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
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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
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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
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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
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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?
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6. (C) Leung insisted the appointment of Gates was illegal.
Shameem's assumption of the "Chairperson" role of the

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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
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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