The sustained assault on the integrity of the criminal justice system by the Coalition and its hand-picked Acting Chief Justice, Salesi Temo, has been one of the worst betrayals of a government that lied its way into power by one vote and thinks that constitutes a mandate to trash the constitutional furniture.
Two years ago, for instance, Christopher Pryde presided over the Office of the Director of Public Prosecutions and resisted pressure from FijiFirst and the then police commissioner, Sitiveni Qiliho, to go after Biman Prasad over the Taniguchi affair – the allegation that the NFP leader had sexually harassed the wife of one of his candidates. Had Pryde been biased in favour of the FijiFirst government, he could have easily proceeded to charge Prasad and irrespective of the outcome of the case, Prasad would have been tied up in knots in the courts and unable to contest the election that brought him to power.
On such decisions does history turn. But Christopher Pryde – to the great frustration of Aiyaz Sayed-Khaiyum and Sitiveni Qiliho – decided that the evidence before him did not meet the required standard that applies in any case – the likelihood of securing a conviction and whether a prosecution is in the public interest.
It wasn’t the first time that Pryde had faced down the FijiFirst leadership. He insisted, for instance, that charges be laid against the killers of Vilikesa Soko, who died when members of the security forces, including one of Frank Bainimarama‘s bodyguards, rammed a baton up Soko’s anus and a subsequent infection killed him. Bainimarama had pledged publicly that no-one in the military would be brought to account for the killing and Christopher Pryde came under intense pressure to drop the charges. But he faced down both the then prime minister and his attorney general and Soko’s killers were eventually jailed.
Roll on two years and what do we have now at the ODPP? A woman who believes in witchcraft and has precious little experience in the form of Nancy Tikoisuva as the DPP and a man who was found guilty of professional misconduct and lost his job as Acting DPP in the form of John Rabuku as her Deputy. And this is the change that the Coalition promised?
On any reasoned assessment, the state prosecution service has been trashed – Christopher Pryde suspended for alleged misbehaviour and his non-iTaukei assistants cast to the winds – Elizabeth Rice sacked by John Rabuku for being “white” and two other “European” ADPPs, Andrew Jack and Lee Burney, choosing to resign. The sole Indo-Fijian senior prosecutor, Jayneeta Prasad, saw the writing on the wall and also got out before any axe fell on her for a highly paid job at the Asian Development Bank. So that all that remains is an iTaukei cabal who have given each other jobs in one of the most glaring instances of nepotism in the “new order”.
Consider this. Last October – 10 months ago – the Acting Chief Justice, Salesi Temo, appointed John Rabuku to be the second Acting DPP since Christopher Pryde’s suspension the previous April (The first, Ratu David Toganivalu, died in office). But Temo chose Rabuku in direct violation of the Constitution, which specifically states that no lawyer can be DPP who has been found guilty of professional misconduct by the Independent Legal Services Commission. And John Rabuku has.
Temo faced down demands from the Fiji Law Society to uphold the law and resolutely stuck with Rabuku’s appointment. He even delayed removing him when three Supreme Court judges advised the cabinet that Rabuku’s appointment was unlawful. It has been a shocking episode that has compounded growing public dismay about the integrity of the criminal justice system in Fiji and has undermined confidence in the rule of law. Yet even when John Rabuku finally bowed to the inevitable and stood down as ADPP, something even more extraordinary has happened. He is now back at Gunu House as Deputy DPP with a Cheshire Cat- grin on his face that can’t conceal his glee at having had the last laugh on the Fijian people.
Chosen by Salesi Temo to be Acting DPP last October, John Rabuku hired Nancy Tikoisuva and another of his intimates, Laisani Tabuakoro, to be Assistant DPPs to replace the banished “whites”. Before he stepped down reluctantly to comply with the Supreme Court decision, he publicly nominated Nancy Tikoisuva to be his replacement. Tikoisuva was duly anointed by Salesi Temo wearing his hat as head of the Judicial Services Commission. And then during the week, Nancy Tikoisuva announced that John Rabuku was back at Gunu House as her deputy. How’s that for nepotism, Fiji?
And how’s that for defying the spirit of the law? John Rabuku can’t be Acting DPP in the absence of Christopher Pryde because the Constitution bars him due to his professional misconduct as a lawyer. But he can be the substantive Deputy DPP – a permanent position – because the Constitution doesn’t contain a clause barring him because of his professional misconduct.
Ain’t the law grand, Fiji? Can you imagine a deputy head of medical services who had been found guilty of professional misconduct relating to one of his patients presiding over our hospitals? Can you imagine a deputy auditor general who had been found guilty of professional misconduct for fiddling the books presiding over the nation’s accounts? Yet in Fiji, a lawyer who has been found guilty of professional misconduct in relation to one of his clients can be the deputy chief prosecutor with the power to decide whether you and I should be charged with misconduct.
It is a sick joke perpetrated by one man – the outlaw, Salesi Temo, who Sitiveni Rabuka and Siromi Turaga handpicked to be Acting Chief Justice and presides over the criminal justice system as head of the Judicial Services Commission. Justice Temo has degraded the offices of state and clearly believes he is unaccountable, ignoring, for instance, the Prime Minister’s public comments five weeks ago that Christopher Pryde’s salary should not have been cut off – another of Temo’s glaring violations of the law.
So the Acting Chief Justice has gone rogue and is demonstrably out of control, completely unconcerned whether his conduct is within the law or not. But there is one law over which he has no control – the law of unintended consequences. What happens when deciding a particular course of action doesn’t take into account the potential consequences. And all the signs are there, Fiji, that Salesi Temo is about to fall foul of the law of unintended consequences.
His decision to install John Rabuku as Acting DPP in violation of the Constitution is now being challenged in the courts by arguably the doyen of the Fijian bar – Devanesh Sharma of R Patel Lawyers, who is arguing that because Rabuku was unlawfully appointed, any decision he made in the 10 months he illegally occupied the position is null and void. This is how CFL-Fiji Village reported Devanesh’s Sharma’s statement to the court in the case he is defending on behalf of Aiyaz Sayed-Khaiyum and Mohammed Saneem:
Sharma…submitted that the Supreme Court had found that Rabuku was ineligible to hold the position of Acting DPP, and this means that any exercise of power by Rabuku as Acting DPP was also unlawful.
He says this included staffing appointments, in particular of Nancy Tikoisuva and Laisani Tabuakoro who were first appointed as consultants by Rabuku in the appeal by the State against Voreqe Bainimarama and Sitiveni Qiliho’s acquittal delivered in the Magistrates Court.
Sharma says they were later appointed as Assistant DPP, and Tikoisuva has now been appointed as Acting DPP.
He explained that any decisions made by Rabuku, including sanctioning of charges, appeals and other matters can be challenged in court following the Supreme Court’s decision.
What is the law of unintended consequences in relation to this? That every single thing that John Rabuku did in the 10 months he was Acting DPP can be challenged in the courts – whether it is one of the hundreds of prosecutions that would have crossed his desk or the appointments he made, including that of his successor, Nancy Tikoisuva.
Legal circles are abuzz about what this all means. And across Fiji, lawyers are closely watching what happens in the event that Devanesh Sharma’s launches legal action on behalf of his own clients and is successful. Because that would open the floodgates to potentially hundreds of people dealt with by John Rabuku to make the same application. It is a recipe for chaos in the courts and it is all down to the actions of one man – Salesi Temo – in thinking he could defy the Constitution without consequences. Yes, the law of unintended consequences catching up with the rogue Acting Chief Justice.
Incredibly, soon after Devanesh Sharma said all of this, Nancy Tikoisuva – the new/ latest Acting DPP who he submits was illegally hired by John Rabuku and who Rabuku personally nominated as his successor when his own position became untenable – announced that she had hired Rabuku as her own Deputy. Nothing that Sharma said constituted an amber light to Tikoisuva and her patron, Salesi Temo. That they were merely adding to the severity of the potential car crash that is coming in the courts because they have already run the red light of what is lawful under the Constitution.
What other conclusion can we reach but that none of these jokers – Salesi Temo, Nancy Tikoisuva, John Rabuku or Graham Leung, the Attorney General – give a damn about the supreme law. They all swore on the Bible to defend and obey the Constitution but simply don’t care whether they have broken their solemn oath. And they don’t give a damn what the rest of us think. They don’t like the supreme law and want to change it. And until they get what they want – on a mandate of just one vote on the floor of the parliament – they will do whatever they please.
Devanesh Sharma wants to disabuse them of that fantasy – that there is one law for them and one law for the rest of us. Every Fijian of goodwill should support him. Because there are already enough indications that Fiji is on a path to anarchy with the proliferation of drugs and a breakdown of public order. And if that anarchy extends to the criminal justice system – as it is showing clear signs of doing – Fiji is on the slippery slope to oblivion. A failed state where anything goes and the powerful lord it over the weak.
It is clear in the present Fiji that the more incompetent you are, the more dodgy background you have, with convictions, and if you are iTaukei you have all the right qualifications for a job in the judiciary and related jobs.
This is how you set high standards in Fiji because this is iTaukei country. They do things the right way. Now that they have wrested government from the vulagi, (by one vote) they must maintain high standards in accordance with the iTaukei scale. Their scales are far higher than the vulagi scales – for your information. With a dinosaur as PM and his standing in world affairs, as the chief world renowned beggar, what better time than now to change everything. This opportunity must not be missed.
So rightful said. We see injustice on daily basis . Indian out I taukei as replacements….. drum roll camera.
A vicious circle…
Before the iTaukei were not happy, so they quietly planned how to overturn the playing field all the while the others relished their new order and their heyday -appointing those from their kind including sunset clause agent CJ Gates and later the very junior and misbehaving Kamal.
Now the iTaukei are happy … they are trying to better the scenario for their people… unfortunately, the ‘others’ are not like ‘them’. They condemn everything proposed by the new government and Acting CJ and they even bite their own who side with the new government.
When will this ‘others’ and ‘them’ end in Fiji? Who needs to give in?
Reading through GRUBSHEET, the ‘them’ continue to carry sacks of bones from 1987 … check and see how many contribute to forgiveness and a new dawn…very little…many continue to brandish their hatred and wish negatively for the new government…SLR and Acting CJ.
The Legal Challenge to Cases by the Former DPP
The challenge to the legality of cases sanctioned or prosecuted by the former Director of Public Prosecutions (DPP), whose appointment was declared unconstitutional by the Supreme Court, raises significant legal and constitutional issues. This situation could have far-reaching consequences for the criminal justice system and the rule of law in Fiji.
Key Issues and Implications
1. Legality of Previous Prosecutions
o Void or Valid?: The central question is whether actions taken by the former DPP during their tenure are legally valid. If the appointment was unconstitutional, there is a legal argument that any decisions, sanctions, or prosecutions initiated by the former DPP could be void ab initio (invalid from the outset). This could lead to challenges against any convictions, charges, or legal processes that were carried out under the former DPP’s authority.
o Doctrine of De Facto Officers: However, the de facto officer doctrine may come into play. This legal principle holds that the actions of an official who appears to be in a valid position (but whose appointment is later found invalid) may still be considered valid if they were performed in good faith and without knowledge of the appointment’s defect. Courts often apply this doctrine to prevent chaos and legal uncertainty, ensuring that the work done by such an official remains intact despite the later discovery of an appointment flaw.
2. Impact on Convictions and Ongoing Cases
o Risk of Overturning Convictions: If the courts do not apply the de facto officer doctrine, there is a risk that previous convictions secured under the former DPP could be overturned. Defendants might argue that their prosecutions were invalid due to the unconstitutional appointment, leading to a reopening of cases or even acquittals.
o Delays and Disruptions: Challenges to the legality of cases could cause significant delays in the justice system. Courts would need to review and potentially rehear cases, which could burden the judicial system and delay justice for both defendants and victims.
o Potential for Appeals: Individuals who were prosecuted by the former DPP might appeal their convictions based on the unconstitutionality of the DPP’s appointment. If successful, this could lead to retrials or even the dismissal of charges.
3. Constitutional and Judicial Considerations
o Judicial Review: The courts will likely need to undertake a thorough judicial review to determine the legality of actions taken by the former DPP. This could include assessing whether the de facto officer doctrine applies and to what extent it can preserve the validity of prosecutions.
o Precedent Setting: The outcome of this challenge could set an important legal precedent in Fiji. If the courts rule that actions taken by an unconstitutionally appointed official are invalid, it could have wider implications for the legality of government actions taken under similarly flawed appointments.
o Public Confidence in the Legal System: The court’s handling of this situation will be crucial for maintaining public confidence in the legal system. A decision that upholds the validity of the former DPP’s actions could reassure the public that the justice system remains stable, despite the unconstitutional appointment. Conversely, a ruling that invalidates those actions could lead to a perception of legal instability.
4. Broader Implications
o Rule of Law: The challenge underscores the importance of adherence to constitutional processes. It also highlights the potential consequences when these processes are not followed, reinforcing the principle that the rule of law must be maintained in all aspects of governance.
o Future Appointments: This situation could lead to stricter scrutiny of future appointments to constitutional offices. The Judicial Service Commission (JSC) and other appointing bodies may need to ensure that all constitutional and legal requirements are meticulously followed to avoid similar controversies.
Conclusion
The challenge to the legality of cases prosecuted by the former DPP has the potential to create significant legal uncertainty and could disrupt the criminal justice system in Fiji. While the de facto officer doctrine may provide a legal basis for upholding past prosecutions, the courts must carefully balance this against the need to ensure that constitutional violations do not go unchecked. The resolution of this issue will be a crucial test of the judiciary’s ability to safeguard the rule of law while managing the practical implications of an unconstitutional appointment.
Your are right GD that this is a sick joke perpetrated by one person, the person is SLR, aided by none other than Biman, because he could have used his 5 seats to maintain integrity – and he chose not to. I don’t know Christopher Pryde , but depending on your definition of public interested, perhaps he was wrong about text messages that almost sunk Biman – the violation of public interest is only getting worse.
When you think about it, it is not members of the government who are at fault. It is the people of Fiji who want idiots to rule over them just so that the vulagi cannot get into government. Now that the vulagi government is out, they will do anything to keep them out even if it means dickheads are in government. That is exactly what we are seeing. And yes, Baimaan has played a big role for his own self-serving purposes. My opinion is that the people of Fiji deserve what is coming their way. Idiots always deserve what is coming their way.
GD
These clowns will not stop and no matter what anyone says it will not deter them.
Your articles and the information being shared will come in handy one day. Keep a record of all that you can and archive them safely.
That day will come when your reports and articles including any documents you have will come in handy and be used as evidence. It may be 5-10 years from now…but that day will ccome. Preferably in a court of law unless God gets to these jokers first.
And I don’t know what people still think that Rabuka is a changed person. He knows exactly what’s going on and is fully endorsing it.
The likes of Rabuka, Temo, Turaga, Tabuya, Vosarogo, Rabuku, Baimaan, and Co will come crashing down to earth or below it. They may be high flyers now and feel untouchable, but karma is a bitch and God has His ways too. It’s just a matter of time.
Patience.