3 Oct 2013

Critics of Fiji constitution warn judiciary is prey to political interference

6:06 pm on 3 October 2013

Critics of Fiji's new constitution says the country's judiciary is easy prey to political influence and amendments are needed to safe-guard it.

Fresh criticism of the document follows the release of the Fiji-based Citizen's Constitutional Forum's analysis of the constitution last month.

The group engaged constitutional law experts and the resulting 60-page report includes criticism that the constitution allows the Government to make political appointments within the courts.

The document replaces the 1997 constitution, which the regime discarded four years ago.

Amelia Langford filed this report.

In its analysis, the Citizen's Constitutional Forum says the constitution largely does away with the checks and balances of past constitutions. It says the most striking feature is that the Prime Minister has been granted unprecedented power to appoint or remove, directly or indirectly, almost every commission or office. The Forum says that's at the expense of Parliament, supposedly independent commissions and the judiciary. It says the Attorney-General has also been given remarkable and wide-ranging powers, including influence over all judicial appointments. An Australian-based constitutional lawyer, Anthony Regan, says the judiciary's independence needs to be carefully protected.

"ANTHONY REGAN: This constitution establishes a Judicial Services Commission which is controlled by the Government. It is made up, basically, of appointees of the Government. Further, the Chief Justice and the President of the Court of Appeal, the two highest courts, are political appointees. They're not even appointed through the Judicial Services Commission."

Anthony Regan was part of a international group who peer-reviewed last year's draft constitution drawn up by the commission, led by Yash Ghai. That draft was dropped by the regime in January in favour of its own constitution. Mr Regan says it will be virtually impossible to amend the constitution after December and that reflects the regime's deep distrust of democracy.

ANTHONY REGAN: Here we have a system where the Government is already very close to the military so repression is a serious threat and in a situation where there's no real possibility of constitutional change, it ends up being a recipe for pressure for coups.

Anthony Regan says the most obvious amendments should free up the electoral and judicial systems from political influence. But Mr Regan says the new document does have some good points including its human rights provisions. A New Zealand-based Fiji academic is also worried the constitution gives the Prime Minister and Attorney-General too much power over the courts. Dr Steven Ratuva says the independence of the judiciary could be significantly compromised.

STEVEN RATUVA: The judiciary is supposed to be one of the pillars of a transparent and just society in a new democracy and once you have political influence on how it functions then it will destabilise the system.

Dr Ratuva, from the University of Auckland, also says the constitution could lead to another coup.

STEVEN RATUVA: The constitution does not allow for amendment of those provisions. Instead of eradicating possibilities of another coup, it's basically encouraging it because if you have a constitution that is difficult to amend then the only other alternative, basically, is to use force.

A spokesperson for the Citizens' Constitutional Forum, Rodney Yee, describes the document as draconian.

RODNEY YEE: For us, the constitution does not provide for the kinds of freedoms that are needed for true democracy and a sustainable one and also if you are going to look at changing it you must have provision for amendment to make the document a living document.

Rodney Yee could not talk about the threat to the judiciary, as the forum has been convicted after contempt of court proceedings brought by the regime. The regime's new constitution has prompted protests around the world, including Australia and New Zealand. Australia's chapter of the Fiji Democracy and Freedom Movement burnt the constitution, while New Zealand's tore the constitution to pieces. The burning echoes the regime's action to burn the Yash Ghai draft last year. A spokesperson for the Wellington group, Sai Lealea, says the protest was a symbolic gesture to demonstrate publicly that the constitution is not a document for the people.

SAI LEALEA: People are not fooled. They know exactly what the whole thing's about. You know, you try and make it appear as if they've got checks and balances. People who have looked at the constitution quite closely will know it's all designed to favour them, you know, to keep them in power.

And a former Fiji constitution writer and academic says the new constitution does nothing to lessen the cloud already hanging over the independence and impartiality of the courts. Brij Lal, who co-authored the 1997 constitution, says the new document allows the government's chief legal advisor power to influence key appointments, such as the Chief Justice.

BRIJ LAL: Given what has happened in Fiji in the last four, five years or more, people are skeptical about any involvement of the Attorney-General in the appointment of senior office holders in the country's judiciary.

Brij Lal says there should be a clear separation of power so the people of Fiji can have confidence in their own system. The Government could not be reached for comment. But, the Attorney-General has previously told media that those who continue to object to the new constitution are trying to hinder efforts of preparing for the 2014 general elections. Aiyaz Sayed-Khaiyum also says the regime has received good feedback about the document from the international community.