“The guilty shall be convicted and the innocent shall be acquitted”, declared Fiji’s Director of Public Prosecutions, Christopher Pryde, in a recent address to the Fiji New Zealand Business Council. Stating the bleeding obvious – you’d imagine – except when doubts continue to be expressed about the independence and impartiality of the country’s judiciary. And especially when the most high profile case in many years is due to commence in Suva next week – the corruption trial of deposed prime minister Laisenia Qarase.
The regime’s opponents continually trumpet the notion that none of their number can get a fair trial in Fiji. Even those with no interest in politics suspect an overzealous pursuit of some regime critics, such as the celebrated “fish’n’chips” shop licence case mounted against celebrity couple Imrana Jalal and Sakiusa Tuisolia. Was Motibhai chief and Fiji Times owner, Mahendra Patel, unfairly targeted over the Post Office clock affair? Can Bread Shop queen Mere Samisoni get a fair trial over the alleged conspiracy to burn down Suva? Can union boss Daniel Urai get impartial treatment from the courts for the charges he’s facing of urging political violence against the regime? It’s a Suva dinner party staple and an issue capable of arousing strong emotions. Because with our British legal heritage, the independence of the judiciary from government and the right of every citizen to a fair trail is justly regarded as an inalienable right.
Next week, the system faces arguably its biggest test with the trial of Laisenia Qarase. Because no matter how well the case is run, no matter how transparent the process and whether Qarase is convicted on the evidence or acquitted, there will always be questions about whether the charges should have been laid in the first place. Even in some sections of government, there are concerns about how the trial will be perceived, based on the fact that Qarase evidently plans to contest the 2014 election as leader of the SDL. If he’s convicted, that won’t happen because – under the law – he’ll be barred from standing for public office for 10 years. So no matter what the outcome, it’s almost inevitable that the regime’s critics and sections of the international community will cry “stitch-up”. Indeed, there have evidently been diplomatic representations to drop the case altogether in the interests of not undermining the legitimacy of the 2014 poll. These diplomats apparently don’t see the irony of mounting such an argument when it’s clearly a case of putting politics above the law. But consistency hasn’t always been the strong point of Fiji’s critics and – as it is – justice will take its course.
The Qarase prosecution is being brought by FICAC – the Fiji Independent Commission Against Corruption – so Christopher Pryde, as DPP, isn’t in the driver’s seat. But he’s mounted a spirited defence of the system as the law officer who would normally decide whether enough evidence exists to mount any successful prosecution. In his speech to the Fiji NZ Business Council conference in Nadi, Pryde insisted that every decision he makes “ is completely independent of any direction from any person…including the Attorney General as chief legal advisor to Government”. In other words, he doesn’t take his orders – as some critics allege – from Aiyaz Sayed Khaiyum. “The decision to prosecute is made on objective criteria in the public interest and involves a two step process. First, is the evidence sufficient to sustain the charge; in other words, is there a reasonable prospect of a conviction? Second, is it in the public interest to prosecute?”, he said. Pryde also pointed out that it’s within his sole power to decide whether to discontinue a prosecution at any time.
The former New Zealand solicitor is a genial presence in Suva and few who come into contact with him will realise the sacrifices he’s made to assume his roles in Fiji – first as Solicitor General and now as the man who decides whether there’s enough evidence to throw the book at alleged law breakers. Pryde has been vilified by his fellow lawyers in NZ as a regime stooge and is regularly branded as “treasonous” for having served an “illegal” regime. Yet he passionately believes in the concept of fairness and access to justice for all, especially in times of national crisis, and hasn’t been prepared to turn his back on Fiji however intense the vilification that comes his way. As he explained to the Business Council gathering that included Aiyaz Sayed Khaiyum and Chief Justice Anthony Gates: “It is all the more important in times of uncertainty that the justice system is protected and strengthened. It is equally important that the justice system maintains its independence from the government of the day and is free to function unimpeded and unconcerned with the politics of the moment”, he said. Quite so.
Yet that principle is being eroded – not from within but from without -by those countries that, paradoxically, are trying to force Fiji back to an imperfect democracy by degrading its judicial system. In his speech, the DPP said this was the inarguable effect of the Australian and New Zealand travel bans on those who take up government employment, including judges. “The policy of travel bans on judges and on those senior members of the criminal justice system is wholly misconceived. (They) have the effect of undermining the criminal justice system by acting as an obstacle to employing locally qualified and experienced people to the bench who, because they have family in Australia or NZ or perhaps health problems that require trips overseas do not take up judicial appointment”, he said.
The DPP added that the bans were also counterproductive to the national interests of Australia and New Zealand. He cited the recent smashing of an international drug ring by Fijian and Australian authorities that led to the conviction and imprisonment of drug couriers from India and the United States. “On the one hand, we have every assistance provided to us at the agency level. But on the other hand, at the political level, we have a policy designed to prevent the efficient functioning of that same system that would prosecute and convict drug dealers”, he said.
Mr Pryde also blasted his fellow lawyers in Australia and New Zealand for their “hostile” and “highhanded” attitudes towards Fiji. “In Australia, for example, lawyers have been warned that they may face disciplinary proceedings if they take up legal positions in Fiji. In the case of the Office of the Director of Public Prosecutions, the NZ Law Society categorically refused to allow advertisements for prosecution positions in Fiji to be advertised in the Law Society magazine”, he said. While these actions are applauded by anti-regime critics, the DPP said they were “undermining human rights in Fiji by denying ready access to justice for victims of violent crimes or by prolonging the period alleged offenders are remanded in custody until a trial date can be assigned”.
Mr Pryde said the potential delays in the justice system arising from the travel bans and threats to lawyers harmed everyone in society who benefited from a properly functioning judicial system. “It is no argument that all will be well when we have elections. Tell the victims of crimes that they have to wait. It is interesting to note that during apartheid in South Africa, no travel bans were imposed on judges at any time and even in Fiji, following the Rabuka coup and the dismissal of the judiciary in 1987, none of the judges who subsequently took up judicial appointment were subject to travel bans. This is a wholly new and totally misconceived policy designed to intimidate the judiciary and ultimately deprive the people of Fiji of their democratic rights under law”, he concluded.
All this is often forgotten in the constant dinner party lament about the state of the criminal justice system in Fiji, of Sri Lankan judges who come and go, of magistrates barely out of short pants and the frustrations and delays invariably encourtered by anyone caught up in the system. “Justice delayed is justice denied”, goes one of the most famous of legal sayings, and that is the unfortunate legacy of Australia and NZ policy towards Fiji. Fortunately one Kiwi, in Christopher Pryde, is determined to be both independent and forthright and stand up to the pack.
This article has subsequently appeared in the Fiji Sun.
Grubsheet is also mildly astonished to find it on the anti-regime website Fiji Today.