Identifier
Created
Classification
Origin
08SUVA19
2008-01-24 10:47:00
CONFIDENTIAL
Embassy Suva
Cable title:  

FURTHER EVIDENCE OF POST-COUP PROBLEMS IN FIJI

Tags:  PREL PGOV CJAN PHUM FJ 
pdf how-to read a cable
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ZNY CCCCC ZZH
P 241047Z JAN 08
FM AMEMBASSY SUVA
TO RUEHC/SECSTATE WASHDC PRIORITY 0269
INFO RUEHBY/AMEMBASSY CANBERRA 1913
RUEHPB/AMEMBASSY PORT MORESBY 1458
RUEHWL/AMEMBASSY WELLINGTON 0029
RUEHNZ/AMCONSUL AUCKLAND 0582
RUEHDN/AMCONSUL SYDNEY 0992
RHHMUNA/HQ USPACOM HONOLULU HI
RHHJJAA/JICPAC HONOLULU HI
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
-------
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