Confidence in the criminal justice system and especially in the independence of the judiciary is the bedrock of any functioning democracy. Yet that confidence is currently being eroded in Fiji by the delay in the convening of the Judicial Services Commission tribunal hearing into the allegation of “misbehaviour” laid against the Solicitor General, Sharvada Sharma, by the Supervisor of Elections, Mohammed Saneem.
The nature of that “misbehaviour” hasn’t been made public and incredibly, even the fact that Saneem is the person who lodged the formal complaint has been withheld and not a single Fijian media organisation has reported it. The Attorney General, Aiyaz Sayed-Khaiyum, dodged questions in the parliament about the issue in the September session, at one stage telling Ro Filipe Tuisawau not to believe what “Graham Davis is writing from a little room in Sydney” as the sole source of the story to this day. But it is the truth. And it is scandalous that the information is being kept from the public and that the AG misled the Parliament with his evasiveness.
What has been reported is that the Solicitor General was suspended without pay on Monday, September 20, and escorted from his office after ten years of blemish-free service over the failure of the State’s case brought by Mohammed Saneem to debar the SODELPA MP, Niko Nawaikula, from the parliament for failing to use his birth name in successive elections. That is the extent of the reporting thus far. But Grubsheet understands there was high drama on Level 7 of Suvavou House, with Sharvada Sharma in tears as he was removed from the building and his designated successor, State Solicitor Preetika Prasad, also visibly upset by the enormity of what had happened and the daunting task of assuming the SG’s duties under such dramatic circumstances.
Incredibly, it will be seven weeks tomorrow (Monday Nov 7) since the SG’s suspension and still there is no word on the precise nature of his alleged “misbehaviour”, who brought the charge against him in the Judicial Services Commission, and still no date set by the Chief Justice, Kamal Kumar, for the Tribunal hearing that will determine his fate. The wheels of justice turn slowly – as the old saying goes – yet in this instance, appear to have ground to a halt. There is dismay in legal circles about what has happened to the SG and the potential implications for the holder of any other office of state if Sharvada Sharma can be publicly humiliated, sent home without pay and left to fend for himself, with no knowledge of when the case against him will be heard.
First some background. The Solicitor General is listed as one of the “Independent Judicial and Legal Institutions” in the 2013 Constitution – Fiji’s supreme law – and like other such office holders, can only be removed for an inability to perform his functions or “misbehaviour”, though what constitutes misbehaviour isn’t defined.
In the case of alleged misbehaviour, the Constitution provides for the President, acting on the advice of the Judicial Services Commission, to establish a tribunal consisting of a chairperson and “not less than two other members who hold or have held high judicial office” to investigate and report back to the President on its findings and for those findings to be made public. The Constitution doesn’t stipulate a timeframe for this process, which is why there is no legal imperative to move with any haste. Yet it is clearly a denial of natural justice to suspend anyone from high office without pay and allow the process to drag on.
Grubsheet understand that Sharvada Sharma’s current seven-year contract as SG expires early next year. Is the process of hearing the charge against him being dragged out until his term in office expires and any Tribunal hearing becomes moot? It’s understood that before he was suspended, Sharma was asked to resign. But he did not oblige then, and according to friends, will not oblige now and intends to see the process through.
While the precise nature of Mohammed Saneem’s complaint against the SG hasn’t been made public, it’s understood that it relates to Sharvada Sharma telling the Supervisor of Elections that the grounds on which he was trying to have the courts remove Niko Nawaikula from the Parliament couldn’t be sustained in law. Part of the SG’s job is to represent the State in court in any legal proceedings to which the State is a Party and that includes the Elections Office. As a former Permanent Secretary for Justice, Mohammed Saneem regards himself as something of a legal expert and indeed has aspirations to be a judge. But were the riding instructions he gave Sharvada Sharma deficient in law to the extent that Sharma refused to argue them before the Chief Justice? We won’t know until the Judicial Services Commission Tribunal delivers its findings. Yet in any event, the State case failed, Justice Kumar ordered the reinstatement of Niko Nawaikula to the Parliament and made unflattering observations about the deficiencies in the state case and of the Supervisor of Elections that enraged the notoriously prickly Saneem. In high dudgeon, Saneem is understood to have gone to the Attorney General, Aiyaz Sayed Khaiyum – who was evidently equally aggrieved – and the decision was made that Saneem lodge an official complaint of “misbehaviour” against the SG with the Judicial Services Tribunal.
Aside from the injustice of keeping Sharvada Sharma hanging for the past seven weeks and counting, it is clearly not in the public interest for such an important matter to remain unresolved or for the issue to fester. Without risking a charge of bringing the judiciary into disrepute by criticising the Chief Justice for the delay in convening the Tribunal, it is not an offence to make the general point that confidence in the independence of the judiciary and the position of Chief Justice is paramount in a democracy and any loss of public faith in the credibility of the judiciary is a matter of broad community concern.
Every Fijian is entitled to expect that anyone holding the position of Chief Justice upholds the principle of the independence of that office, and especially from the government of the day. We all look to the current Chief Justice to uphold that principle in the same way that all of his predecessors have done. So the following questions – that arise from information Grubsheet has received – are directed not at the Chief Justice but at the chief law officer of the State, Attorney General Aiyaz Sayed Khaiyum.
1/ Is it true that you have asked the Chief Justice to delay convening the Judicial Services Commission hearing into the allegation of misbehaviour against the Solicitor General?
2/ Is it true – as is widely speculated in senior legal circles – that the Chief Justice has been placed on a three-year contract or any short term contract rather than the tenured position other Chief Justices have had in Fiji to protect their independence?
3/ If indeed the Chief Justice is on a limited contract, what confidence can the Fijian people have that he is in a position to fully discharge his public duty to dispense justice without fear or favour?
These are questions that go to the heart of the credibility of the rule of law in Fiji. There is already considerable public disquiet that the FijiFirst government has severely curtailed the power of Parliament – the ultimate authority in the land – to demand accountability and transparency in the conduct of the nation’s affairs. Even the evasiveness of the Attorney General on the floor of the house in answering questions about the removal of the Solicitor General underlines this lack of accountability. But the credibility of the judiciary and public confidence in the independence of the Chief Justice is at another level of importance altogether. And any threat to that independence constitutes an assault on the rule of law and the very foundation of democracy.
Of course, Grubsheet has no expectation that the AG will answer the aforementioned questions. But he can be sure they will be foremost in the minds of the nation’s lawyers when they gather at the Intercontinental Resort on December 10 for the 23rd Attorney-General’s conference – the annual gabfest that has always been a vanity exercise for Aiyaz Sayed-Khaiyum. For the past decade, Sharvada Sharma had carriage of organising the event and choosing its speakers and while he will be absent this year, he is bound to hover over the proceedings like Banquo’s ghost. And the questions about the circumstances of his removal will dominate the corridor gossip, given the presence of Mohammed Saneem and the Chief Justice, along with the AG and the cream of Fiji’s legal elite. It’s incongruous enough that the AG would still insist on holding a black-tie dinner in luxurious surroundings this year while presiding over the economy of a beggar nation reeling from the Covid calamity. But he, the CJ and Saneem will come under the intense gaze of hundreds of eyes and raised eyebrows if the Solicitor General’s position isn’t clarified by then.
While he waits for the wheels of justice to turn and the opportunity to answer Mohammed Saneem’s complaint against him, Sharvada Sharma is said by his friends to be in good spirits now that the shock of his removal has dissipated. He retains warm relations with many of those he has worked with over the past decade. He has been financially able to weather the shock of being suspended without pay. He remains convinced that he has done nothing wrong and is determined to clear his name. And he hopes that whatever Tribunal the Chief Justice eventually assembles will give him a fair hearing.
Many observers – Grubsheet included – wonder how someone of the status of the Solicitor General can be removed in the manner he was with so little public comment. Why has the Fijian media been so silent on the issue? Why has the Fiji Law Society not issued a statement requesting an explanation for the delay in announcing a date for the Tribunal hearing? It all underlines yet again the prevailing climate of fear in Fiji under the FijiFirst government and its chief architect, Aiyaz Sayed-Khaiyum, and the importance of the Fijian people using their power in the secrecy of the ballot box next year to bring their punitive and capricious reign to an end.