Politicization of public institutions

The reaction to the coup from and within two quarters in particular perplexed the public. One was the Fiji Human Rights Commission (FHRC), especially its director, Dr Shaista Shameem. With a doctorate in sociology and a law degree from Waikato University in New Zealand, Shameem was well qualified for the position. She had long been at loggerheads with the Qarase government, which, she felt, had ignored her complaints about the unconstitutionality of some of its policies (such as the race-based affirmative action policy)[18] and had sought to politicize her office and thus undermine her effectiveness. Her reports were repeatedly disregarded. In a wide-ranging report on the coup, made on her own initiative, Shameem made a number of claims.[19] She argued that the Qarase government was founded on an illegality. After the 2000 coup, she asserted, the President had erred by appointing an interim administration headed by Laisenia Qarase, not Mahendra Chaudhry. Both the High Court as well as the Court of Appeal had ruled that the purported abrogation of the 1997 constitution was invalid; the Labour Coalition should have been restored to power. Between the judgement of the High Court and that of the Court of Appeal, the 2001 election had brought Qarase to power, making the issue moot. Nonetheless, Shameem argued, ‘the cases are still relevant for the important constitutional principles that the courts established’.

The army was not the culprit, Shameem asserted. The real culprit was the GCC ‘which not only acted against the decision of the Court of Appeal in the Chandrika Prasad case, [but] emasculated the ability of the RFMF Commander to act in the national interest according to section 94 of the 1990 Constitution as imported into Section 112 of the 1997 Constitution Amendment Act’. But the military had not been as innocent nor as restricted as Shameem implies. To the contrary. While it expected President Iloilo to respect the spirit of the constitution, the military wrote to him after the 2000 coup saying that ‘as a matter of national interest we cannot afford to have Mr Chaudhry and his group back’.[20] For the military, preserving law and order, which might be jeopardized if Chaudhry were returned to power, took precedence over constitutionalism.

Shameem also wrote scathingly of the Qarase government, which, she argued, ‘did everything in its power to undermine the Constitution, especially the entrenched Bill of Rights’. The government’s race-based affirmative action policies were in breach of the constitution, Shameem said, as was its tolerance of hate speeches and racially inflammatory remarks – by Minister for Women Asenaca Caucau, for instance, who called Indo-Fijians ‘noxious weeds’ – and its support for various pieces of legislation designed ultimately to grant amnesty to the 2000 coup plotters and perpetrators. The promulgation of the controversial Qoliqoli and Land Tribunal Bills ‘would have the effect of removing the constitutionally protected property rights of at least 50 per cent of the population and also causing havoc and potentially serious violence among the indigenous population’. In short, Shameem argued,

The Qarase Government was involved in massive violations of human rights in Fiji, constituting crimes against humanity, and made serious attempts to impose ethnic cleansing tactics in Fiji. The Commission attempted to thwart such inroads into constitutionality by a combination of persuasion and warnings, but ultimately, its funding was reduced, and even foreign government funding politicized by adverse reports on the Commission’s investigations and analysis of government’s abuse of human rights and fundamental freedoms.

Some of the force of Shameem’s case was vitiated by the sharp rhetorical excesses of her prose. ‘Ethnic cleansing’ and ‘crimes against humanity’ do not ring true to me nor correlate with reality in Fiji. Ethnic discrimination, distasteful though it always is, cannot be equated to ‘ethnic cleansing,’ or to the wrenching violence invariably associated with it (as in former Yugoslavia or Rwanda).

On legal and constitutional matters, Shameem’s judgements have been questioned. A response prepared by a group of senior Fiji lawyers and released anonymously to the public (for fear of retribution by the military) accused Shameem of being innocent of fundamental constitutional principles. They rejected her interpretation of the ‘Doctrine of Necessity,’ adding that as a ‘matter of law, the doctrine of necessity cannot be invoked or taken advantage of by the persons who create or precipitate the necessity’. They disputed her understanding of the constitutional role of the military in the public life of Fiji. Instead of being the supreme arbiter of the national interest, the military operated under civilian control. The Qarase government was not as unresponsive to criticism and public opinion as Shameem alleged. Were the elections unfair? The lawyers argued that the general elections ‘were the most transparent and closely observed in the country’s history’. They were as robust in their response as Shameem was in her report:

What emerges from the Report is a pathological dislike of Prime Minister Qarase and his two Governments. The tragedy is that in confusing the latter with its apparent approval of the RFMF’s perspective in relation to its own actions, the Report has compromised the Fiji Human Rights Commission and Shameem’s own standing as well as set back the cause of human rights in Fiji.[21]

That it, sadly, has done. Even Shameem’s ardent supporters, equally vocal on the sidelines, enjoin circumspection and tactfulness in public discourse and urge a repairing of the harm to the image and reputation of the Human Rights Commission. In the present circumstances, that seems a difficult task. Emotions are too aroused and wounds too raw for calm to return anytime soon.

Another institution similarly embroiled in controversy after the coup was the judiciary. The causes of the division in it go back to the aftermath of George Speight’s attempted coup in May 2000. Differences arose in the judicial ranks over Chief Justice Timoci Tuivaga’s advice supporting the military’s proposal to abrogate the 1997 constitution in order to resolve the impasse.[22] In this stance, he was reportedly supported by two fellow judges, Michael Scott and Tuivaga’s successor as chief justice, Daniel Fatiaki. Justices Nazhat Shameem[23] and Anthony Gates opposed the advice. With time, coalitions formed, feelings on the bench hardened and rifts deepened. Bainimarama’s coup provided Fatiaki’s opponents within the judiciary and outside it, the opportunity to derail him. On 15 January 2007, the interim administration sent Fatiaki on enforced paid leave, pending an investigation into ‘the involvement of certain members of the judiciary in the events of 2000, the subsequent politicisation of the Judicial Bench, in particular the Magistracy and numerous instances of corruption, irregularities and gross inefficiency in the Judiciary’.[24]

The suspension of the Chief Justice is one issue of concern. There are others, including, especially, the manner in which his successor was appointed. Sensing public disquiet and confusion, on 6 December 2006 the judges of the High Court issued a statement reassuring the public that they remained ‘committed to their judicial oaths to uphold the Constitution and do right to all manner of people in accordance with the law’, and that they would uphold the rule of law and that all courts would remain open and accessible to the public as normal.[25] Subsequently, with Fatiaki on leave, the Judicial Services Commission – which appoints judges and magistrates and is chaired by the Chief Justice – was convened by Justice Nazhat Shameem, with the president of the Fiji Law Society, Devenesh Sharma, in attendance. It appointed Anthony Gates as acting Chief Justice. Shameem justified her assumption of the Chair of the Commission on the grounds that she was the most senior substantive puisne judge of the High Court, next in line of seniority to Fatiaki himself. Criticizing Gates’ acceptance of the appointment as a ‘breach of trust,’ Fatiaki said:

They could have called me but they did not. Why did the Attorney General ask another judge to call a meeting of the Judicial Services Commission? The meeting for the Commission is only supposed to be convened by the chair of the Commission which is the Chief Justice. It does not mean that if I am on forced leave, that I cannot come in and call a meeting of the Commission.[26]

That view, perfectly reasonable, was not the point: Minds had already been made up that Fatiaki should go. The matter is before the courts, though in the opinion of at least one distinguished lawyer, the appointment of Anthony Gates as acting Chief Justice was in breach of the constitution.[27]

Tension within the judiciary aside, there is also concern at the legality as well as the calibre of people appointed to the bench. The appointment of a former military lawyer, Major Ana Rokomokoti, as magistrate generated controversy about her experience and suitability for the position and spawned (probably exaggerated) fears about the military making judicial appointments of people sympathetic to it.

There is similar concern being expressed about the civil service. The Fiji civil service was once widely admired for its impartiality and integrity, but it has suffered a mixed fortune since the coups of 1987. In the years that followed, a concerted effort was made to ‘Fijianize’ it.[28] As senior Indo-Fijian civil servants migrated or resigned in frustration, Fijians were appointed as replacements, not necessarily on seniority or merit but because of their ethnicity and family or political connections. More recently, an effort had been made, with the appointment of CEOs, to re-introduce professionalism into the service. But after 5 December, a number of senior civil servants were either sacked or sent on leave because of their alleged closeness to the Qarase government and because of doubt about their loyalty to the interim administration.[29] Some were sacked because of alleged mismanagement and corruption, none of it proven so far. The travel bans imposed by Australia and New Zealand will discourage replacements from outside.

The drain of talent and experience is one problem plaguing the civil service. Another is its collapsing morale. A number of senior military personnel have been transferred into the service in recent months, blurring the line between the military and the civil service. Among them are Captain Esala Teleni as commissioner of police, Captain Viliame Naupoto, as head of the immigration department, Lieutenant Colonel Ioane Naivalarua as commissioner of prisons and Lieutenant Commander Eliki Salusalu as manager of the government IT centre. Land forces commander Pita Driti is to be Fiji’s new High Commissioner to Malaysia, if Malaysia accepts him, and his chief-of-staff, Mason Smith, is earmarked for Fiji’s mission to the United Nations. The appointment of military personnel to civil and diplomatic service is not new in Fiji. After the 1987 coups, a number of senior military personnel were appointed to the public service, some even as district commissioners.[30] None of them were spectacular successes. Their appointments caused bitterness and frustration among senior civil servants bypassed or sidelined. There is a similar crisis of confidence in the civil service now.[31] With the departure of talent from the civil service, and from Fiji generally, the problem acquires a graver complexion.

[18] As part of the Fijian ‘Blueprint’ designed by the Qarase government to offer assistance to indigenous Fijians lagging behind in various fields.

[19] The Assumption of Executive Authority on December 5th 2006 by Commodore J.V. Bainimarama, Commander of the Republic of Fiji Military Forces: Legal, Constitutional and Human Rights Issues, By Doctor Shaista Shameem, Director. This report is widely available on several websites. It was published on 4 January 2007.

[20] Quoted in my Islands of Turmoil: Elections and Politics in Fiji, 2006, Asia Pacific Press, Canberra, p.220.

[21] A Response to the Fiji Human Rights Commission Director’s Report on the Assumption of Executive Authority by Commodore J V Bainimarama, Commander of the Republic of Fiji Military Forces. Undated, but it was written around mid-late January.

[22] For more discussion, see my Islands of Turmoil, pp. 200–201.

[23] Justice Shameem is Dr Shaista Shameem’s younger sister.

[24] Republic of Fiji Military Forces press release, 15 January 2007.

[25] This is from a media release issued on 6 December 2006.

[26] See ‘Gates Broke Trust: Fatiaki’, The Fiji Times, 18 January 2007. ‘How Gates reached the top,’ in Fiji Sun, 5 March 2007, reveals the contents of confidential minutes of the proceedings which led to Gates’ appointment.

[27] ‘Opinion Re Judicial Services Commission of Fiji – Recommendation for Appointment of Acting Chief Justice, ‘ by James Crawford SC, Whewell Professor International Law, University of Cambridge and Barrister, Matrix Chambers, Gray’s Inn. The Opinion was issued on 20 February 2007. Another (similar) advice came from James Dingemans, QC of James Hawkins, Temple, London.

[28] By, among others, Poseci Bune and Dr Jona Senilagakali, both members of the present interim administration. Bune was head of the Public Service Commission while Senilagakali headed Foreign Affairs.

[29] Among them were Jioji Kotobalavu, chief executive officer in the Prime Minister’s office, Solicitor General Nainendra Nand and the chief executive officer of the Public Service Commission Anare Jale.

[30] For instance, Colonels Kacisolomone and Lomaloma and Kaukimoce. Isikia Savua was posted as Fiji’s representative to the United Nations.

[31] See, ‘Militarising our police or policing the military,’ Fiji Daily Post, 13 June 2007. The collapsing morale in the civil service was the subject of Jioji Kotobalavu’s address to The Australian National University on 5 June 2007. See Chapter 23, this volume.