FIJI UPDATE 1/17/07 - CONTROVERSY OVER ACTING

C O N F I D E N T I A L SECTION 01 OF 02 SUVA 000036 SIPDIS SIPDIS E.O. 12958: DECL: 01/17/2017 TAGS: PREL MARR PHUM PINR ASEC CASC FJ SUBJECT: FIJI UPDATE 1/17/07 - CONTROVERSY OVER ACTING CHIEF JUSTICE APPOINTMENT; LAUTOKA HIGH COURT REINSTATES FIRED OFFICIAL REF: SUVA 035 Classified By: DCM Ted Mann, per 1.5 (B) and (D) Summary -------------- ¶1. (C) The decision to appoint Anthony Gates to the position of Acting Chief Justice has created an uproar in Fiji's legal community. Chief Justice Fatiaki, recently placed on forced leave by the military government, called the action "a disgrace." He and lawyers we talked to were especially critical of High Court Justice Nazhat Shameem, who chaired the commission that appointed Gates. Judicial independence in Fiji may soon be a thing of the past. End summary. Interim Government Trumpets "Unanimous" Appointment of Acting Chief Justice -------------- -------------- ¶2. (SBU) The interim government said today that the appointment of Anthony Gates as Acting Chief Justice was based on a "unanimous" decision of the Judicial Service Commission (JSC). According to Section 132 of Fiji's constitution, "In the event of a vacancy in the office of the Chief Justice, or in the event of the Chief Justice being unable to perform his duties due to absence, illness, or other cause, the President may, on the advice of the Judicial Service Commission, following consultation by it with the appropriate cabinet minister, appoint another person...to act in that capacity." According to Interim Attorney General Khaiyum, all of those requirements were met. Khaiyum told the media that he had asked Nazhat Shameem as the "senior puisne (High Court) judge" to act as chairperson of the JSC. Shameem then convened the JSC meeting on Monday, July 15, citing the "voluntary leave" of Fatiaki and the need to designate a replacement. In addition to Shameem, the JSC consisted of the newly designated chairperson of the Public Service Commission, Rishi Ram, and the President of the Fiji Law Society, Devanesh Sharma. The three decided "unanimously" to appoint Gates. CJ Fatiaki Lashes Out Against Shameem, Gates -------------- ¶3. (C) Chief Justice Fatiaki lashed out bitterly at the appointment, telling radio and television media that the appointment was "a disgrace." His strongest comments were aimed at Shameem, who he accused of betraying his trust and that of the judiciary as a whole. Shameem knew perfectly well, said Fatiaki, that his absence was anything but "voluntary." She had no basis to convene a meeting to replace him. Fatiaki said that judges who support military rule are "cowardly and mercenary." Shameem told reporters she was "saddened" by Fatiaki's statement, but had no further comment. Law Society Up in Arms -------------- ¶4. (C) Law Society President Sharma told contacts at the Australian High Commission he went along with the appointment of Gates because "it was better to take someone from inside the High Court" than to have the military appoint a person from outside. Sharma reportedly believes that Gates will ultimately "do the right things" as Acting Chief Justice to preserve the independence of the judiciary. In comments today, Gates said the independent role of the judiciary would not change, and that the "final bulwark of liberty is the courts, the independent guarantor of freedom under the law." ¶5. (C) Former Law Society President Graham Leung told us the decision to appoint Gates was "shocking." He said Law Society President Sharma "had been deceived" into thinking that the appointment was temporary, in line with clear constitutional intent. But the fact there was a swearing in ceremony ("unprecedented for a temporary appointment") shows the interim government has something far more permanent in mind. Leung said other members of the Law Society are in the process of "disassociating themselves" from the JSC decision and said that a statement by the Society to that effect would be forthcoming. A Legal Appointment? -------------- ¶6. (C) Leung insisted the appointment of Gates was illegal. Shameem's assumption of the "Chairperson" role of the SUVA 00000036 002 OF 002 Judiciary Service Commission was itself unconstitutional. As long as he is still the Chief Justice and capable of fulfilling his duties, Fatiaki is the Chairman of the JSC. Moreover, if Fatiaki was really incapacitated, Justice Patik, not Shameem, should have acted as Chair of the JSC, as the most senior judge. Clearly, concluded Leung, the Attorney General asked Shameem to fill that role because of her demonstrated support for the military. (Note: Patik told us last week that he was very disturbed by the removal of Fatiaki, saying that it undermined judicial independence.) Stacking the Court? -------------- ¶7. (C) Leung said the military's objectives in having Gates named Acting CJ are obvious. The CJ has many prerogatives, including deciding which judges hear specific cases. Gates will ensure, he said, the Shameem or another judge favorable to the military hears any future cases regarding the legitimacy of the actions of the military. A Concrete Example of Why This Matters - Lautoka High Court Reinstates Fired Official -------------- ¶8. (C) The Lautoka High Court judge, Justice John Connors, ruled today that ousted CEO of the Sugarcane Growers Council, Jagannath Sami, could resume his duties pending a final court decision on his dismissal by the military. Despite Connors' ruling, Sami was turned away from his office by soldiers this afternoon. Interim Attorney General Kyaiyum, however, said the interim government would abide by the High Court decision. Comment - Judiciary Under Attack -------------- ¶9. (C) Gates' appointment appears to be a blatant attempt by the interim government to undermine the constitution and, as Leung stated, "stack the court." It remains to be seen whether, when the military and its supporters are through, any semblance of a balance of powers will be left in Fiji. DINGER