BILL NO.2 OF 2021 (ABOLITION OF ASSESSORS)

The abolition of assessors also provoked a strong response from the Fiji Law Society. In its open letter to the AG and members of parliament, the Society described it as “a profound change in, and the dismantling of, a key part of the administration of criminal justice in Fiji”. Assessors, it said “are a fundamental protection of an accused person’s right to a fair trial”.

“Removing public participation from criminal justice will reduce transparency and erode public confidence. Leaving the question of guilt or innocence in serious cases to a single judge, without an accused having a choice in the matter, is neither fair nor just”, it said.

While for any member of the community, the aforementioned statement is deeply concerning, it sent the AG into a rage. And on the margins of the parliament, he attacked the Law Society as a group of individual lawyers working in league with the opposition, even though the new President of the Law Society, Wylie Clark, has no overt political affiliation – so far as I know – and no record of partisan political statements. Unsurprisingly, a counter argument in relation to the issue of corruption courts came in the form of a public statement from FICAC. There is no way of knowing whether FICAC was instructed to issue that statement or took it upon itself to enter the political fray. But the mere fact that it said anything at all has reinforced concerns about its independence because this is a debate in which the Acting Chief Justice, Kamal Kumar, and the Director of Public Prosecutions, Christopher Pryde, have been noticeably absent. 

25 years ago, in 1994, a Commission of Enquiry on the Fiji Courts was set up by the government of the then prime minister, Sitiveni Rabuka. It was headed by a distinguished Australian-born New Zealand judge, Sir David Beattie, who had been Governor-General of New Zealand. After extensive consultations with the legal profession and other interested parties, the Beattie Report recommended that the assessor system should be retained. Yet in a matter of hours last week, something that had been a key part of the administration of justice in Fiji since the 19th century – was abolished unilaterally by Aiyaz Sayed-Khaiyum. 

Fast forward 25 years later and we know what the current DPP, Christopher Pryde, thinks from a speech he gave to the annual AG’s Conference in December 2017. A link to the address is still on the DPP’s website. In front of both the AG and the Prime Minister, Mr Pryde concluded that “Fiji’s assessor system has operated well for 125 years and should continue to do so. It is cost effective, it guards against elitism, it keeps the community engaged and it promotes democracy”. As unambiguous as it gets. So was the DPP consulted before the unilateral abolition of the assessor system? Was the Acting Chief Justice consulted? These are questions the public is entitled to know. Because an independent prosecution arm and an independent judiciary are cornerstones of our democracy. And while the Attorney General may have the numbers in the parliament to mess with our institutions, he has no right to impose his will unilaterally with the support of the Prime Minister. For me, it is the final straw, the final break with the Bainimarama government in which I have now lost all confidence.  

Dr. Rajni Kaushal Chand is the new Director for CFL for the next 3 years (2021 – 2023).  She has been with USP for over 25 years as a student, teacher, researcher and course coordinator. She has travelled extensively in the USP region and internationally and has in-depth knowledge on Open and Distance Learning (ODL) for small and  developing South Pacific regional countries. She has presented her research findings at various international ODL, Applied Linguistics and Indian Diaspora conferences.  Dr. Rajni Chand has also worked in the course development and editing sections for USP’s Distance Learning section.

Dr. Rajni Chand holds a PhD in Applied Linguistics from the University of Otago. She received a position in the Commonwealth of Learning (COL) Women and Leadership in ODL training program and has recently been appointed a mentor in the COL’s CommonwealthWiseWomen mentoring programme. She is also the chairperson of Board of Trustees for femLinkPacific; a major regional feminist media NGO.

Books Chapters:

• Chand, R. (2020). “It rains a lot here”: Online assessments versus Mother Nature”, in Naidu, S and Narayan, S (Eds) Teaching and learning with technology: pushing boundaries and breaking down walls, https://orep.usp.ac.fj/edu-sharing/components/render/c343e6ae-5db6-4eff-a54a-a8d7ea43b970, USP: Suva.
  

• Chand, R. (2020). “Under the shadow of Girmit era”, in Amba Pande (ed) Women in the Indian Diaspora: Historical narratives and contemporary challenges, Springer Science+ Business Media: Singapore. 
  

• Chand, R. (2008).  Media for Language and Education in the Pacific Islands. In B. Prasad and S. Singh (Eds.). Media and Development: Issues and Challenges in the Pacific Islands (pp. 232-269). Fiji Institute of Applied Studies and Auckland University of Technology.
  

• Rao, C.; McPherson, K.; Chand, R. and Khan, V. (2003). “Assessing the impact of IELTS preparation programs on candidates’ performance on the General Training reading and writing test modules”, Cambridge: University of Cambridge, British Council and IDP Australia, Volume 5, October.

Books:

• Chand, R. (2009), A student’s guide to bibliography and referencing, Pacific Educational Resources, Lautoka.
  
• Chand, R. and Khan, V. (2004). Referencing and Bibliography Writing: A guide for university students, Suva: USP.
  

Journal Articles:

• Chand, R. (2014) “Access to information: questions on equality, gender and geographical gap in relation to suicide prevention”, Journal of Pacific Studies, Vol. 35, Special issue.
  
• Chand, R. (2012). Key challenges and opportunities facing the Community radio sector in the Pacific Island Countries, FemLINKPACIFICEMegazine  Special Edition: The Thirteen 25 Report (November 2012 – February 2013 Edition), pp 17-19.
  
• Chand, R. (2011) English use among South Pacific Islanders at The University of the South Pacific, SEDI Journal, Vol 15 (2), pp 73-90.
  
• Chand, R. (2007) Same size does not fit all: Insights from research on listening skills at The University of the South Pacific (USP). International Research and Reflection in Open and Distance Learning Journal (IRRODL), Vol. 8(3). http://www.irrodl.org/index.php/irrodl/article/view/383/951
  
• Chand, R. (2014) “Access to information: questions on equality, gender and geographical gap in relation to suicide prevention”, Journal of Pacific Studies, Vol. 35, Special issue.

Unpublished PhD Thesis:

• Chand, R. (2008) Listening needs of distance learners: A case study of EAP learners at The University of the South Pacific.  University of Otago.

Conferences:

• Rethinking Strategies: Online tests and exams, paper presented at USP’s CFL webinar series, 13 May, 2020 Suva, Fiji.
  
• Indian Diasporic Identity: Language policies or politicizing languages, paper presented at Banaras Hindu University conference titled: People of Indian Ancestry and Indian Culture: Historic and Contemporary Contexts, 19-20 January, 2019 Varanasi, India.  
  
• Girmit in literature texts in Fiji schools, paper presented at Commemoration of Centennial of Abolition of Indian Indentureship: An international conference, 22-24 March, 2017 Lautoka, Fiji.   
  
• Multilingual or Multidimensional: The case of teaching English across 5 time zones and 12 countries, paper presented at ALLA/ALANZ/ALTAANZ conference, 30th Nov - 2nd Dec, 2015 Adelaide, Australia.

• Women in the Indian Diaspora: Issues of Discrimination and Empowerment: Women in Fiji Islands, 10-11 January, 2014 New Delhi, India.
  
• Access to information: questions on equality gender and geographical gap, paper presented at Oceania Development Network Biennial Conference, 11-12, September, 2013 Suva, Fiji.
  
• Transformative pedagogies:  Crossing boundaries in teaching English language, Paper presented at VC’s Forum on Learning and teaching University of the South Pacific, 3 October, 2013 Suva, Fiji.
  
• Research skills development framework: UU114 and the RSD, paper presented at VC’s forum on Learning and Teaching, University of the South Pacific, 11 September, 2012 Suva, Fiji.
  
• Language and Literacy: Case Study of Practice across 300 million square kilometres and a Dozen Countries. Paper presented at the 2nd combined conference of ALAA and ALANZ, 29TH Nov- 2ND December 2011, Canberra, Australia.
  
• Learning outcomes from a generic course to specific disciplines: Lessons from UU114, paper presented at VC’s forum on Learning and Teaching, University of the South Pacific, 22 September 2011, Suva, Fiji.
  
• Disaster Response & Preparedness: Analysis and overview of contributions on the role of community radio in disaster management and Preparedness” case study of femLinkPacific’s suitcase radio. Paper presented: AMARC (World Community Broadcasters organisation) Conference, 8-13 November, 2010, La Plata, Argentina.
  
• Teaching across the Curriculum: Focus on Climate Change, Paper presented at Oceanic Conference on Creativity and Climate Change at the University of the South Pacific:  17th September, 2010, Suva, Fiji.   
  
• Language Issues in English-medium Universities: Case of ESL learners at a regional South Pacific university”, Paper presented at Language Issues in English-medium Universities; A global Concern Conference at University of Hong Kong, 18-20 June, 2008 Honk Kong.C
  

From USPSA:
While we are on nepotism and corruption, here are other promotions that have gone unnoticed in the past 15 years:
1. Bainimarama’s brother who was moved from Assistant Roko to Permanent Secretary
2. Bainimarama’s brother who was promoted to an Ambassador
3. Bainimarama’s daughter who was appointed as CEO of the Fiji Sports Council. Also the current chair of FHL Properties.
4. Bainimarama’s daughter who is the President of Fiji Netball. Used to be the manager.
5. Bainimarama’s daughter appointed to a senior position in the Ministry of Civil Service
6. Bainimarama’s sister-in-law who went from some officer in the FAB Scholarships section to Director iTaukei Language and Culture at Ministry of iTaukei Affairs (where her husband is PS, see 1)
6. Bainimarama’s brother-in-law who ironically went to jail for manslaughter then becomes the Commissioner of Prisons. He was also the Chair of Fiji Rugby until he was pressured to resign last year by World Rugby for letting convicted rapists play provincial rugby.
7. Bainimarama’s nephew who found a job at the Department of Information after the 2006 coup. Currently a senior diplomat at Fiji’s UN mission in New York.
8. Bainimarama’s son-in-law, Development Manager at Fiji Rugby Union.
9. Bainimarama’s sister-in-laws husband is the Director Force Development at Republic of Fiji Military Forces.

By GRAHAM DAVIS

Three weeks ago, I wrote on Facebook that the resumption of Grubsheet for 2021 was being postponed out of consideration for the national effort to assist the victims of Cyclone Yasa and Cyclone Ana. I made the observation that it was not the time for politics but for supporting the authorities to get help to those who needed it most. The inspiring sight of the estimable Inia Seruiratu leading the cyclone relief effort in the north with the help of the equally inspiring Australian servicemen and women from HMAS Adelaide was regrettably short lived. Because it didn’t take long in the public consciousness for politics as usual to rear its ugly head. So much so that I no longer feel bound by my decision of three weeks ago. I apologise that this article is so political and – at more than 6000 words – is so long, indeed the longest I have ever written in these columns. But it is my last one for some time and I have a lot to say. I also apologise that it is so personal, some might say self-indulgently so. But I have a lot to get off my chest. We have just had a parliamentary session dominated by almost everything other than the needs of cyclone victims or the hundreds of thousands of people suffering because of the Covid-induced economic crisis. It was a spectacle that has triggered widespread community dismay and resentment at the apparent lack of empathy of fat-cat MPs and especially those on the FijiFirst government benches. Much of the nation that isn’t on the public teat is in deep distress. Yet as they struggle to find shelter, put food on the table, worry about disease outbreaks, cope with chronic interruptions to their power and water and make their way through Mumbai-style traffic jams over canyon-sized potholes, they find the public discourse dominated not by their concerns and challenges but the same old political valavala (fighting) and point scoring.

What did a weary nation make of the sight of impeccably-dressed MPs trading barbs and insults, the Speaker boasting about his unique ability to do his job and their elected representatives leaving the chamber laughing and joking with each other in the face of their collective suffering? No-one ever asks them, of course. Yet one thing is certain. A reckoning looms at the ballot box come election time. There’s an ever-yawning gulf between the haves and have-nots in Fiji – those living on government borrowings and those with no means of support. The government policy of “assisting” Fijians by allowing them to draw on their retirement savings – one of the most cynical exercises in spin I have ever witnessed – means that some 60,000 Fijians and counting now have zero balances in their FNPF accounts. Another crisis is already in the making – vast numbers of retirees with no means of support. 

Yet there’s something just as disheartening that poses an equally serious threat to social cohesion and national unity. In my many years observing Fijian politics, I have never witnessed such a disconnect between the political elite and their struggling constituents. There has been no concession at all to appearances, let alone the substance of relative privilege. The political elite continue to speed around in their blacked-out Prados, trailed by their attendants and security guards, attending all manner of functions at which the food and drink is plentiful and fawning is invariably the currency of maintaining favour and influence. While outside on the streets, the burgeoning ranks of prostitutes and beggars – including children pleading for food – bears testament to the other face of Fiji. Unadulterated, pitiful despair. Away from the capital, increasing destitution, hunger and homelessness reflect a society that no longer seems to care or certainly doesn’t care enough. The only genuine Bula Bubble in Fiji is the one inhabited by the political and social elite. For much of the rest of the population, the bubble burst a long time ago.

It could and should have been a time when the government forged a national program of collective resilience – a back-to-basics grassroots movement led by the state in which shelter, food production and public health became the sole priorities. Instead, the government can’t even keep the power and water on, is consumed by hubris, obsesses about the unimportant and those charged with enforcing the law engage in all manner of criminal activity. The list of police offences detailed recently – everything from theft and assault to perverting the course of justice – is a sure sign of a nation in big trouble. The AG admitted as the cyclone crisis unfolded that he had only $3.5 million dollars on hand for the relief effort until the foreign cavalry arrived. Astonishingly, while $38million a month is being allocated for aircraft leases and loans, there’s barely enough in the government’s contingent emergency funds to buy a couple of prestige houses in Suva. 

With its obsession with seemingly everything but the immediate needs of ordinary Fijians, the FijiFirst government appears to have almost totally lost the plot. It isn’t just the chronic spin, media manipulation and continual protestations of “no crisis! Nothing to see here!” We now see normally straight-shooting ministers like Jone Usamate obliged to give misleading answers in the parliament. Usamate said Fiji had withdrawn Ratu Inoke Kubuabola as its candidate to lead the PIF out of deference to its Pacific neighbours when the truth is that it was to save the Prime Minister’s face when his handpicked candidate got little or no support. 

Once again last week, Frank Bainimarama read out a speech written for him by Qorvis and the AG praising the AG and expressing his full support for him. Yes, Prime Minister, we know. You will both go down together, maybe not at the same election but sometime. And it has already happened in the estimation of those who once had high expectations of you but whose confidence you have since lost. 

For its part, a cowering media – aside, of course, from the oleaginous flatterers at the CJ Patel Fiji Sun and the AG’s brother’s FBC – is starting to get creative. Creatively subversive. Did you notice that almost every photograph of the Prime Minister in the Fiji Times during the parliamentary sitting had him laughing uproariously with ministers like Faiyaz Koya and others around him? Yes, it’s the image of the local Nero fiddling while Rome burns. Laughing in the face of a nation’s suffering. A big joke.  All up, I can’t recall a more depressing parliamentary week. And if it is to be business as usual in the bear pit of Fijian politics, I certainly no longer feel constrained by sensitivity to resume some serious mauling of my own. So here goes. 

More than eight years ago, in September 2012, I wrote a Grubsheet article entitled “Methodist Church of Intolerance” in which I strongly criticised the church that my late father, the Reverend Peter Davis, once led in Fiji. One of his successors as president of the Methodist Church, the Reverend Tuikilakila Waqairatu, had stridently opposed the notion of Fiji being a secular state – an eventual provision of the 2013 Constitution – and had called for the declaration of a Christian state and for Christianity to have preference over other religions. 

It gave me no pleasure to cast the otherwise distinguished churchman as a bigot. Indeed I wrote that confronting him head-on was “undoubtedly the toughest article I had ever written, and the saddest”. Until today. For however much it pained me to bite the official hand of the church in which I was reared, doing what I am about to do is much more painful. Because I am formally withdrawing my support for Frank Bainimarama and the FijiFirst government. And ending a 15-year relationship with the Prime Minister in which I am widely acknowledged to have played a significant role in assisting him, including in the role of principal communications advisor, speechwriter and advocate, not only in these columns but in the Fijian and international media.

In response to my recent articles echoing calls by the Military Council and members of his own cabinet for the reform of the FijiFirst government and in particular, the removal of Aiyaz Sayed Khaiyum, the PM responded – in statements written for him by Qorvis and the AG – by casting me as a disgruntled and relatively unimportant former employee. I am not in the business of big-noting myself personally in the way that has become customary at senior levels of government and the state. I leave it to others to judge whether I was important or not – though I appear to have been important enough to warrant a formal Prime Ministerial statement, in written and video form, attacking me for my Grubsheet posts that became the lead item in every news outlet in Fiji. 

I fully expected the attempt by the PM to belittle me as a means of trying to blunt my attacks on the AG. It is common knowledge that every word uttered by the PM is written for him by Qorvis and the AG. So that when he speaks – whether it is in the parliament or to a village gathering – it is not Bainimarama speaking but Bainimarama reading out the AG’s script. He is, of course, a good reader and has mastered the TV autocue well enough for many people to believe that it is really him. But it is not. In reality, the PM is like a ventriloquist dummy on the AG’s knee who, unlike other dummies, happens to live and breathe but doesn’t have to think before he speaks. His thinking is done for him. His attack on me was the AG’s creation. And I know that because for six years – with the AG’s approval – I put the words into the PM’s mouth myself. As everyone at senior level knows, Aiyaz Sayed-Khaiyum is the hand in the glove of the Bainimarama government. Which is why so many people loathe him and want him gone. Not only because of the power he wields and the fear he engenders but because he is the lightning rod in the community for growing disenchantment with the government and its increasingly disconnected leader.  

Why this article is so hard and sad for me to write isn’t just the spectacle of the once admired Frank Bainimarama as the AG’s puppet and, increasingly, a figure of derision. It is what has gone before in my own relationship with the PM. Because the record shows that I have publicly sided with Bainimarama since his coup of 2006, continually played advocate for him, went to work as an advisor to his government in 2012 and played a role in all the major events leading to the restoration of parliamentary rule in 2014 – including the tortured passage of the 2013 Constitution. Indeed, I was instrumental in persuading the PM to proceed with the 2014 election when he told me he “was thinking of having a referendum about whether to have an election”, instead of holding the election itself. And I stayed with him well into his second term, writing hundreds of speeches and articles for him, shepherding him through multiple challenges – including in his relationship with the AG – and crafting Fiji’s overall messaging in multiple global forums, including its presidency of the COP23 climate negotiations. I even wrote the State Prayer that opens every parliamentary session on the instruction of the AG one night to “give me a prayer in 15 minutes”. So invoking the blessing of the secular Almighty was also among my duties. I certainly have ample material for a book on the Bainimarama era, though, as we know, it is so far a story without an ending. 

Even as I was publicly attacked by the PM for my recent calls for reform of his government to protect his revolution, I kept faith with the man himself. Respect and friendship are not so easily jettisoned, especially when my late father had asked me before he died to do what I could to assist the Prime Minister. He and the PM’s father had been close friends in Lautoka in the 1960s and my father had described Frank to me as “a good boy” who deserved support in his effort to level the playing field in Fiji. While I was engaged for most of my time in government by Qorvis, I was not the usual hired PR gun, creating a narrative only because I was paid to do so. I was unapologetically a true believer in the Bainimarama revolution to eradicate ethnicity and religion as the defining factors in national life. That commitment predated my engagement in Fiji. Indeed, it was my advocacy for that revolution in these columns before 2012 that drew me to the attention of Qorvis and produced the invitation to join the company on its Fijian account.  

When I did, I dedicated myself with the passion of a true believer to give Frank Bainimarama a voice with speeches that are widely credited with not only his election win in 2014 but establishing him as a regional and global statesman. In the deep divide of Fijian politics, it was not without personal cost to my own reputation. A year ago, the opposition MP, Lenora Qereqeretabua, wondered aloud to me whether I realised how hated I was in Fiji. I knew it but didn’t give it a moment’s thought. It was the cause that mattered, not me.   
  
Yet regrettably I cannot support Frank Bainimarama and his government any longer. And the trigger is last week’s events in the Parliament, the unbridled assault by the AG – with the PM’s blessing – on Fiji’s institutions of state and the removal, without any consultation whatsoever let alone an election mandate, of a mechanism for public participation in the judicial system that has been in place for almost 130 years. The abolition without notice of the assessor system in Fiji’s courts and the setting up a special court for corruption offences separate from the mainstream judiciary – primarily a court to try the government’s opponents – is a gross betrayal of the people who put the FijiFirst government in power in the first place. 

Even if the AG disputes my characterisation of the changes, none of it was put to the Fijian people in the FijiFirst election manifesto for the 2018 election to enable them to reflect on the merits of the policy. None of it was done in consultation with Fiji’s legal profession, other institutions of state or anyone else. It is without doubt, the biggest assault on Fijian democracy since the coup of 2006. And the difference is that while the 2006 coup was to level the playing field and protect the rights of Fiji’s minorities, this was an unashamed exercise in entrenching and protecting the government’s political position. Unforgivable, inexcusable and deserving of absolute censure, including the government’s removal at the first opportunity. Which is what I intend to campaign for from now on. Lest my last statement feed into the PM’s narrative about me being an overwrought, ageing drama queen, let’s examine in detail what happened in the parliament last week. 

The speed with which the AG railroaded through two bills that fundamentally alter the criminal justice system in Fiji sent shock waves through the legal profession, the judiciary, the office of the DPP and anyone in Fiji who believes in the rule of law. His unilateral establishment of a specialised division of the High Court to hear corruption cases has raised grave fears that these will be “kangaroo courts” that give the impression of fairness but are weighted against those who appear before them and will be used against the government’s opponents. And his unilateral abolition of the assessor system in criminal trials ends nearly 130 years of public participation in the verdicts of those trials, leaving them solely in the hands of judges. I repeat: In neither case was there proper debate, no reference to any parliamentary committee and no consultations with the legal profession or the nation’s judges or prosecutors, let alone the public. 

Astonishingly, Aiyaz Sayed-Khaiyum – a “here today, gone tomorrow” politician – simply took it upon himself by bypass the institutions of state that comprise the criminal justice system and use the FijiFirst government’s numbers in the Parliament to pursue a personal preference and his own political agenda. He did so by using the expedited procedure under Order 51 of the Parliamentary Standing Orders to fast track his changes rather than Chapter 7 of the Standing Orders, which would have allowed for a proper process of public consultation. It is one of the most egregious abuses of power by an individual politician in Fijian history. These are fundamental assaults on democracy – in the case of the abolition of assessors – and on human rights and civil liberties – in the case of the corruption courts. Yet when the country’s lawyers had the temerity to question what had happened, the AG rounded on them, accusing them of being politically motivated and in league with the opposition.   

BILL NO 1. OF 2021 (ANTI-CORRUPTION DIVISION)
When the Fiji Law Society said last week that “the proposal to create a “specialised” division of the High Court to consider corruption cases needs careful review”, it reflected widespread apprehension in the profession about how these courts will operate. I have already documented in these columns the sentiment of fear that exists about the Fiji Independent Commission Against Corruption (FICAC) – the shadowy corruption watchdog  that has become a parallel prosecution arm to that of the Director of Public Prosecutions and gives every appearance of being only as independent as the AG tells it to be. This is what I wrote about FICAC last October in my posting “A Tangled Web of Secrecy and Control Part 2”:

“There is evidence that FICAC has, in fact, become something of a personal tonton macoutes for the AG – a Fijian version of the feared special operations unit set up by the Haitian dictator, “Papa Doc” Duvalier, to control his own country in the 1960s. Whereas the DPP only prosecutes after a formal police investigation and solely on the basis of the public interest and whether there is a reasonable chance of securing a conviction, FICAC is both investigator and prosecutor and has none of the same constraints.
There is no judicial or other independent oversight of its operations, nor even the most basic internal oversight for that matter. Since it was established in April 2007 soon after Frank Bainimarama seized power, it has never had a commissioner as the equivalent of chair to oversee its operations and act as a buffer between the FICAC deputy commissioner as CEO and the government. So the deputy commissioner has a great deal of power but little in the way of supervision and accountability. 
The current FICAC Deputy Commissioner is Rashmi Aslam, a Sri Lankan who is obliged by a little-known clause in the 2013 Constitution to report directly to the Attorney General, Aiyaz Sayed-Khaiyum, in a way that doesn’t apply under the Constitution to the DPP. It’s worth citing the relevant section – Section 115, Clause 9 – to understand its importance and how the AG is in a position, with the force of law behind him, to influence the operations of FICAC to the extent of it being genuinely “independent” only in name. “The Commission shall provide regular updates and advice to the Attorney-General on any matter relating to its functions and responsibilities”, reads Clause 9. 
So Rashmi Aslam and the AG have regular meetings that are prescribed under Fiji’s supreme law. Yet this constitutional provision is what is known among lawyers as the classic “reverse clause”.  Because at these meetings, it is also reasonable to assume that as well as being provided with updates and advice, Aiyaz Sayed-Khaiyum is also able to give advice and direction to Rashmi Aslam as FICAC Deputy Commissioner.
All this means that there is no judicial or other independent oversight to prevent the corruption watchdog from being sooled onto the government’s opponents for political purposes.”

At the time I wrote this, I was unaware that formal contact between the AG and FICAC isn’t only provided for under the 2013 Constitution but under the FICAC Act – the law setting up the corruption watchdog. As the Labour Party leader and former Prime Minister, Mahendra Chaudhry, pointed out in an article in last Saturday’s Fiji Times, section 5 (5) permits the Commissioner to “seek the assistance and input of the Attorney General”, which takes the constitutional provision much further. Mr Chaudhry called for the amendment of the FICAC Act to remove this provision, which he rightly said compromises the independence of the Commission.

FICAC has a history of failed prosecutions in the mainstream courts, most notably that against Sitiveni Rabuka, who survived a FICAC prosecution on election funding offences that was widely perceived as an attempt to prevent him from contesting the 2018 election. The case against Rabuka failed in the High Court and failed again on appeal in a dramatic “final hour” ruling by the former Chief Justice, Anthony Gates, that enabled Rabuka to take Frank Bainimarama to the brink of defeat. Would the same thing happen if such a case were referred to a specialist corruption judge? How much influence would the AG have on the selection of such judges? And is what happened in the Rabuka case the underlying motive for him to have railroaded through the changes he has made? These are all legitimate questions that deserve an answer and might have been canvassed in a proper consultation process. Alas, that is not going to happen. The AG has made sure of it. 

BILL NO.2 OF 2021 (ABOLITION OF ASSESSORS)
The abolition of assessors also provoked a strong response from the Fiji Law Society. In its open letter to the AG and members of parliament, the Society described it as “a profound change in, and the dismantling of, a key part of the administration of criminal justice in Fiji”. Assessors, it said “are a fundamental protection of an accused person’s right to a fair trial”. “Removing public participation from criminal justice will reduce transparency and erode public confidence. Leaving the question of guilt or innocence in serious cases to a single judge, without an accused having a choice in the matter, is neither fair nor just”, it said.

While for any member of the community, the aforementioned statement is deeply concerning, it sent the AG into a rage. And on the margins of the parliament, he attacked the Law Society as a group of individual lawyers working in league with the opposition, even though the new President of the Law Society, Wylie Clark, has no overt political affiliation – so far as I know – and no record of partisan political statements. Unsurprisingly, a counter argument in relation to the issue of corruption courts came in the form of a public statement from FICAC. There is no way of knowing whether FICAC was instructed to issue that statement or took it upon itself to enter the political fray. But the mere fact that it said anything at all has reinforced concerns about its independence because this is a debate in which the Acting Chief Justice, Kamal Kumar, and the Director of Public Prosecutions, Christopher Pryde, have been noticeably absent. 

25 years ago, in 1994, a Commission of Enquiry on the Fiji Courts was set up by the government of the then prime minister, Sitiveni Rabuka. It was headed by a distinguished Australian-born New Zealand judge, Sir David Beattie, who had been Governor-General of New Zealand. After extensive consultations with the legal profession and other interested parties, the Beattie Report recommended that the assessor system should be retained. Yet in a matter of hours last week, something that had been a key part of the administration of justice in Fiji since the 19th century – was abolished unilaterally by Aiyaz Sayed-Khaiyum. 

Fast forward 25 years later and we know what the current DPP, Christopher Pryde, thinks from a speech he gave to the annual AG’s Conference in December 2017. A link to the address is still on the DPP’s website. In front of both the AG and the Prime Minister, Mr Pryde concluded that “Fiji’s assessor system has operated well for 125 years and should continue to do so. It is cost effective, it guards against elitism, it keeps the community engaged and it promotes democracy”. As unambiguous as it gets. So was the DPP consulted before the unilateral abolition of the assessor system? Was the Acting Chief Justice consulted? These are questions the public is entitled to know. Because an independent prosecution arm and an independent judiciary are cornerstones of our democracy. And while the Attorney General may have the numbers in the parliament to mess with our institutions, he has no right to impose his will unilaterally with the support of the Prime Minister. For me, it is the final straw, the final break with the Bainimarama government in which I have now lost all confidence.  

So what happens next? I am going away to examine my options and wait to see what emerges in terms of a potential alternative government. As things stand, I am not committed to any particular course of action. Except that I will support any political party that like FijiFirst, embraces the multiracial, multi-faith agenda but unlike FijiFirst is more than a two-man dictatorship, isn’t repressive or prescriptive and genuinely respects pluralism – the notion of different groups, principles and beliefs co-existing in politics and the community. In short, which doesn’t continually treat the opposition as the enemy but recognises its legitimate role to keep the government accountable and honest and works with it for the common good.  Above all, I will support a political party that puts the genuine needs of the people first and respects and defends the independence of the institutions of state, not subverts them as the FijiFirst government has so wilfully and demonstrably done. 

So where are we in terms of a viable alternative to FijiFirst? The short answer is “not there yet”. But a great deal is happening behind the scenes, and especially in relation to Sitiveni Rabuka – the man the Prime Minister refers to as “the Snake”. Having parted ways with SODELPA in December after he lost the leadership to Bill Gavoka – the AG’s father-in-law – Rabuka is said to be working hard behind the scenes to establish his People’s Alliance. It is a potent name for a political party, the “People” part signalling inclusion and “Alliance” not only suggesting bringing together different elements but harking back in the minds of older Fijians to the golden days of the Alliance Party in which Ratu Sir Kamisese Mara presided over a long period of stability and prosperity that in a striking political irony, Rabuka brought to an end with his coup of 1987.  

Grubsheet understands that Rabuka is engaged in discussions with Savenaca Narube – the former Reserve Bank Governor and leader of the Unity Party – to be part of the People’s Alliance and give him the economic credibility he needs in government. Despite the confidence of Bill Gavoka that the SODELPA brand name will carry it and him over the line, there are persistent rumours that up to 15 current SODELPA MPs are ready to jump ship to join the Alliance, including Lynda Tabuya, one of its brightest stars. And Biman Prasad – the leader of the National Federation Party – is evidently telling people that he can happily work with Rabuka if he makes the commitment to abandon the notion of iTaukei supremacy and genuinely embraces a multiracial, multi-faith agenda. 

That is my own condition as well. I am prepared to take Rabuka at his word that he has had a Damascene conversion since 1987 and has come to accept the principle of one nation, with equal rights and opportunity for all. Not everyone will be prepared to accept the sincerity of that conversion. Far from it. The baggage Rabuka carries – his coups and the collapse of the National Bank – would make it nigh on impossible to stage a comeback anywhere else. Yet the notion of forgiveness and redemption is deeply ingrained in the Fijian psyche. And there is one compelling reason why I am personally willing to take Rabuka at his word. That leaving aside the events of 1987 – the rape of democracy and horrific victimisation of non iTaukei – his record subsequently as elected Prime Minister was that he respected the independence of the institutions of state, something that no longer can be said about Frank Bainimarama and Aiyaz Sayed-Khaiyum.
 
Rabuka continues to enjoy a great deal of support in the country and “snake” or not, I am certainly willing to consider the notion that he be given another chance to lead. Or be the principal vote-getter in a party led by someone younger who represents a transition to a new generation. And be available to impart his undoubted knowledge and experience to a People’s Alliance team. Part of me is willing him on to close the circle of his extraordinary political life. But that is largely down to him. He clearly needs to demonstrate more than he has – with inclusive policies and the credibility of the team he builds around him – that he has a competitive vision to take Fiji forward.   

I would never have imagined until last week expressing the view that I have just written in the preceding paragraph. For a long time, many of the Prime Minister’s strongest supporters have hoped – indeed counted on him – to reform FijiFirst to bring some of his more talented ministers to the fore and end the AG’s stranglehold on the party and government policy. It long ago ceased to be Fiji first, as the name was meant to imply. It is the Prime Minister and the AG first. Their way or the highway. And I am far from being the only former supporter who has become convinced that they have not only lost their way but are a clear and present danger to the electoral prospects of their parliamentary colleagues and to genuine democracy in Fiji. 

Internal dissent is invariably conducted in whispers at the present time because of the all- pervasive climate of fear. But it is capable of becoming more voluble whenever, if ever, the election approaches. Because the dominant political instinct is self-preservation and most FijiFirst ministers with their fingers genuinely on the nation’s pulse are already acutely aware that the opposition benches beckon. Will it lead to defections? In the words of the old cliché, only time will tell. There’s already a story doing the rounds that Parveen Bala – the FijiFirst minister who commands a Tamany Hall-style bloc of votes in the West – has approached the National Federation Party seeking a safer refuge. But that may be more to do with his lack of confidence in being endorsed again by FijiFirst because of his own baggage than his lack of confidence in another Party win.  
 
In a country where the Coconut Radio has always been abuzz, more potent rumours abound that the Prime Minister may be about to assume the presidency that is being vacated later in the year by the current President, Major General (Ret’d) Jioji Konrote, and that he plans to install Aiyaz Sayed-Khaiyum as his successor. I have no inside knowledge of whether this is indeed the case. All I can say is that the second part of this rumour would be regarded with genuine alarm in government ranks, the military and in much of the country. It isn’t just that the AG is deeply unpopular and has no hope under the d’Hondt electoral system of acquiring the large number of votes needed to take other FijiFirst candidates over the line. The question is invariably whether he is sufficiently part of the mainstream to be acclaimed by consensus as Bainimarama’s legitimate successor.  

The USP academic, Professor Konai Thaman, sparked a furore this week by questioning whether the deported Professor Pal Ahluwalia, was “Pasefikan” enough to be USP Vice Chancellor. Some may raise the same question about the AG. Whether a devout Muslim who interrupts the business of government five times a day to pray towards Mecca, consults an Imam and whose family is teaching its children Arabic so they can read the Koran in its original form, can ever be generally accepted as Fijian prime minister. It is not a question of religious tolerance but political reality. If one accepts the dictum that politics is the art of the possible, is it possible for Aiyaz Sayed-Khaiyum to win an election at the head of a mainstream party in a Christian and Hindu dominant Fiji?  If the rumours are true, Frank Bainimarama may be about to test that proposition. Truly a crash through or crash proposition of epic proportions. 

I personally don’t have a problem with the AG as PM on religious grounds. In fact, I have already recounted the story of how I told his father, Sayed, in 2012 that I one day hoped that his son could be prime minister. But that was before I experienced the hubris, arrogance, nepotism, cronyism, tribalism, vindictiveness and ruthlessness on the AG’s part that I witnessed at first hand for the best part of six years and eventually convinced me of his unsuitability to lead. His assault on the integrity of Fiji’s institutions of state – that began long before last week and his been endorsed by his patron, Frank Bainimarama – is merely the final straw.

But will there be an election at all? Rumours have also surfaced that the government may use the pandemic as an excuse to defer next year’s poll, emphasising the need for continuing stability and confidence rather than the unpredictability of an on-time election that doesn’t go its way. Certain military officers close to the Prime Minister privately express the view that if the “Snake”, Rabuka, ever rears his head again, another coup is inevitable. But the Fiji of the 2020s is not the Fiji of 2006, let alone of 2000 or 1987. Young people especially are just not as acquiescent these days as their predecessors and integrated schools have made the new generation of Fijians much more homogenous. As president, Bainimarama may conceivably have the power to prorogue the parliament and reintroduce rule by decree to keep Khaiyum in office. But doing so would destroy his legacy and a great deal of community goodwill towards him.

My own view is that things have come too far for anyone to again behave so recklessly. Leaving aside the disaster of Fiji again becoming a pariah nation – succoured only by other dictatorships – the RFMF, let alone the country as a whole, would be torn apart. Another coup would inevitably be seen not as entrenching the rights of a particular community but entrenching the power and privilege of Frank Bainimarama and Aiyaz Sayed-Khaiyum. Fiji is not yet Zimbabwe even if we have begun to take the Zimbabwe road. And we are certainly not China, with a population prepared to trade democracy for prosperity and kowtow to perpetual dictatorship. Some Fijians worry that the Australian and New Zealand governments might be tempted to turn a blind eye to another coup to keep Bainimarama out of the clutches of the Chinese. But given our dependence on the goodwill of ordinary Aussies and Kiwis to resume coming when the Covid nightmare ends, it’s a fair bet that whatever their governments do, it is they – if democracy dies in Fiji – who would drive the final nail into the coffin of the economy and the future prospects of a great many young Fijians.  

Sadly, the old adage that power corrupts and absolute power corrupts absolutely could have been invented for the duo of Frank Bainimarama and Aiyaz Sayed-Khaiyum. They did some good things once. A lot of good things, in fact.

Yes, Fiji Labour Party, let’s indeed set the record right
 
By RUSSELL HUNTER

Charlie Charters is well able to defend himself but in its Facebook attack on him, the FLP trots out its repeated inaccuracies and utterly erroneous interpretations regarding myself and the Fiji Times during my tenure there as editor-in-chief from 1997 to 2003. These seem to have become accepted as part of FLP lore which is a great pity because they are wrong.

At this stage I should point out that I have no axe to grind here. Having retired, I don’t and almost certainly won’t work in Fiji. My interest here is in setting the record straight.
 
While it’s true to say that Mr Chaudhry was out of the country when I was abducted by the military and deported in February 2008, to claim that he didn’t know of it stretches credulity too far.
 
And to further claim that such matters would not be discussed in Cabinet is quite wrong. Let’s remember that there was no real functioning Cabinet at the time of my deportation. Cabinet in effect was Bainimarama and Khaiyum (little seems to have changed there). Nevertheless there were meetings and Mr Chaudhry would have been present at some of them.
 
It’s also known that the matter of my work permit was discussed in Cabinet in 1999. This Cabinet would have been chaired by Mr Chaudhry as prime minister. Now if such matters were deemed worthy of Cabinet in 1999, why not in 2008? That, let’s remember, was five years after I’d left the Fiji Times. It’s not clear to me why the FLP would want to insist that Mr Chaudhry had nothing to do with my illegal deportation.
 
The FLP also seems to be at pains to avoid the truth, as revealed in the Fiji Sun, that millions of dollars collected to assist poor Indo-Fijians in the wake of the Speight coup found their way into Chaudhry bank accounts in Australia and New Zealand.
 
People will draw their own conclusions.
 
Back to 1999, Justice Fatiaki did not “quash” an “appeal.” The then publisher of the Fiji Times sought and was granted judicial review of the decision by the People’s Coalition Government led by Mr Chaudhry to decline renewal of my work permit. The Fiji Times sought to show that the minister had not followed procedure laid down in the relevant Act and had, therefore, acted outside his powers. In his judgement, Justice Fatiaki found that was not the case and I promptly left the country.
 
There was no appeal to quash.
 
As a side note it may be of interest that Mr Chaudhry insisted that all contact at this time with the Fiji Times be conducted through an intermediary. This same intermediary told the publisher that relations could be vastly improved if he would only get rid of me and appoint as editor-in-chief, the FLP’s own nominee. (Not that the government was seeking to interfere with the media. Heaven forbid.)
 
Which brings us to that tired old FLP furphy that the Fiji Times was anti-Chaudhry. The party’s response to Mr Charters says he ”needs to look at the plethora of independent literature that is available today that chastises the Fiji Times for its coverage of the Chaudhry government and the role it played in inciting the 2000 coup.” It omits to name a single one of this plethora. Perhaps it would care to do so.

All the literature I have read has been so tainted as to be meaningless and in at least one case laughable. If there is a properly independent piece of literature that supports the party’s assertions I’d be grateful to have an opportunity to read it.
 
But it seems the FLP prefers to rely on sweeping generalisations about an absence of training and the presence of some “hidden agenda” in the Fiji Times’ editorials and news reporting. At the risk of being repetitive, there was extensive training while any independent examination of the Fiji Times editorials will show that the number of pro-government/Chaudhry opinions outnumbered anti-government ones during the tenure of the People’s Coalition Government. The same can be said of the news coverage.
 
All this only illustrates the FLP conviction – and it’s far from alone in this – that anything short of adulation in the media is an attack. Of course that is simply not so.
 
The FLP is fully entitled to hold and express opinions – but it cannot claim them as fact.
 
I hope this goes some way to setting the record right.

3: We request the Director of Public Prosecutions to establish on what grounds the original letter tendered from one Harbhajan Lal dated 9 September 2004 to FIRCA from Haryana in India was withheld [if it was] and a new letter from Delhi Study Group dated 12 October 2004 substituted in Mr Chaudhry’s affidavit before Justice Daniel Goundar in the Fiji High Court. The “Harbhajan Lal Letter” of 9 September 2004 states the money was collected in Haryana and part of it was transacted through the Indian Consulate in Sydney, Australia. Harbhajan Lal wrote from Haryana:

“Respected Chaudhry Saheb, Nameste. We are hale and hearty here and please accept our good wishes. I received your letter. You have asked for details of the funds. You may recall that when you were here in the year 2000, we had formed a committee, which requested you to leave Fiji and stay in Australia since the situation in Fiji was not safe and you were not secure there. The committee also assured you that it would collect funds for your settlement in Australia. Lakhs of people from Haryana including traders, businessmen, landlords and non-resident Indians contributed heavily for the cause. The amount was pouring in for three years, which was sent to you from the year 2000 to 2002. The total amounting to nearly AUD fifteen laks was sent to you with the help of Government of India through its Consulate General in Sydney. We sent AUD 503,000/- as first instalment in the year 2000. In 2001, AUD $486,890/- was sent and then in 2002 AUD $514, 149/- was sent.”

The “Delhi Study Group Letter” states, “This is to confirm that funds were collected in New Delhi and other parts of India, including NRI's (Non-Resident Indians) to assist Hon'ble Mahendra Pal Chaudhry, Former Prime Minister of Fiji in 2000-2002.”

5: We call upon the Director of Public Prosecutions to ask Mr Chaudhry who transferred the money from India – Delhi Study Group based in New Delhi or Harbahajan Lal in Haryana, India?

6: We request the Director of Public Prosecutions to establish whether Mr Chaudhry and Nalin Patel, in presenting to FIRCA the letter from Harbhjan Lal, whose content was materially false [re his enquiring the details of the funds etc] –Chaudhry (and Nalin Patel) committed a criminal offence under Fiji’s tax laws by offering a false document to FIRCA, namely the Harbhajan Lal letter.

7: We request the Director of Public Prosecutions to investigate the Suva accountancy firm of G. Lal & Co, Mr Chaudhry’s delegated tax agent to deal with FIRCA in 2004, to establish whether it was aware of the inconsistencies in the Harbhajan Lal-Chaudhry correspondence regarding the $2million, and whether the accountancy firm also had in its possession the Delhi Support Group letter dated 12 October 2004.

8: We request the Director of Public Prosecutions to establish whether Mr Chaudhry and Nalin Patel submitted Harbhajan Lal’s letter knowing its content was false in material respects to prevent FIRCA from pursuing the original source of the funds in Mr Chaudhry’s Australian bank account.

9: We request the Director of Public Prosecutions to investigate whether Mr Chaudhry, in presenting the Tax Amnesty submission to the Cabinet in September 2007 for endorsement, might have abused office as Interim Finance Minister and direct line manager of Fiji Island Revenue and Customs Authority (FIRCA), to benefit himself, and to escape any future criminal prosecutions for submitting late tax returns between 2000 and 2003. We have documentary evidence that in August 2007 Mr Chaudhry still owed FIRCA $57,000 in tax debt, due to be paid on 9 August 2007. His own $57,000 could have fitted into insufficient advance payment or even late payment amnesty.

10. We therefore request the DPP to establish whether Mr Chaudhry had taxes or returns outstanding and paid during the amnesty period he had ordered and hence gained avoidance of penalties, and if so, then a case for Abuse of Office as Finance Minister and line manager of FIRCA could be made against him.

11: We call upon the Director of Public Prosecutions to plead with the Fiji High Court to expunge the patently false claims made against us in Chaudhry v State [2012] FJHC 1229; HAM034.2011 (25 July 2012) – re that we published Mr Chaudhry’s tax details in anti-government websites. In conclusion, we leave you with the words of the great English judge, the late Lord Denning in King v Victor Parsons & Co [1973] 1 WLR 29, 33-34:

“The word 'fraud' here is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or his agent such that it would be 'against conscience' for him to avail himself of the lapse of time. The cases show that, if a man knowingly commits a wrong (such as digging underground another man's coal); or a breach of contract (such as putting in bad foundations to a house), in such circumstances that it is unlikely to be found out for many a long day, he cannot rely on the Statute of Limitations as a bar to the claim: see Bulli Coal Mining Co v Osborne [1899] AC 351 and Applegate v Moss [1971] 1 QB 406. In order to show that he 'concealed' the right of action 'by fraud', it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he keeps it secret. He conceals the right of action. He conceals it by 'fraud' as those words have been interpreted in the cases. To this word 'knowingly' there must be added recklessly': see Beaman v ARTS Ltd [1949] 1 KB 550, 565-566. Like the man who turns a blind eye. He is aware that what he is doing may well be a wrong, or a breach of contract, but he takes the risk of it being so. He refrains from further inquiry least it should prove to be correct: and says nothing about it. The court will not allow him to get away with conduct of that kind. It may be that he has no dishonest motive: but that does not matter. He has kept the plaintiff out of the knowledge of his right of action: and that is enough: see Kitchen v Royal Air Force Association [1958] 1 WLR 563.”

The limitation statute’s aim is to prevent citizens from being oppressed by stale claims, to protect settled interests from being disturbed, to bring certainty and finality to disputes and so on. These are, as legal commentators have pointed out, laudable aims but they can conflict with the need to do justice in individual cases where an otherwise unmeritorious defendant can play the limitation trump card and escape liability.

We call upon the Director of Public Prosecutions to ask Mr Chaudhry which of the two letters – Harbhajan Lal or Delhi Study Group – is the lie – as they both can’t be genuine. Apart from the false accusations against us in his affidavit, the contents of the Harbhajan Lal letter dated 9 September 2004 does not accord with his bank statements from the Commonwealth Bank of Australia which he offered to FIRCA.

In our humble submission we beg the Director of Prosecutions to call upon the Fiji High Court to waiver the statute of limitation for prima facie there is evidence in the “Harbhajan Lal” letter that Mr Chaudhry obtained a favourable decision from FIRCA (an oversight on the part of FIRCA tax officers) through alleged fraud – the contents of the Harbhajan Lal letter does not square with his Australian bank statements.

Moreover, although we do not have a copy of Mr Chaudhry’s affidavit cited by Justice Goundar (despite requests for one from the Director of the Public Prosecutions) we call upon the Director of Public Prosecutions to examine the contents of both the Harbhajan Lal and the Delhi Support Group letters.  If there are glaring disparities in the two letters than Mr Chaudhry must be deprived of the statute of limitation for the “fraud”, if any on his part, would be a continuing “fraud” since 2004 when he first offered Harbhajan Lal’s letter and now the Delhi Study Group letter in 2012 to explain away the $2million is his Australian bank account.

VICTOR LAL and RUSSELL HUNTER, 4 September 2012