Identifier
Created
Classification
Origin
07SUVA333
2007-06-26 18:50:00
CONFIDENTIAL
Embassy Suva
Cable title:  

FIJI UPDATE: TROUBLE WITH THE LEGAL SYSTEM

Tags:  PREL PHUM MARR ASEC CASC KJUS FJ 
pdf how-to read a cable
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RR RUEHPB
DE RUEHSV #0333/01 1771850
ZNY CCCCC ZZH
R 261850Z JUN 07
FM AMEMBASSY SUVA
TO RUEHC/SECSTATE WASHDC 0131
INFO RUEHBY/AMEMBASSY CANBERRA 1721
RUEHPB/AMEMBASSY PORT MORESBY 1293
RUEHWL/AMEMBASSY WELLINGTON 1488
RUEHNZ/AMCONSUL AUCKLAND 0464
RUEHDN/AMCONSUL SYDNEY 0871
RHHMUNA/HQ USPACOM HONOLULU HI
RHHJJAA/JICPAC HONOLULU HI
C O N F I D E N T I A L SECTION 01 OF 02 SUVA 000333 

SIPDIS

SIPDIS

E.O. 12958: DECL: 06/27/2017
TAGS: PREL PHUM MARR ASEC CASC KJUS FJ
SUBJECT: FIJI UPDATE: TROUBLE WITH THE LEGAL SYSTEM

REF: SUVA 325 AND PREVIOUS

Classified By: Amb. Dinger. Sec. 1.4 (B,D).

Summary
-------
C O N F I D E N T I A L SECTION 01 OF 02 SUVA 000333

SIPDIS

SIPDIS

E.O. 12958: DECL: 06/27/2017
TAGS: PREL PHUM MARR ASEC CASC KJUS FJ
SUBJECT: FIJI UPDATE: TROUBLE WITH THE LEGAL SYSTEM

REF: SUVA 325 AND PREVIOUS

Classified By: Amb. Dinger. Sec. 1.4 (B,D).

Summary
--------------

1. (C) It appears that Fiji's interim President, Commodore
Bainimarama, Justices Gates and Shameem, and others are
making moves to reconstitute the Fiji judiciary. The
suspension of Chief Justice Fatiaki in early January, the end
of some expat Appeals Court Justices' terms, and several
suspicious recent judicial appointments may affect eventual
judgments in a stream of cases now entering the courts to
challenge last December's coup. This month, prior to leaving
the bench, President of the Appeals Court Gordon Ward and
colleagues are deciding a number of interesting cases.
Justice Gates' 2004 conviction of a high chief related to the
army mutiny in 2000 was overturned and a retrial ordered.
The acquittal of former PM Rabuka on charges also related to
that mutiny was affirmed. On the other hand, a case by a
human-rights activist seeking to bar military intimidation
may be giving a sense of the capacity of the interim
government and interim judiciary to influence court
proceedings. End summary.

A vacuum forming in Court of Appeals
--------------

2. (C) The Fiji Court of Appeals has been sitting in June,
attempting to resolve a series of pending criminal cases
before the terms of a number of the justices expire in July.
The Court of Appeals only sits twice a year for a month or
so. Nearly all Court of Appeals justices in recent years
have been expats, most from Australia and New Zealand. The
current President of the Court of Appeals, Gordon Ward, is a
Brit, though with long island connections. Historically,
Fiji has reappointed many Court of Appeals judges for
multiple terms. After the December coup, Ward and most of
his colleagues decided they would stay in place to attempt to
provide a stable judicial climate, but they could not in good
conscience accept reappointment from an "illegitimate
regime." When they retire next month, there will be a severe

shortage at the appellate level. A rumor is spreading that
Justice Nazhat Shameem, who reportedly encouraged coup
plotters, may be named Ward's replacement.

More problems: the CJ and the JSC
--------------

3. (C) The military suspension of Chief Justice Daniel
Fatiaki in early January adds to the problem. Aside from
serving as a trial judge, the CJ heads the Supreme Court, the
ultimate arbiter of justice above the Court of Appeals. The
interim government has yet to name the promised independent
tribunal to look into allegations of malfeasance against
Fatiaki. In the meantime, military-designated Acting Chief
Justice Tony Gates and the military-appointed interim
Chairman of the Public Service Commission (PSC),Rishi Ram,
have pushed several judicial appointments through the
supposedly-independent Judicial Services Commission (JSC). A
former military lawyer has become a magistrate, and the
former CEO of Foreign Affairs, Isikele Mataitoga, who is
believed to have colluded with the coup plotters, has become
a high-court judge. Retired Justice John Byrne, a friend of
Gates, has been brought back on active duty. Not
surprisingly, a case has begun in the courts challenging the
legality of the interim-JSC process.

Interesting judgments upset Gates and Bainimarama
-------------- --------------

4. (C) Judgments from the Court of Appeals' June sitting are
starting to appear. A three-judge panel ordered a retrial
for a high Fijian chief who was given a life sentence by
Justice Gates in 2004 for assisting a mutiny against the
military in November 2000. That mutiny narrowly missed
killing Bainimarama. The appeals panel heard evidence that
Gates told people at a cocktail party prior to the trial that
he would "put away" the chief. Accepting the evidence that
Gates had pre-judged, the panel released the chief, pending
retrial. Interim PM Bainimarama reportedly blames Ward for
freeing the chief, one of Bainimarama's bitterest opponents.
Another appeals panel confirmed the recent acquittal of
former PM Rabuka on 2000-mutiny-related charges. Interim AG
Sayed-Khaiyum suggested the appeals judgments rebut
allegations that the judiciary has become politicized. Only
last week, though, Sayed-Khaiyum was calling for Justice Ward
to resign instantly for having urged Mah Weng Kwai from the
LawAsia society not to accept the chairmanship of the interim

SUVA 00000333 002 OF 002


government's commission against corruption.

Interfering in human-rights case?
--------------

5. (C) Another court case is also causing a stir.
Human-rights activist Angie Heffernan sought a permanent
injunction to forbid the military from hassling her. A trial
judge granted a temporary injunction. Justice Byrne,
assigned to court-of-appeal duties by Gates while Ward was
out of town, heard an "emergency" appeal from the State
without Heffernan's counsel present and stayed proceedings
concerning the permanent injunction. This week Heffernan's
counsel, John Cameron, a Kiwi/Aussie, was barred by Fiji
Immigration from entering the country to continue the case.
He intended to appeal to Justice Ward, in his last days on
the job, to overturn the Byrne stay. Immigration cited lack
of a work permit. Cameron noted the timing, recalled how he
has been practicing on occasion in Fiji for 20 years using
temporary, 14-day work visas, and alleged interference with
the judicial process. The Australian Government has
expressed concern.

Comment
--------------

6. (C) In the past, the Fiji judiciary has been seen as the
institution that can bring the nation back on a stable course
after a coup. That happened after 2000, in part through a
ruling by Justice Gates denying that coup's legitimacy and
affirming the Constitution. In the past, it did not appear
that coup makers attempted to remove judges or influence
judicial outcomes, though Justices Gates, Shameem, and Byrne
took great offense in 2000 when then-President Ratu Mara
sought and received advice from then-CJ Tuivaga and Justice
Fatiaki about legal options for resolving that coup mess.
Since December 2006, there appears to be a direct attempt by
Bainimarama, interim AG Sayed-Khaiyum, and Justices Gates and
Shameem to reconstitute the judiciary. With challenges to
the coup now beginning to percolate up through the courts, it
is not at all clear that the Fiji judiciary will be as
staunch in defending constitutional anti-coup principles this
time as it was in the past.
DINGER