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In every democratic legal system, a court’s judgment is not the end of the conversation. It is the beginning. Judges and Magistrates interpret the law, but lawyers, scholars, journalists, and the public analyse, question, and challenge those interpretations. This process is not an affront to judicial authority. It is how the law grows.
The doctrine of sub judice protects trials from interference, but it is not, and has never been, a blanket gag on public discourse. Responsible commentary that informs, educates, and interrogates legal issues is not contempt of court. It is a fundamental part of how constitutional societies hold power to account.
From Snails to Sovereigns: The Tradition of Scrutiny
The most famous torts case in history - Donoghue v Stevenson [1932] AC 562 - arose from a decomposed snail in a ginger beer bottle. Nearly a century later, that judgment is still dissected in lecture halls, critiqued in law journals, and used as an exam question. The case revolutionised negligence law, not just because of what the judges said, but because generations of lawyers analysed what they said, and why.
The same is true in constitutional and international law. Few decisions have been as influential, or as relentlessly scrutinised, as R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147. This landmark case destroyed the notion that former heads of state enjoyed absolute immunity for torture and crimes against humanity. It established the principle that certain crimes are so serious they transcend borders and offices, and it demonstrated that no one is above the law.
The doctrine of sub judice protects trials from interference, but it is not, and has never been, a blanket gag on public discourse. Responsible commentary that informs, educates, and interrogates legal issues is not contempt of court. It is a fundamental part of how constitutional societies hold power to account.
From Snails to Sovereigns: The Tradition of Scrutiny
The most famous torts case in history - Donoghue v Stevenson [1932] AC 562 - arose from a decomposed snail in a ginger beer bottle. Nearly a century later, that judgment is still dissected in lecture halls, critiqued in law journals, and used as an exam question. The case revolutionised negligence law, not just because of what the judges said, but because generations of lawyers analysed what they said, and why.
The same is true in constitutional and international law. Few decisions have been as influential, or as relentlessly scrutinised, as R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147. This landmark case destroyed the notion that former heads of state enjoyed absolute immunity for torture and crimes against humanity. It established the principle that certain crimes are so serious they transcend borders and offices, and it demonstrated that no one is above the law.
Retired Law Lord Hoffman Lord Hoffmann and the Imperative of Judicial Integrity
Perhaps even more significant than the Pinochet outcome was what happened before it. In the original appeal, Lord Hoffmann, one of the Law Lords, sat on the panel that decided the case, even though his wife was a director of Amnesty International Charity Ltd, a charitable arm of Amnesty International, which had been granted leave to intervene.
No party alleged bias. No evidence suggested Lord Hoffmann’s judgment was influenced. But the mere appearance of a conflict of interest was so serious that the House of Lords took the unprecedented step of setting aside its own judgment and ordering the case to be reheard before a new panel.
This was not an act of procedural nicety. It was a profound statement of constitutional principle: judicial independence and impartiality must not only exist - they must be seen to exist. The rule of law demands vigilance against conflicts, even if it means reopening a case of global significance.
Lessons for Fiji: The Fight Against Impunity
The Pinochet precedent resonates deeply in Fiji, where three decades of coups have left a legacy of immunity and unaccountability. From Sitiveni Rabuka’s 1987 overthrow of a democratically elected government, to George Speight’s 2000 insurrection, to Voreqe Bainimarama’s 2006 military takeover, those responsible for dismantling constitutional order have largely escaped legal consequence, shielded by decrees, constitutional provisions, and political deals.
This culture of impunity is fortified by Section 157 of the 2013 Constitution, which purports to grant sweeping immunity to those involved in the 2000 and 2006 coups. But as Pinochet demonstrated, immunity is not absolute. International law, evolving norms of accountability, and the doctrine of jus cogens (peremptory norms) all limit the ability of states to insulate individuals from responsibility for serious breaches of law — including crimes against democracy itself.
Book Lawyers vs Bush Lawyers
Those who reflexively cry “contempt” when judicial decisions are scrutinised betray a poor understanding of the law they claim to defend. The “book lawyers” - judges, academics, and practitioners - know that reasoned criticism is the oxygen of legal development. It is the “bush lawyers”, those who confuse commentary with interference, who weaken public confidence by seeking to silence legitimate debate.
The truth is that every major advance in the law, from consumer protection to human rights, from judicial independence to transitional justice, was forged in the crucible of scrutiny. Without public debate, Donoghue would be a footnote, Pinochet an anomaly, and constitutional accountability a slogan without substance.
A Call to Action: Speak, Study, Scrutinise
Fiji stands at a constitutional crossroads. If it is to break free from its history of coups and move towards genuine constitutionalism, silence is not an option. Lawyers, journalists, academics, and citizens must continue to analyse judicial decisions, even controversial ones, and to question laws like Section 157 that shield perpetrators of democratic ruptures from accountability.
Just as Pinochet showed that immunity is not an iron shield, so too must Fiji confront the uncomfortable truth that constitutional continuity is impossible without constitutional justice. That requires fearless legal scholarship, public debate, and a willingness to test entrenched assumptions in the light of evolving principles of international and constitutional law.
The scrutiny of judicial decisions, including those touching the highest offices of state, is not contempt. It is the essence of constitutional democracy. Book lawyers know that courts are strengthened, not weakened, when their judgments are dissected, challenged, and debated. And history shows that even the most powerful, dictators, generals, coup-makers, can be brought within the reach of the law when societies refuse to stay silent.
Speaking About Live Cases Strengthens, Not Weakens, the Rule of Law
It is in this same tradition of open legal scrutiny that we must be prepared, and allowed to, also look squarely at the judicial review challenges filed by the JSC, FLS, Graham Leung and Barbara Malimali before the Fiji High Court. These cases go to the heart of Fiji’s constitutional architecture. They raise fundamental questions about the limits of executive power, the independence of oversight institutions, the interpretation of constitutional provisions, and the relationship between commissions, the judiciary, and the President. These are not trivial matters of procedure. They are questions that will shape how power is exercised and constrained in Fiji for decades to come.
Discussing these cases - their context, legal issues, and potential implications - is not only permissible but essential in a democracy governed by the rule of law. So long as commentary remains grounded in publicly available information, avoids attempts to influence the court’s decision, and does not impugn the integrity of the judges or parties involved, it is neither sub judice nor contempt of court. It is a legitimate, constitutionally protected exercise of free expression and public interest commentary.
Indeed, courts in all common-law jurisdictions have repeatedly affirmed that reasoned public discussion of pending cases contributes to, rather than undermines, judicial independence. It strengthens public understanding, enhances transparency, and reinforces confidence in the judiciary’s role as the ultimate arbiter of constitutional disputes.
If Fiji is ever to move beyond its history of coups, immunities, and unaccountable power, it must embrace, not fear, such open legal discourse. Silence protects impunity; scrutiny protects democracy. And in the tradition of Donoghue, Pinochet, and countless other cases before them, the rigorous examination of our courts’ most consequential decisions is not a threat to justice. It is one of justice’s most powerful safeguards.
Perhaps even more significant than the Pinochet outcome was what happened before it. In the original appeal, Lord Hoffmann, one of the Law Lords, sat on the panel that decided the case, even though his wife was a director of Amnesty International Charity Ltd, a charitable arm of Amnesty International, which had been granted leave to intervene.
No party alleged bias. No evidence suggested Lord Hoffmann’s judgment was influenced. But the mere appearance of a conflict of interest was so serious that the House of Lords took the unprecedented step of setting aside its own judgment and ordering the case to be reheard before a new panel.
This was not an act of procedural nicety. It was a profound statement of constitutional principle: judicial independence and impartiality must not only exist - they must be seen to exist. The rule of law demands vigilance against conflicts, even if it means reopening a case of global significance.
Lessons for Fiji: The Fight Against Impunity
The Pinochet precedent resonates deeply in Fiji, where three decades of coups have left a legacy of immunity and unaccountability. From Sitiveni Rabuka’s 1987 overthrow of a democratically elected government, to George Speight’s 2000 insurrection, to Voreqe Bainimarama’s 2006 military takeover, those responsible for dismantling constitutional order have largely escaped legal consequence, shielded by decrees, constitutional provisions, and political deals.
This culture of impunity is fortified by Section 157 of the 2013 Constitution, which purports to grant sweeping immunity to those involved in the 2000 and 2006 coups. But as Pinochet demonstrated, immunity is not absolute. International law, evolving norms of accountability, and the doctrine of jus cogens (peremptory norms) all limit the ability of states to insulate individuals from responsibility for serious breaches of law — including crimes against democracy itself.
Book Lawyers vs Bush Lawyers
Those who reflexively cry “contempt” when judicial decisions are scrutinised betray a poor understanding of the law they claim to defend. The “book lawyers” - judges, academics, and practitioners - know that reasoned criticism is the oxygen of legal development. It is the “bush lawyers”, those who confuse commentary with interference, who weaken public confidence by seeking to silence legitimate debate.
The truth is that every major advance in the law, from consumer protection to human rights, from judicial independence to transitional justice, was forged in the crucible of scrutiny. Without public debate, Donoghue would be a footnote, Pinochet an anomaly, and constitutional accountability a slogan without substance.
A Call to Action: Speak, Study, Scrutinise
Fiji stands at a constitutional crossroads. If it is to break free from its history of coups and move towards genuine constitutionalism, silence is not an option. Lawyers, journalists, academics, and citizens must continue to analyse judicial decisions, even controversial ones, and to question laws like Section 157 that shield perpetrators of democratic ruptures from accountability.
Just as Pinochet showed that immunity is not an iron shield, so too must Fiji confront the uncomfortable truth that constitutional continuity is impossible without constitutional justice. That requires fearless legal scholarship, public debate, and a willingness to test entrenched assumptions in the light of evolving principles of international and constitutional law.
The scrutiny of judicial decisions, including those touching the highest offices of state, is not contempt. It is the essence of constitutional democracy. Book lawyers know that courts are strengthened, not weakened, when their judgments are dissected, challenged, and debated. And history shows that even the most powerful, dictators, generals, coup-makers, can be brought within the reach of the law when societies refuse to stay silent.
Speaking About Live Cases Strengthens, Not Weakens, the Rule of Law
It is in this same tradition of open legal scrutiny that we must be prepared, and allowed to, also look squarely at the judicial review challenges filed by the JSC, FLS, Graham Leung and Barbara Malimali before the Fiji High Court. These cases go to the heart of Fiji’s constitutional architecture. They raise fundamental questions about the limits of executive power, the independence of oversight institutions, the interpretation of constitutional provisions, and the relationship between commissions, the judiciary, and the President. These are not trivial matters of procedure. They are questions that will shape how power is exercised and constrained in Fiji for decades to come.
Discussing these cases - their context, legal issues, and potential implications - is not only permissible but essential in a democracy governed by the rule of law. So long as commentary remains grounded in publicly available information, avoids attempts to influence the court’s decision, and does not impugn the integrity of the judges or parties involved, it is neither sub judice nor contempt of court. It is a legitimate, constitutionally protected exercise of free expression and public interest commentary.
Indeed, courts in all common-law jurisdictions have repeatedly affirmed that reasoned public discussion of pending cases contributes to, rather than undermines, judicial independence. It strengthens public understanding, enhances transparency, and reinforces confidence in the judiciary’s role as the ultimate arbiter of constitutional disputes.
If Fiji is ever to move beyond its history of coups, immunities, and unaccountable power, it must embrace, not fear, such open legal discourse. Silence protects impunity; scrutiny protects democracy. And in the tradition of Donoghue, Pinochet, and countless other cases before them, the rigorous examination of our courts’ most consequential decisions is not a threat to justice. It is one of justice’s most powerful safeguards.
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*In a judgment that will reverberate far beyond the courtroom, the High Court of Fiji has drawn a decisive line between political power and the rule of law. Former Prime Minister Josaia Voreqe Bainimarama has been convicted of making an unwarranted demand with menace after threatening the country’s top police officer Rusiate Tudravu to dismiss two officers or resign, a move the court found was a deliberate attempt to influence the exercise of police powers.
*In contrast, former Police Commissioner Sitiveni Qiliho was acquitted of abuse of office. While the court agreed that his termination of the two officers was procedurally flawed, prosecutors failed to prove the criminal intent required for conviction, a reminder that in criminal law, illegality and criminality are not the same thing.
*This ruling is more than the outcome of a single case. It is a powerful statement about the constitutional order in Fiji: that even the most powerful figures are bound by the law, that state institutions must remain independent from political pressure, and that accountability is the cornerstone of a democratic system.
*The decision also sets new legal benchmarks on privacy, policing powers, and executive accountability, and will shape the relationship between government and law enforcement for years to come.
*In contrast, former Police Commissioner Sitiveni Qiliho was acquitted of abuse of office. While the court agreed that his termination of the two officers was procedurally flawed, prosecutors failed to prove the criminal intent required for conviction, a reminder that in criminal law, illegality and criminality are not the same thing.
*This ruling is more than the outcome of a single case. It is a powerful statement about the constitutional order in Fiji: that even the most powerful figures are bound by the law, that state institutions must remain independent from political pressure, and that accountability is the cornerstone of a democratic system.
*The decision also sets new legal benchmarks on privacy, policing powers, and executive accountability, and will shape the relationship between government and law enforcement for years to come.
| The Fiji High Court’s judgment in State v Bainimarama & Qiliho [2025] FJHC 624 is one of the most consequential rulings in Fiji’s post-2006 legal history. In convicting former Prime Minister Josaia Voreqe Bainimarama of unwarranted demand with menace and acquitting former Police Commissioner Sitiveni Qiliho of abuse of office, the Court has drawn a clear constitutional boundary around the exercise of executive power and the independence of law enforcement institutions. |  |
From a Routine Police Stop to a Constitutional Test Case
The controversy began with what should have been a routine policing matter. On 21 May 2021, police officers stopped and searched a taxi driven by Bainimarama’s elder brother, Jonacani (“JB”) and, without finding evidence, photographed and circulated his image and personal details internally.
The High Court ruled that this conduct breached JB’s constitutional rights to privacy and protection from unreasonable search (ss. 12 and 24). The judgment emphasised that policing powers must be exercised within legal limits and cannot extend to surveillance or intelligence-gathering absent lawful authority. This was the crucial factual trigger for the events that followed.
Bainimarama’s Demand: Personal Loyalty vs Constitutional Duty
Upon learning of the incident, Bainimarama demanded that Acting Police Commissioner Rusiate Tudravu dismiss the officers involved, and, when Tudravu declined, allegedly threatened that he should resign.
The Court accepted that Bainimarama’s demands were made in his capacity as Prime Minister and were designed to influence a public official’s exercise of statutory functions. Applying an objective test for “menace” under section 353 of the Crimes Act, the Court held that a reasonable person in Tudravu’s position would likely feel compelled to act unwillingly under such pressure from the head of government, even though Bainimarama lacked legal authority to dismiss him.
Critically, the Court noted that Bainimarama’s actions were not justified by the seriousness of the underlying police misconduct. Expressing concern about constitutional rights was legitimate but issuing threats to influence official decision-making was not. The judgment concludes that Bainimarama intended to subvert lawful disciplinary processes and thereby committed the offence of unwarranted demand with menace.
Qiliho’s Acquittal: The Limits of Criminal Liability
The Court took a different view in relation to Sitiveni Qiliho. Although he terminated the two police officers without proper procedure, an action that the Court characterised as irregular, it held that the prosecution had not proven criminal intent beyond reasonable doubt.
The legal question turned on the status of Rusiate Tudravu’s acting appointment and whether Qiliho lawfully resumed command before the disciplinary decisions were made. Ambiguities in appointment procedures, coupled with evidence that Qiliho sought legal advice, created sufficient doubt to warrant acquittal.
The acquittal does not excuse the procedural flaws in Qiliho’s actions but underscores a key principle of criminal law: not all unlawful conduct amounts to a crime. Without clear proof of deliberate misuse of authority, the threshold for criminal liability was not met.
Broader Constitutional Significance
The judgment is significant far beyond the fate of the two accused. It offers several enduring lessons about constitutional governance in Fiji:
A Defining Moment for Accountability
This ruling is likely to stand as a landmark in Fiji's public law. It is a rare instance in which a former head of government (for the second time) has been held criminally accountable for overstepping constitutional boundaries. At the same time, the decision tempers its reach by recognising that not every breach of administrative propriety meets the threshold of criminal abuse.
For Fiji’s legal and political system, the message is clear: executive power ends where the Constitution and the law begin. Future governments, law enforcement agencies, and public officials will need to navigate this boundary with care, and always with respect for the principles of accountability, independence, and the rule of law.
The controversy began with what should have been a routine policing matter. On 21 May 2021, police officers stopped and searched a taxi driven by Bainimarama’s elder brother, Jonacani (“JB”) and, without finding evidence, photographed and circulated his image and personal details internally.
The High Court ruled that this conduct breached JB’s constitutional rights to privacy and protection from unreasonable search (ss. 12 and 24). The judgment emphasised that policing powers must be exercised within legal limits and cannot extend to surveillance or intelligence-gathering absent lawful authority. This was the crucial factual trigger for the events that followed.
Bainimarama’s Demand: Personal Loyalty vs Constitutional Duty
Upon learning of the incident, Bainimarama demanded that Acting Police Commissioner Rusiate Tudravu dismiss the officers involved, and, when Tudravu declined, allegedly threatened that he should resign.
The Court accepted that Bainimarama’s demands were made in his capacity as Prime Minister and were designed to influence a public official’s exercise of statutory functions. Applying an objective test for “menace” under section 353 of the Crimes Act, the Court held that a reasonable person in Tudravu’s position would likely feel compelled to act unwillingly under such pressure from the head of government, even though Bainimarama lacked legal authority to dismiss him.
Critically, the Court noted that Bainimarama’s actions were not justified by the seriousness of the underlying police misconduct. Expressing concern about constitutional rights was legitimate but issuing threats to influence official decision-making was not. The judgment concludes that Bainimarama intended to subvert lawful disciplinary processes and thereby committed the offence of unwarranted demand with menace.
Qiliho’s Acquittal: The Limits of Criminal Liability
The Court took a different view in relation to Sitiveni Qiliho. Although he terminated the two police officers without proper procedure, an action that the Court characterised as irregular, it held that the prosecution had not proven criminal intent beyond reasonable doubt.
The legal question turned on the status of Rusiate Tudravu’s acting appointment and whether Qiliho lawfully resumed command before the disciplinary decisions were made. Ambiguities in appointment procedures, coupled with evidence that Qiliho sought legal advice, created sufficient doubt to warrant acquittal.
The acquittal does not excuse the procedural flaws in Qiliho’s actions but underscores a key principle of criminal law: not all unlawful conduct amounts to a crime. Without clear proof of deliberate misuse of authority, the threshold for criminal liability was not met.
Broader Constitutional Significance
The judgment is significant far beyond the fate of the two accused. It offers several enduring lessons about constitutional governance in Fiji:
- Rule of Law Above All: Even the most powerful public officials remain subject to the law. Bainimarama’s conviction affirms that political authority cannot override statutory independence or constitutional procedure.
- Institutional Independence: The Court’s reasoning reinforces the operational autonomy of the Fiji Police Force and limits political influence over disciplinary decisions.
- Strict Evidentiary Standards: Qiliho’s acquittal demonstrates the judiciary’s commitment to the criminal standard of proof - intent, not just irregularity, must be shown to secure a conviction.
- Privacy and Policing Standards: The Court’s analysis of privacy rights sets a precedent for police conduct, emphasising that surveillance, data collection, and intelligence practices must be legally authorised and proportionate.
A Defining Moment for Accountability
This ruling is likely to stand as a landmark in Fiji's public law. It is a rare instance in which a former head of government (for the second time) has been held criminally accountable for overstepping constitutional boundaries. At the same time, the decision tempers its reach by recognising that not every breach of administrative propriety meets the threshold of criminal abuse.
For Fiji’s legal and political system, the message is clear: executive power ends where the Constitution and the law begin. Future governments, law enforcement agencies, and public officials will need to navigate this boundary with care, and always with respect for the principles of accountability, independence, and the rule of law.
Location: Wellmeadow Street, Paisley, Scotland Snailing Its Way Before the Court
It all began in 1928 when May Donoghue (1898–1958) ordered a bottle of ginger beer at a café in Paisley, Scotland. To her horror, she discovered a decomposed snail floating in her drink, and soon after, she fell seriously ill with gastroenteritis.
Donoghue decided to fight back. She sued the manufacturer, David Stevenson, claiming he owed her a duty of care. The landmark case, Donoghue v Stevenson (1932), was eventually settled out of court but not before it transformed the legal world.
The ruling established the modern law of negligence, recognising that manufacturers and others owe a duty not to cause foreseeable harm to those who use their products. The case became famously known as “the snail in the bottle”.
Today, May Donoghue is remembered not just as a victim but as a pioneer of consumer rights. A bronze statue in Paisley, titled “Dear Duty”, shows her holding her two twin granddaughters on their christening day, a symbol of justice and the legacy of her courage. The statue stands near the very café where she made her shocking discovery, its base decorated with bronze spirals representing the infamous snail.
It all began in 1928 when May Donoghue (1898–1958) ordered a bottle of ginger beer at a café in Paisley, Scotland. To her horror, she discovered a decomposed snail floating in her drink, and soon after, she fell seriously ill with gastroenteritis.
Donoghue decided to fight back. She sued the manufacturer, David Stevenson, claiming he owed her a duty of care. The landmark case, Donoghue v Stevenson (1932), was eventually settled out of court but not before it transformed the legal world.
The ruling established the modern law of negligence, recognising that manufacturers and others owe a duty not to cause foreseeable harm to those who use their products. The case became famously known as “the snail in the bottle”.
Today, May Donoghue is remembered not just as a victim but as a pioneer of consumer rights. A bronze statue in Paisley, titled “Dear Duty”, shows her holding her two twin granddaughters on their christening day, a symbol of justice and the legacy of her courage. The statue stands near the very café where she made her shocking discovery, its base decorated with bronze spirals representing the infamous snail.
