that he would not agree to his junior writing a separate judgment from him. He was reminded that there was English authority for the need for senior judges that judges who were their juniors could review their decisions.
In particular, Justice Coventry allegedly began to attack Justice Joceyln Scutt who, on 19 November last year, was sworn in before the President, Ratu Josefa Iloilo, as a new puisne judge of the High Court. The sources claim that Justice Coventry asserted that Justice Scutt was inexperienced and should not sit on the FCA, prompting another fellow judge to write to him, saying that his (Justice Coventry’s) sneering reference to her was shameful: “If you had a Curriculum Vitae even remotely approaching that of Justice Scott you should hang your head in shame for making such a comment about her. Unfortunately I cannot see you doing that.” But Justice Coventry still did not accept it, according to the source, and went on to make himself totally unpopular with his brother and sister judges.
Finally, according to the judicial source, Justice Coventry went to Tonga for one week without allegedly taking leave and had his pay cut. He was “furious”, the source claims about that, although all the judges whether they support the acting CJ or not, seek for leave from him to attend conferences.
In his farewell speech, organized by the Fiji Law Society, Justice Coventry took a swipe at the current state of affairs regarding the Fiji judiciary. He told the legal fraternity that he had terminated his contract, citing various reasons, most emanating out of the events of December 2006. Justice Coventry said Fiji’s immediate future wasn’t rosy, adding the legal system was currently in an unsatisfactory state of affairs. He said lawyers should not accept legality for the sake of expediency or any other reason. He also called upon the lawyers to speak out because judges cannot do so. “Acquiescence is the friend of illegality,” he told them.
In his farewell speech, Justice Coventry however did not touch upon the allegations that have been levelled against him by the judicial source, nor could he be reached for comments regarding the alleged letters he wrote to fellow judges, and that he reportedly wanted to head the Fiji Court of Appeal after the 5 December military takeover.