FURTHER EVIDENCE OF POST-COUP PROBLEMS IN FIJI

C O N F I D E N T I A L SECTION 01 OF 03 SUVA 000019 SIPDIS SIPDIS E.O. 12958: DECL: 01/23/2018 TAGS: PREL PGOV CJAN PHUM FJ SUBJECT: FURTHER EVIDENCE OF POST-COUP PROBLEMS IN FIJI JUDICIARY REF: A. SUVA 013 ¶B. 07 SUVA 543 ¶C. 07 SUVA 536 ¶D. 07 SUVA 534 ¶E. 07 SUVA 416 ¶F. 07 SUVA 333 ¶G. 07 SUVA 123 ¶H. 07 SUVA 094 ¶I. 07 SUVA 020 ¶J. 07 SUVA 002 Classified By: Amb. Dinger. Sec. 1.4 (B,D). Summary -------------- ¶1. (C) One of Fiji's best judges, Roger Coventry (protect) has resigned early because of intense frustration about how other judges have "hijacked" the judiciary to their personal agendas in support of the December 2006 coup. Coventry has confirmed to us a long series of affronts to justice that are taking place in Fiji. See para 3 for details. Coventry sees no hope for short-term solutions, and his resignation reflects a desire not to lend legitimacy to those who are abusing Fiji's judicial system. When pressed for ways the international community might help, Coventry offers few options. He urges continued public expressions of concern about the current loss of credibility of the judiciary and continued public calls to adhere to proper judicial conduct. If reputable elections take place in March 2009, a curing of current judicial ills may begin, but even then deep schisms among judges could continue well into the future. End summary. Respected Fiji judge resigns in protest -------------- ¶2. (C) One of the most respected judges on the Fiji High Court, British citizen Roger Coventry (protect),has resigned a little over half way through his four-year contract. He has provided only limited public explanation, but privately he has made clear to us that frustrations with interim Chief Justice Gates and the post-coup judiciary are the reasons. Coventry believes staying on would only lend legitimacy to an illegitimate judicial process. He says, "we can no longer hold up the walls. Better to let it all fall down and start afresh." He decided to resign reluctantly, and "if things become acceptable again" he is "willing to return to help clear up the mess that is building up." But he doesn't expect that to be for a while. Judiciary highjacked; illegalities abound -------------- ¶3. (C) Judge Coventry confirms our past analysis (refs) that a deep schism between Justices Gates, Shameem, and Byrne on one side and Chief Justice Fatiaki on the other is central to the problem. It dates back to judicial roles at the time of the 2000 coup. Coventry says Gates and Shameem are "uncompromisingly set on their course," and "personal agendas take priority of considerations of justice." The two sides have "locked horns with fatal determination." "Matters have deteriorated significantly for those judges (like Coventry) who do not fall in either camp." "The atmosphere between those 'on board' and those not is strained and at times deeply unpleasant." Coventry notes a series of troubling issues: -- "There is a strong school of thought that the judiciary was deliberately hijacked (after the coup),and it was pre-planned. There is evidence to support this." -- A tribunal has begun sitting to consider interim-government charges against CJ Fatiaki. Fatiaki's challenges to the legality of the tribunal are "strongly arguable" and the merits of the case against Fatiaki "are not the strongest." Thus, "there is no urgency in the anti-Fatiaki camp to have the challenges resolved quickly." In any case, whatever the result it will end up on appeal. -- After many expat judges of the Fiji Court of Appeal resigned in September, that court now consists only of High Court judges from Fiji, chosen by a judge (Byrne) who has never sat on an appeals court before and "who is known to be in the anti-Fatiaki camp." Most of those chosen for appellate duty are post-coup judges who have no previous judicial experience. They are not Court of Appeals material. SUVA 00000019 002 OF 003 -- Byrne, acting as President of the Court of Appeal, has repeatedly overturned High Court judgments, pending appeal, sometimes without even giving notice to the winner at trial level. -- Coventry notes that the Court of Appeal "disbelieved" Gates under oath last summer (in an appeal heard before the expat judges resigned). Coventry says Gates "should resign or at least not take any part in judicial life until an appeal to the Supreme Court is resolved." An additional problem is that expat judges who might sit on the Supreme Court are "very uneasy regarding the present circumstances." -- Acting CJ Gates and Shameem have "strongly put out the position" that appointments and actions which, Coventry believes, are "clearly unconstitutional on their face are being presumed lawful until a court ruling. Any attempt to raise this question is rebuffed, and in an unpleasant way." "There is the clear feeling that time is being used to turn defacto into de jure" on coup-legality issues. Gates is engaged in "a deliberate policy to stifle discussion." -- Important constitutional and sensitive cases "are being kept away from non-collaborating judges, though a few got through by accident." -- The IG has taken "personal action" against judges who are perceived as not conforming: Appeals Court President Judge Ward's "house burnt down;" Judge Winter found the "wheel nuts on his car loosened;" Gates docked Coventry's pay when he had the audacity to attend a regional judicial conference in Tonga last November. -- Gates, Byrne, and (retired judge) Pathik are overseeing cases in which they should clearly recuse themselves. Those three are presiding over the Qarase case challenging the constitutionality of the IG. -- Coventry says, "There is serious concern as to the legal effect of judgments, sentences, etc., if appointments (to the judiciary) are later ruled unlawful. So what can be done? no obvious short-term solutions -------------- -------------- ¶4. (C) Given the plethora of serious flaws in the Fiji judiciary, what might be done to help? Coventry sees no hope for the short term, a big worry since the judiciary ought to be an "anchor point" as Fiji responds to the challenges related to the coup. We have consulted over time with Coventry about the Pacific Judicial Conference's decision last November in Tonga to offer the services of retired U.S. 9th Circuit CJ Cliff Wallace to assist Pacific Islands Forum (PIF) efforts to address Fiji's judicial quandary. (Embassy Suva helped stimulate that offer, which the IG has since rejected.) Since Coventry sees no willingness on the part of Gates, Shameem, or Fatiaki (for that matter) to bend, he has discouraged Judge Wallace from attempting an effort at this point. Long term: highlight concerns; press for lawful solutions -------------- -------------- ¶5. (C) Coventry prays that the uncertainty about Fatiaki's status can be resolved ASAP. If Fatiaki loses, Coventry hopes a government elected in 2009 will appoint an eminent expat CJ for at least four years to settle things down. If Fatiaki wins, Coventry proposes the Fiji government should appoint someone to sit alongside Fatiaki to "glue things together and stop revenge." Beyond the CJ issue, Coventry urges the international community to keep expressing concern about the current "loss of credibility in the judiciary," and to flag that what is unconstitutional on its face "must not be legitimated by lapse of time;" that the Fiji courts must not presume acts unconstitutional/unlawful on their face are OK until a court so rules; and to insist on an independent hearing ASAP on challenges to the IG's method of selecting new judges. In Coventry's first public comment at a Law Society farewell on 1/24, he urged lawyers to speak up on the importance of an impartial judiciary. Comment -------------- ¶6. (C) Justice Coventry has no problem describing a lengthy list of serious problems in the post-coup Fiji judiciary. During his tenure, he diligently attempted to maintain a properly judicial demeanor, and he handled a number of SUVA 00000019 003 OF 003 controversial cases very professionally, including several where he ruled against IG interests. Now that he has resigned and will depart Fiji 1/28, his personal floodgates have opened in private and to a limited degree in public. ¶7. (C) We have been pressing Coventry for several weeks to come up with concrete suggestions for ways in which the international community might contribute to near-term solutions for Fiji's judicial mess. He has no ideas for the immediate term, and Para 5 is all he has come up with for the loger-term: mainly for governments to keep pressing publicly for rule of law and judicial ethics to prevail. Doing so will irritate the IG, but unfortunately it will not likely correct current judicial problems. We had faint hope re Judge Wallace's willingness to mediate, but the IG has made clear it wants no outside eyes peering into the Fiji judiciary. The IG rebuff of a UN request last June for a visit by a special rapporteur on the judiciary was an earlier signal of the same "don't interfere" approach. ¶8. (C) If free and fair elections take place in March 2009 (a big if),a new, legitimate government might be able to address the judicial problem meaningfully. Even then, though, Gates, Shameem, and Fatiaki have permanent appointments to age 65, absent removal through constitutionally acceptable means. The Fiji judiciary may remain in a fractured state for many years. DINGER