Fijileaks: To understand how we got here, we must return to the era when Aiyaz Sayed-Khaiyum held almost unchecked control over Fiji’s legal system. From 2007 onwards, following the Bainimarama coup, Khaiyum embarked on a systematic campaign to rewrite the rules of judicial review, the centuries-old mechanism that allows courts to scrutinise the actions of public authorities.
  We stand firmly with Suva lawyer Richard Naidu, who has reminded this Coalition government, and its thin-skinned enforcers, that criticism is not a crime. Calling out government failures, questioning a Commission of Inquiry, or challenging the political narrative is not “interference”, nor is it “perverting the course of justice.” Threatening legal action against the Opposition Leader Inia Seruiratu, or anyone else, for simply commenting on a public report is nothing short of an attempt to muzzle dissent. These are the same bullying tactics once used by Bainimarama and Khaiyum to silence their critics. Fijians did not vote for change only to see the same culture of intimidation return under a different name. Naidu is right: we must not go back. |  |
Robe and Robbery: How Judicial Review Became Khaiyum's Favourite Legal Loophole. He turned JR into His Personal Escape Hatch
It is the clearest sign yet that Fiji’s ruling legal establishment is feeling the pressure. In an extraordinary public statement this week, Isireli Fa, acting on behalf of the Judicial Services Commission (JSC), warned that continued public criticism of the Commission of Inquiry (COI) into the appointment of the FICAC Commissioner could result in contempt of court proceedings.
Fa’s words were chilling in their intent:
“Unwarranted and uninformed attacks on the JSC, on the Commission of Inquiry report, or on the judicial review process currently before the courts, using the news media or social media, could amount to contempt of court,” he declared.
“Those engaging in such conduct risk facing legal consequences.”
The message was unmistakable, aimed squarely at opposition leader Inia Seruiratu, civil society critics, and investigative journalists: “Shut up, or be jailed.”
But this threat is more than just legal sabre-rattling. It is the predictable culmination of nearly two decades of systemic legal engineering, a deliberate reshaping of Fiji’s judicial review system by former Attorney-General Aiyaz Sayed-Khaiyum. That restructuring was designed to blunt the courts’ ability to hold the executive accountable, while empowering state institutions to weaponise judicial processes against critics.
Today, that architecture is being deployed by Fa on behalf of the JSC, the very body meant to protect judicial independence, to shield itself from scrutiny and intimidate those who question its conduct.
A Chilling Warning to Parliament, and to the Public
Fa’s remarks came in direct response to comments by Opposition Leader Seruiratu, Rather than engage with those criticisms on their merits, the JSC’s legal counsel chose confrontation, suggesting that Seruiratu’s remarks and broader public commentary risk “interfering” with the court process.
Yet the COI report is not a judicial decision. It is a fact-finding exercise commissioned under statutory authority to examine the legality and propriety of Barbara Malimali's appointment, a matter of significant public interest. Its findings are not sub judice. They are, and must remain, open to vigorous public debate.
By casting such commentary as potential contempt Fa, on behalf of the JSC, is attempting something unprecedented: to police public discourse about JSC's own conduct. This is not about protecting the integrity of judicial proceedings. It is about controlling the narrative, and it sets a deeply dangerous precedent.
How Aiyaz Khaiyum Rewired Judicial Review
To understand how we got here, we must return to the era when Aiyaz Sayed-Khaiyum held almost unchecked control over Fiji’s legal system. From 2007 onwards, following the Bainimarama coup, Khaiyum embarked on a systematic campaign to rewrite the rules of judicial review, the centuries-old mechanism that allows courts to scrutinise the actions of public authorities.
Under the pre-2006 constitutional framework, judicial review was a robust, common law remedy. Citizens, civil society organisations, and Parliament itself could challenge unlawful executive decisions in the High Court. Judges had broad discretion to quash decisions, declare them invalid, or compel lawful action.
Khaiyum’s reforms changed all that. Through a series of decrees and constitutional amendments, he narrowed access to judicial review, curtailed judicial discretion, and carved out vast zones of government activity that were immune from court oversight. These included:
The effect was transformative. Judicial review ceased to be a powerful check on state power and became a tightly controlled procedural tool, often used more effectively by state institutions against their critics than by citizens against the state.
Judicial Review Turned Inside Out
This inversion is precisely what we are witnessing now. Rather than the JSC being subject to judicial review for its actions, it is the JSC itself that has launched a judicial review, seeking to overturn the COI’s findings and to silence the public debate surrounding them.
In a democracy with a healthy constitutional order, that would be a deeply unusual step. Commissions of Inquiry are political and investigative instruments, and their findings are normally addressed by Parliament or executive action, not judicial quashing.
But in Khaiyum’s Fiji, where judicial review was stripped of its traditional safeguards and repurposed as a weapon, such a move is now not only possible but strategically advantageous.
The irony is stark: the very mechanism designed to hold power accountable is now being deployed by power to suppress accountability.
Contempt as a Weapon
Fa’s contempt warning is the logical next step in this strategy. By hinting that critics might face prosecution simply for commenting on a Commission report, the JSC’s lawyer is attempting to place public discourse itself under judicial supervision.
But contempt law is not a gag order. Its purpose is narrow and specific: to prevent acts that substantially interfere with the administration of justice, such as disobeying a court order, prejudicing a jury trial, or scandalising the judiciary through baseless attacks.
Criticising a Commission of Inquiry report, or the JSC’s decision to challenge it, does not meet that threshold. The COI is not a court. The judicial review is a matter of public interest, not a jury trial. And political leaders like Inia Seruiratu have a constitutional duty to hold state institutions to account.
Fa’s suggestion that such commentary “could amount to contempt” is therefore not a legal assessment. It is a strategic threat, one designed to chill public scrutiny and deter political criticism.
Fa’s words were chilling in their intent:
“Unwarranted and uninformed attacks on the JSC, on the Commission of Inquiry report, or on the judicial review process currently before the courts, using the news media or social media, could amount to contempt of court,” he declared.
“Those engaging in such conduct risk facing legal consequences.”
The message was unmistakable, aimed squarely at opposition leader Inia Seruiratu, civil society critics, and investigative journalists: “Shut up, or be jailed.”
But this threat is more than just legal sabre-rattling. It is the predictable culmination of nearly two decades of systemic legal engineering, a deliberate reshaping of Fiji’s judicial review system by former Attorney-General Aiyaz Sayed-Khaiyum. That restructuring was designed to blunt the courts’ ability to hold the executive accountable, while empowering state institutions to weaponise judicial processes against critics.
Today, that architecture is being deployed by Fa on behalf of the JSC, the very body meant to protect judicial independence, to shield itself from scrutiny and intimidate those who question its conduct.
A Chilling Warning to Parliament, and to the Public
Fa’s remarks came in direct response to comments by Opposition Leader Seruiratu, Rather than engage with those criticisms on their merits, the JSC’s legal counsel chose confrontation, suggesting that Seruiratu’s remarks and broader public commentary risk “interfering” with the court process.
Yet the COI report is not a judicial decision. It is a fact-finding exercise commissioned under statutory authority to examine the legality and propriety of Barbara Malimali's appointment, a matter of significant public interest. Its findings are not sub judice. They are, and must remain, open to vigorous public debate.
By casting such commentary as potential contempt Fa, on behalf of the JSC, is attempting something unprecedented: to police public discourse about JSC's own conduct. This is not about protecting the integrity of judicial proceedings. It is about controlling the narrative, and it sets a deeply dangerous precedent.
How Aiyaz Khaiyum Rewired Judicial Review
To understand how we got here, we must return to the era when Aiyaz Sayed-Khaiyum held almost unchecked control over Fiji’s legal system. From 2007 onwards, following the Bainimarama coup, Khaiyum embarked on a systematic campaign to rewrite the rules of judicial review, the centuries-old mechanism that allows courts to scrutinise the actions of public authorities.
Under the pre-2006 constitutional framework, judicial review was a robust, common law remedy. Citizens, civil society organisations, and Parliament itself could challenge unlawful executive decisions in the High Court. Judges had broad discretion to quash decisions, declare them invalid, or compel lawful action.
Khaiyum’s reforms changed all that. Through a series of decrees and constitutional amendments, he narrowed access to judicial review, curtailed judicial discretion, and carved out vast zones of government activity that were immune from court oversight. These included:
- Standing restrictions that made it harder for NGOs or individuals to bring public interest challenges.
- Short limitation periods (sometimes as little as 30 days) that barred late applications regardless of merit.
- Ouster clauses that removed whole categories of decisions, especially those linked to the 2006 coup, emergency decrees, or “national security”, from judicial scrutiny.
The effect was transformative. Judicial review ceased to be a powerful check on state power and became a tightly controlled procedural tool, often used more effectively by state institutions against their critics than by citizens against the state.
Judicial Review Turned Inside Out
This inversion is precisely what we are witnessing now. Rather than the JSC being subject to judicial review for its actions, it is the JSC itself that has launched a judicial review, seeking to overturn the COI’s findings and to silence the public debate surrounding them.
In a democracy with a healthy constitutional order, that would be a deeply unusual step. Commissions of Inquiry are political and investigative instruments, and their findings are normally addressed by Parliament or executive action, not judicial quashing.
But in Khaiyum’s Fiji, where judicial review was stripped of its traditional safeguards and repurposed as a weapon, such a move is now not only possible but strategically advantageous.
The irony is stark: the very mechanism designed to hold power accountable is now being deployed by power to suppress accountability.
Contempt as a Weapon
Fa’s contempt warning is the logical next step in this strategy. By hinting that critics might face prosecution simply for commenting on a Commission report, the JSC’s lawyer is attempting to place public discourse itself under judicial supervision.
But contempt law is not a gag order. Its purpose is narrow and specific: to prevent acts that substantially interfere with the administration of justice, such as disobeying a court order, prejudicing a jury trial, or scandalising the judiciary through baseless attacks.
Criticising a Commission of Inquiry report, or the JSC’s decision to challenge it, does not meet that threshold. The COI is not a court. The judicial review is a matter of public interest, not a jury trial. And political leaders like Inia Seruiratu have a constitutional duty to hold state institutions to account.
Fa’s suggestion that such commentary “could amount to contempt” is therefore not a legal assessment. It is a strategic threat, one designed to chill public scrutiny and deter political criticism.
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