Something rotten in the state of Fiji

Political matters are moving with bewildering speed in Fiji, something that was not apparent to me as recently as last weekend. I was there for a wedding and I saw no signs of impending political crisis on the streets of Nadi and Lautoka. Nor were there any hints in the paper, both the Fiji Times and the Sun led with the story of a fight over chiefly titles in one of the smaller islands. The only front page Fijian political story I brought back, actually originated in Australia and was about the military appointment of judges. However there was no sign of a judgement in the Qarase case, named for the last elected PM who was deposed in 2006.

Then in a matter of days, the country went haywire. On Thursday, judges ruled in favour of Qarase thus ruling “Interim Prime Minister” Bainimarama’s three year regime illegal. Yesterday the Commodore resigned and today the President went on radio where he sacked the judges and annulled the constitution. Barely pausing for breath, Bainimarama now claims he’s not behind it and the Fiji Human Rights Commission has accepted the President’s decision in a press release. “President Ratu Josefa Iloilo had no option but to annul the Constitution and appoint himself Head of State,” said the Commission.

The FHRC’s website is down at the time of writing, so I cannot confirm if the release was indeed as edited in the Fiji Times but it is safe to assume it was close enough. “The Commission understands that His Excellency felt that the Court of Appeal decision in the Qarase case left him... with no option but to abrogate the Constitution" said Commission head Dr Shaista Shameem.

The opposition movement Citizens Constitutional Forum also quoted Shameem on Thursday saying the President would “be aware of the need not to leave a political vacuum in Fiji and the Appeals court has only indicated to the President what it would be advisable to do so.” Assuming the “so” at the end of that quote adds no value, what I think Shameem meant is they advised the President to follow the CCF advice to call on him to appoint “distinguish[ed] people as caretaker Prime minister and ministers who are independent of this litigation and who can take the country to elections.”

These quick events are unlikely to lead to quick elections. Though the speedy chain of events has now been accepted in Suva, they have not been accepted elsewhere. The Fiji Islands have once again incurred the wrath of neighbouring giants. In Canberra, Prime Minister Kevin Rudd’s office called it an “abrogation” of the constitution while the Islands' other big brother New Zealand also condemned the sacking. According to the Australian Government, the Court of Appeal ruled the 2006 coup was invalid and that Bainimarama’s interim Government was illegal. Australia said Commodore Bainimarama was behind it all and said “elections should be held promptly.”

It would be difficult to describe 2014 as prompt but that is the timetable outlined by President Iloilo. It remains hazardous to predict what will happen next. Navy commodore Bainimarama still has the control of the armed forces. The Commissioner of Police Commodore Esala Teleni is also considered a staunch ally of Bainimarama.

The unknown is how much power does President Ratu Josefa Iloilo hold? At 88, he is the world’s oldest head of state. He was the paramount chief of the Vuda district of Ba in Fiji's northwest coast and he has been in the job of president for almost ten years. He has been elected twice (2000, 2005) to the position by the Great Council of Chiefs. When Frank Bainimarama seized power in December 2006 the commodore also briefly assumed presidential powers but gave them back to Iloilo a month later when he (Iloilo) agreed to give legal immunity to coup plotters. It is likely we are now seeing the fruit of their Faustian pact.

Human rights groups don’t distinguish between Iloilo and Bainimarama. When HRW issued their concerns about the slow return to democracy, they sent a letter to both of them. “We urge you [both] to ensure the swift transition to an elected government, and call on you and your officials to immediately and publicly make an unambiguous commitment that fundamental human rights will be respected and those who exercise them will be protected,” wrote HRW in 2007. Despite the recent rush of blood to the head, HRW’s complaint is still valid today and still unanswered.

UPDATE Saturday 11/4/09. Looks like Bainimarama is pulling the strings. This morning Iloilo re-appointed him "Interim" Prime Minister.

Australian Press Council throws out Fiji judge’s "main burden"

Today’s edition of the Fiji Times had an article about a recent Australian Press Council (APC) judgement of interest to the troubled islands. In truth, it wasn’t great journalism from the Times and deservedly had no by-line as it was almost a direct word-for-word steal from the council judgement itself. And the one addition by the Times sub-editor was mostly incorrect. The headline read “Judge’s gripe upheld”, however according to the APC, the gripe was dismissed “in the main burden”. Nonetheless the case is an interesting one, and one that says a lot about the murky world of the Fijian political and judicial system.

The case was brought by the Australian-born Justice Jocelynne Scutt, who is currently a judge of the High Court of Fiji. The WA-educated Scutt is a distinguished human rights lawyer and former Anti-Discrimination Commissioner for Tasmania. She raised the complaint with the APC about an article in The Australian published on 10 March 2008. This article by Nicola Bercovic was entitled “Judge criticised over Fiji posting”.

Bercovic’s story related how Scutt was appointed to serve on Fiji’s High Court in November 2007 hearing primarily on family law matters. Scott was offered the job after six expatriate judges from the Court of Appeal resigned the year before over concerns about the acting chief judge appointed by the supposedly “Interim” Bainimarama government. The article quoted Fiji Women's Rights Movement spokeswoman Tara Chetty who said they could not support any judicial appointments by the interim government. The article quoted two other prominent Australian lawyers who also questioned Scutt’s decision to take the role.

A few days later (APC says 15 March, but I can only find an article on 13 March), The Australian followed up with a second article from Chris Merritt entitled “Jocelynne Scutt named in human rights report”. This article gave some of Scutt’s background and then implicated her in “a major report on the rule of law in Fiji prepared by the International Bar Association's Human Rights Institute.” Merritt claimed that Scutt was involved in proceedings that were "a chilling use of judicial powers" against free expression. Scutt was unavailable to comment.

However my reading of the IBAHRI report (available here in pdf format) does not fully support Merritt’s insinuation that Scutt was responsible. In the matter cited, Scutt was one of three judges who had judicial concerns about a Fiji Sun article criticising the Interim government’s choice of judges. It was Justice Shameen who had four issues with the article but they did not find against the paper. Scutt did not comment and nothing further came of the case (though I agree it does have “a chilling effect”).

Merritt’s article and the IBAHRI report both quote Angie Heffernan, the director of Fiji's Pacific Centre for Public Integrity. Heffernan had called on Scutt to resign after she (Scutt) commended the Fiji Human Rights report which cast doubt on the credibility of the 2006 Election (and provided Bainimarama the excuse he needed to launch the coup). Heffernan said the report contents were now sub judice and Scutt compromised her position “reflect[ing] the disturbing developments within the judiciary since the December 5, 2006 military coup.”

Justice Scutt complained to the APC that The Australian articles were 'highly critical', 'highly defamatory' and 'damaging'. She sought a retraction of the published materials and the publication by the newspaper of an apology. She claimed her appointment was not political as it was made by the President of Fiji on the recommendation of a Judicial Services Commission and not by 'the military-backed regime'. However The Australian dismissed this complaint as “disingenuous” and the APC agreed.

They also agreed with the paper that Scutt’s high profile made her a genuine subject of public interest. Her acceptance of a judicial appointment in a country under the control of a military regime was a newsworthy story, it stated. It was also unimpressed by her claim that the fact the matter of judicial appointment in Fiji was currently sub judice meant the articles should not be published at all. The APC dismissed this by saying “[t]his provides no effective or convincing justification for her complaint.”

The APC was critical of The Australian’s initial inability to obtain a quote from Scutt prior to the publication of the first article. But even then they noted she declined to comment when finally contacted. "This refusal by Justice Scutt to provide comments based on her belief that, as a judge she was 'not able to speak on the matter'," wrote the APC, “did not preclude the newspaper from continuing to report, and comment on, her appointment.”

The only complaint upheld (and with it the dubious rationale for the Fiji Times headline) was that The Australian went too far linking Scutt with the military regime. These were the statements about "links with Fiji's military rulers" and "is involved with the military regime", which incorrectly implied collaboration with the regime. The APC said the newspaper offered no evidence to justify these statements. Nonetheless Scutt can take little comfort from the judgement. The current political situation in Fiji is too damaged for a truly independent judiciary to function properly. I agree with Greg Barns in another article in The Australian from August last year that Scutt should resign. “If she does that, she will be helping to restore democracy to Fiji and will enhance her standing in the eyes of her peers and the Australian community,” wrote Barns.

Media expulsions keep Fiji on the Commonwealth outer

The Commonwealth Ministerial Action Group (CMAG) has decided to continue the suspension of Fiji from its organisation. The 53-nation bloc readmitted Pakistan due to its recently elected government but decided Fiji would remain outside the pale. CMAG made the announcement in London saying it doubted Fiji would honour its intention to hold elections in the next 12 months. According to Commonwealth Secretary General Kamalesh Sharma, said that both judicial independence and freedom of the media were seriously compromised with media personnel being deported in contravention of court orders.

Fijian dictator Frank Bainimarana rebuffed the criticisms of his regime saying CMAG has failed to “recognise the realities in his country”. He said it was “most unfortunate” Fiji was being judged from a distance without taking the on-ground situation into account. Bainimarana lamented the fact that Fiji was not invited to the meeting to explain its position. "There seemed to have been insufficient effort to understand the practical difficulties of the situation in Fiji," Bainimarama said. However he did not explain his heavy-handed treatment of Fijian media including the expulsion of two Australian newspaper editors in three months despite court orders preventing the actions.

The latest Australian to be deported is Evan Hannah, publisher of the News Corp owned Fiji Times. Hannah was forcibly removed from his home in Suva on 1 May and taken to Nadi airport leaving behind his Fijian wife and young son. From Nadi, he was forced to board a plane to Incheon in Korea before finding a flight back to Australia. The extraordinary dogleg diversion was necessary because none of the local airlines would take Hannah aboard due to the court order explicitly forbidding his deportation. Only Korean Airlines were unconcerned by the writ of habeas corpus keeping him in Fiji. Hannah says the deportation order he saw says he breached his work permit but didn’t say why.

Australian foreign minister Stephen Smith expressed his outrage at Hannah’s treatment one day later. Smith said the Australian High Commission made urgent but unsuccessful representations to Bainimarana and his Foreign Minister to seek an explanation for what happened. Smith called it “unconscionable” that Fiji did not provide any notification or explanation to the Australian High Commission for Hannah’s summary detention and expulsion. “Equally outrageous,” continued Smith, “is the fact that the Fiji regime, despite repeated requests, did not allow appropriate consular access to Mr Hannah.”

Undaunted by the Australian rebuke, Bainimarana threatened further expulsions in the wake of Hannah’s forced departure. In a meeting with heads of news media and the Fiji Media Council in Suva, he refused to explain why Hannah was deported and said others were likely to follow. Bainimarana claimed that “the last thing he would want to do” is close down the media. He called on them to work with the government to move the country forward. Media representatives at the meeting wanted better responses from the government on various issues and agreed to meet Bainimarama on a monthly basis to iron out their differences.

The Hannah incident follows less than three months after the deportation of Fiji Sun editor Russell Hunter. Both were deemed a threat to national security and found guilty without trial of attempting to destabilise Bainimarana’s illegal regime. Both men were hustled suddenly out of the country leaving family behind and both deportations defied court orders forbidding the action. Reporters Without Borders condemned both actions saying “it seems that the summary removal of government critics is becoming the norm in Fiji.” But Bainimarana may not be able to shut everyone up; the Fiji Times retaliated a day after Hannah’s expulsion with the headline “we won’t shut up”.