Burness Case: Up-dates-scroll down

Australian judges not surprised at Fiji allegations

Updated August 18, 2011 16:15:50

Two Australian judges who have served in Fiji say they are not surprised by allegations of political interference in the legal system by the interim government.

Frances Douglas and Randall Powell were serving as Appeal Court judges in Fiji two years ago when they ruled, together with another Australian Judge, Ian Lloyd, that the coup installed military government was illegal.

This led to the sacking of the entire Fiji judiciary, the scrapping of the constitution and the President appointing himself head of state.

Mr Douglas and Mr Powell now say claims by Sri Lankan lawyer Madhawa Tenakoon about government influence in bringing prosecutions against people for political reasons are what they feared would happen all along.

Randall Powell says this sort of thing is likely under what he says is an unlawful legal system.

Presenter: Bruce Hill
Speakers: Frances Douglas, former Fiji Court of Appeal Judge; Randall Powell, former Fiji Court of Appeal Judge

POWELL: I’m not surprised by the allegations that under the current system after the constitution was reportedly abrogated it seems by its very nature the new system is not independent. Any judicial officer or any other office holder in Fiji will be well aware that any decision they make that displeases the military regime may likely result in their removal from office. Now they have to know that because of what happened in 2009 when the military government, of which Mr Sayed-Khaiyum was the Attorney General, purported to abrogate the constitution, in fact the whole of the judiciary because it didn’t like the decision that the Court of Appeal had found it was unlawful regime. So the Fiji military regime’s idea of an independent judiciary is one that does the government’s bidding. So it follows that any judicial officer would have to assume that a regime that was prepared to rip up the constitution, which you would know is a supreme law of any country, would be prepared to break any law, and to dismiss any judge or officer who displeased it.

HILL: Well Mr Sayed-Khaiyum says that he’s never issued any directive to any judge or prosecutor to find this person guilty or prosecute this person. He says he’s never done anything like that at all?

POWELL: Well he would say that wouldn’t he? But having said that, I mean he probably doesn’t need to. I mean the people he appoints are effectively appointed by him and they would know that if they start pursuing an independent line there can be consequences.

HILL: Frances Douglas says the Fiji justice system is extremely vulnerable given that Judges know what might happen to them if they hand down decisions the government doesn’t like.

DOUGLAS: Once you begin to sack judges because they’ve made a decision which is inimical to the interests of the government of the time, the whole system of justice is likely to begin to collapse, and I’m not surprised at the sort of allegations which are being made.

HILL: Did you fear that this kind of thing would happen in Fiji?

DOUGLAS: Well I think once you compromise the independence of the judiciary then all parts of the justice system are capable of being destroyed.

HILL: If an Australian or a New Zealand judge or prosecutor was offered a job in Fiji and approached you for advice, what advice would you give them?

DOUGLAS: I think it’d be very unwise for them to take a position. When I took a position there I looked at the matter very carefully and I was only asked to swear an oath to the constitution, but unfortunately since then the constitution has been trashed.

HILL: Randall Powell says any lawyer offered a government post in Fiji under the current circumstances might be guilty of treason.

POWELL: I suppose anyone taking up an appointment pursuant to one of these decrees would be taking up an unlawful appointment. Now if democracy is restored and the constitution is, well not revived, the constitution is there all the time, but it would seem to me that anyone accepting an appointment could well be guilty of treason.

HILL: I asked Frances Douglas if he believes Fiji still operates under the rule of law.

DOUGLAS: I don’t think I’m in a position to make a general statement about that, but if the allegations in relation to these matters which you’ve been broadcasting are true, it would seem that the rule of law is being substantially eroded. It’s very unfortunate because the Fijian people are very nice people, and it’s a very nice country. We’ve got long ties with them, long cultural ties, economic ties, and I’m sure it’s a situation which is capable of managed. One would like to see any sort of bilateral or possibly multilateral level, some approach to Fiji to try and curb the tension, see if we can get some of these safeguards reintroduced so that we all proceed merrily along as part of the British Commonwealth, which they once were, and it’s a good system of government for all countries, including Fiji.

Updated 8th November 2011

Up-date on Burness case.
The Burness case challenging the proposal of FNPF to reduce pensions already granted will now be heard on a preliminary matter on February 8th 2012.
Once this preliminary matter has been decided by the Judge, Justice Predeep Hettiarcchi, the main issue of whether the FNPF has the power or capacity to reduce pensions of the people already on them will be expedited.
At the moment counsel for David Burness, Dr Shaista Shameem is exchanging submissions and affidavits with counsel for FNPF and the Solicitor General on the preliminary matter which will continue the process already started in the High Court.
The preliminary matter has a bearing on what kind of class action is being contemplated by people who have filed their applications in the same issue.
Shaista Shameem
Counsel for Burness and Others,
Burness v FNPF, Republic of Fiji and Attorney General Case No HBC 183 of 2011.
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