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Fiji's A.G. Details 'Modernisation' Of Judiciary

A-G’s Closing Address at the 11th A-G’s Conference 2009
29 November 2009
Warwick Fiji Resort and Spa

Your Excellency, the President of the Republic of Fiji
Adi Koila
Chief Justice
President & past members of the Judiciary
Ladies and Gentlemen:

The task of closing a conference such as this where you have such a high caliber of speakers and presentations and of course topics that are pertinent to our country makes it difficult to think of a closing address because the topics have been ventilated professionally and in depth.

On the other hand, it means I have little to say and can cut short the speech.

Your Excellency the theme: Developing the Law – Challenges and Opportunities heralds an era of change and reform. It signals that the Bainimarama Government has the political will and the ambition to implement new laws or to amend old laws and make it in line, make it in standards, modernize it with what we have in contemporary Fiji.

They also signal change. However, we should not have change for the sake of having change. If change means justice, and I mean substantive justice, if it means removal of systematic corruption, if it means fairness, if it means removal of systematic racism and bigotry, if it means accountability, if it means prosperity, if it means equal suffrage, if it means creating institutions that are independent, a judiciary that is truly independent, if it means creating prosperity, equal citizenry, common citizenry, economic growth and recognizing that our laws need to be made in compliance with international standards, then of course, we must have change.

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The emphasis and focus on these values and principles also means that that change being brought about must be accepted. Many have argued that parliamentary representation or the absence of it, in fact makes it a lot easier to bring about these changes. In fact, conversely some argue that if you have parliamentary representation - that these values and principles are not just not implemented but in fact undermined and Fiji is replete with those examples.

One such example is the presentation or the formulation of the Reconciliation Bill under the previous government. What it would have effectively done is taken away the independence of the judiciary, taken away the independence of the DPP, and indeed, taken away the independence of the Police Force. Yet it was being presented as a Bill to parliament. I do not need to tell you that Hitler was elected to government through popular vote and look what happened there.

I am however, not here to argue the case of whether we should have parliamentary representation or not, that is another topic altogether. What I am here to say, though is, that if these principles and values are being implemented they in fact cannot be faulted because they do comply with various international norms, values and principles. What I am also here to say, is that these principles and values simply cannot be annunciated, we should not just say them for the sake of it. I know that under previous governments these principles and values were rolled out atnoseum. But were they actually been put into practice? I know many people lapped it up, it is great to tall about these principles and values but, in fact if you are not going to implement them then what is the point of talking about them.

I will give you many examples of what had been said and what had not been implemented, some basic examples His Excellency alluded to. For example, under the abrogated 1997 Constitution there were specific provisions that said parliament must make laws regarding Freedom of Information; parliament must make laws regarding Code of Conduct. From 1997 until December 2006, no government no parliament put in even a Bill into parliament in respect of those areas, none whatsoever. They were drafted but they were never even presented.

Similarly, the Domestic Violence Bill was initially drafted in 1994. There was not political will to implement it. Again, it was revamped in 2004; there was no political will to implement it. This now has become a reality and in fact, will be in force from 1 December this year.

The Penal Code was inherited from British India 100 years ago. There was a lot of talk about revamping it. It has not been done. In fact, there was a Law Reform Commission that presented a report on it. It talked about how the laws are so archaic that they need to be changed, they were not. What this Government has done is basically picked it off the shelf, dusted it, looked at it, seen where further changes need to be made and then we have put it into action.

Just to tell you what these laws do – the Crime Act now which will be implemented from 1 February next year will make us complaint with the Rome Statute, it will make us compliant with CEDAW, it will make us compliant with the Convention on the Rights of the Child. It will modernize our laws, it will modernise including the Crimes Act, I should also mention, the Sentencing and Penalties Decree, you will now get consistent sentences been handed down. You are not going to have a Magistrate in Taveuni who is going to send a villager to nine months imprisonment for stealing a flip flop as opposed to someone who has stolen from a bank $50,000 and he/she gets a suspended sentence or someone stealing a flip flop in Lautoka may get a suspended sentence but the person in Taveni goes into prison for nine months.

Now by changing the laws in these areas it instills confidence into the justice system.

We have, of course, modernize the laws under the Crimes Act regarding corruption. We have changed the sentencing laws, for example, desecration of holy places or mosques, temples, churches – you will now no longer have the old rule of collaboration in respect of rape. You no longer will be able to drag the sexual history of a woman in court if she alleges rape. We will now recognize under the Crimes Act the condition of the mental health when you are having a trial regarding abortion or infanticide – these are all modernizing our criminal justice system. It is also recognition that we as a society have developed, that we as a society now recognize that there are other influences when you are dealing with these sorts of matters.

It will equally, of course, criminalize the procurement of prostitution services. As the laws stands now it is only the prostitute that gets charged but the person procuring those services does not and invariably as you know prostitution in Fiji is gender-biased, in the sense that the prostitutes are predominantly female. So the males get away while the females get locked up. This brings about gender equality in our criminal justice system.

Of course, we have talked about computer hacking, we have talked about human trafficking – these are all new offences created under the Crimes Decree. I must make this comment - we must recognize that all criminal activities have an economic impact on society. As I recently told a gathering of tourism stakeholders that when Government brings about laws regarding say, Domestic Violence it is not simply a question of, well that is sort-of pushed to the private realm, it does not impact upon us – it most definitely does.

If you take a purely economic view on it, 50 per cent if not more of the employees in the tourism sector are females. If the females are been bashed by their husbands the night before how do you expect her to perform to the fullest of her capabilities when she’s serving tourists, when she’s making the bed, when she’s greeting people in the reception area or if she’s working in an office, or if she’s a lawyer. We know invariably domestic violence is perpetrated against women. There’s a very small margin of males that fall in that category. But it is predominantly women. So it does have an economic impact too. My point of telling you that is that you cannot, even as lawyers, as business people, as judges, as other stakeholders within our country - all these laws have an impact on all of us. It’s not something that, well that’s something that the Police deals with, the DPP deals with, the A-G’s Chambers deals with – it has an impact on all of us and we must all support it.

Unfortunately, many of these laws are not given good coverage by the media organizations and I am always frank and open about it. The Fiji Times has not covered anything on the Crimes Decree, the Fiji TV has done minimal stories on this. The question that needs to be asked is why? This is good for Fiji, why is this not been given enough coverage?

I think also, many of these laws have been misconstrued and I will give you a classic example which has been talked about quite a lot, our Prime Minister commented on it, the Foreign Minister of Australia has commented on it – it’s the recent change or the new law we brought about regarding Spectrum change. Spectrum allocation essentially recognizes the fact that the allocation of spectrum to each country is a limited resource. It’s like your trees, its like the fish, its like your timber, it’s limited, it’s like your gold its limited. It’s a revenue base the country, it must be valued; it must be put out on open transparent tender process. What has been happening hitherto in Fiji is if you know an official you make various representations they allocate the frequency to you. If I want to have a community radio station, I am given is that I am given the national band. There absolutely has been no planning whatsoever. This Decree seeks to correct that unplanned approach to spectrum allocation, nothing more nothing less.

Yet, its now been banded around as the Bainimarama Government’s assault on media freedom, as a means to stop the expression of freedom. In fact, the spectrum allocation has of an more impact on telecommunications companies than media organizations if the truth be known. Yet people are lapping it up.

What it also demonstrates to us is that by having such a process the civil servants will also be held accountable. Just because you’re mates with somebody or they take you out for lunch or they make a presentation to you which you think is very attractive, not knowing what other presentations might be offering you or other offers that is out there in the international market and you make a deal with them – you are actually denying the Government of Fiji, the people of Fiji access to that revenue base. You are not positioning Fiji for the digital age.

If you eat up all these bands that are limited and allocate it to organizations that will not necessarily make the maximum use of it, we will not be able to position ourselves with the digital age. We talk about broadband but if you don’t have the range available how will you be able to utilize it, how will get access to information to those in the rural areas? These are the questions that need to be asked but they are not been asked, they are been misconstrued. I suggest that one the reasons that’s been done is because people are in fact not reading what’s there, very basic thing.

Similarly when we introduced the Legal practitioners Decree. More importantly, the Independent Legal Services Commission Decree, a lot of talk on the assault on the legal fraternity. Many of you may not know this but about two months ago Law Asia was in Fiji, they paid a two-day visit to Fiji. They met with the President of the Law Society and various other members of the Law Society with me and the Prime Minister the next day. They informed us that when the Law Society said, look the Government has brought about all these changes, they told them quite categorically, we cannot fault this. The reason they could not fault it is because we borrowed it from New South Wales, we borrowed it from Queensland. The only thing that is different is that we have leaped frog into this change. By having an Independent Legal Services Commission is the way the world is going.

As proposed to have also to have an independent and continuing education programme for dental and medical practitioners is obviously a good thing. It will have an impact on medical negligence, that’s the idea behind it. It will have an impact on the types and the level of medical services that will be given to the public of Fiji.

The response we’ve got from the community at large, in respect to the Independent Legal Services Commission has been overwhelming. As a lawyer, if I am not doing anything wrong if I am sticking to my professional conduct as I should, If I am adhering to the ethical standards why would I worry about a system that actually makes me accountable. Unless, of course, if I am not sticking to it in the first place. In fact, I should be glad that there is a system in place because it instills confidence, it instills confidence in the community, in the country and those people viewing us from outside, saying look if I go into Fiji and invest and if my lawyer tries to rip me off, I actually have recourse and that recourse is to an independent institution.

I have to comment on the judiciary. The judiciary has been now, what I can only say, attacked continuously and I must acknowledge the fortitude and resolve of the Chief Justice in this respect. It has been attacked both from external sources and locally. The very simple test or any condemnation of a judiciary must stem from the fact or the belief that the day to day functioning of the judiciary is been interfered with by the Executive. That that Attorney-General, the Prime Minister, members of the Police, Military, civil servants are actually picking up the phones and telling the judges what to write, are telling them not to hear that witness, are somehow or the other blocking witnesses or stopping people from filing cases – that’s interference with the judiciary. Has that happened? It has not happened.

In fact, I can tell you and I have said this previously, as someone in the private practice, we knew prior to 5 December 06 that there were certain law firms that were involved in foreign shopping. We knew that there were certain judges who’d actually know beforehand, before cases were even filed, in particular constitution and political type cases that they would be ones hearing it. That’s not an independent judiciary and that’s not what happens now. The registries have been cleaned up, there were people in the registries who were taking bribes so that they could allocate files to the right judges.

My appeal to everybody is that we need to be honest. We need to go to the basic principles of honesty. We all need to ascertain the truth. After all, as lawyers, as judges, lawyers, government officials, permanent secretaries, ministers, as the President, the citizens – we all must seek the truth. What is the truth? And the truth does not only mean seeking the truth amongst ourselves, it means been honest with yourself.

This is the opportunity for Fiji that is been offered on a plate and if as all Fijians want to contribute to having a society that is fair and just, that is economically prosperous, we need to be honest with ourselves and only then you can be honest with others. It will then engender all of us as a society to be able to move your country forward based on appropriate policies and appropriate laws and address the inequalities, injustices and indeed have a robust debate. There’s no point having a political dialogue or political forum if we are going to be dogmatic about our principles if we are not going to move with the times.

Just to paraphrase a former supervisor of mine who is quite internationally recognized and who has been involved in a number of countries where they have had political and constitutional problems, he said that the blind adherence to legal formalities can stop progress, can stop you from ascertain the truth. How many lawyers in this room will use various rules in the book, will use various other tactics including litigation to simply offiscate the truth, to simply delay the finding of the truth if we are honest with ourselves? There are some lawyers who are known as genuine experts. What I respectfully submit, is that if you do not have the means, if you do not have the will to seek the truth, you in fact, will undermine the rule of law, you will in fact undermine the democratization process.

The proposed law for the Code of Conduct and in particular the Freedom of Information shall lead to the process of democratization. Indeed, it will help us ascertain the truth. In this particular instance, the truth behind the manner decisions were made, why decisions were made and if indeed, that type of decision should have been made in the first place. As I have continuously said, that we have already started the process notwithstanding, we do not have the Decree in the first place. We have a Prime Minister, who is the most accessible Prime Minister ever in the history of Fiji. Many of you may not know but he actually has a text number you can text his Office on if you have a complaint, it appears on a screen I think it is 01 (the number). You can actually text the complaint.

This is an opportunity that we need to be able to grasp. But in all of this what is really pertinent is that we need the right capacities in the right places. It will also mean not just getting the right capacities, but it means capacity building. Capacity building, of course means, that we have to put our egos our vanities and dogmas at the door. Unfortunately many civil servants, many lawyers, politicians and with respect some judges have been and are prone to this human frailty. Capacity building means we recognize where we are limited, where we need training and in some instances, where we are in completely inappropriate for that position. After all, if we are to improve our individual capacities the capacities and professionalism of the your various law firms, your ministries, bureaucracy, our country we must know where we are failing and we need to know, therefore we need to improve.

In conclusion, I would like to observe that any reform or modernizing agenda requires a vision. More importantly then that it requires the resolve to implement that vision, that’s critical. Policy statements should not merely just become wish lists. I believe that this vision and the implementation of that vision is been provided by our Prime Minister and how he is leading our Government. It also means that, in particular, those who have benefitted from a system, the old system which was archaic and indeed a closed system will actually resist that change.

If a system actually makes certain individuals lazy, if it makes them non-transparent, if it gives them the ability to arbitrarily change the rules of the game to manipulate the system – obviously they will support that old system. There will be resistance. But I believe the majority of the people of Fiji want the change, in particular, if you are honest with yourself, if in particular you have a vision.

My appeal to you is please think beyond the dogma, think beyond the internal and external misinformation, the rumor-mongering. Look at the ground realities, look at what is happening in practice, look at the outcome of these new laws that are been placed, look at the motivation, the rationale behind it. Is it affecting anybody adversely? Is it affecting the nation of Fiji adversely? As lawyers, as people who are in businesses, you must read the laws, don’t read the blog sites they teach how to make bombs. Read the laws, that’s more constructive, that’s more positive, that’s what will help you as individuals and help our country.

On that note, you need to focus on the outcomes. You need to look at whether, for example, these laws are causing any harm. As individuals, as citizens of this country we need to be more loyal. But the point is there needs to be respect for your country. If you may have a particular grip on a particular issue don’t take it out on your country.

Overall, ladies and gentlemen, you will see in the next year or so that there will be a lot more changes made to the laws in Fiji. We have our modernizing and reforming agenda as you know. In fact one of the reasons why we believe, I believe, maybe the Chambers does not believe we are still a bit slow in bringing about these reforms is that we do not have the necessary expertise and skills, in particular, in drafting.

We would like to bring about more changes and you will see a lot more of that happening. A lot of it is sensible for example, we now have stopped girls been married out at the age of 16. Under the Convention of the Rights of the Child, the 16yr old is a girl, she is under-aged, she cannot be married. These are some of the simple and basic changes we have brought about. We look forward to your support. We urge you to think along the national line, look at the law that is there on paper, see what impact it has. View that law in terms of the future of your country and your future also. We will continue to build these capacities, it is exciting times, we will continue to consult with the various stakeholders in terms of formulating these laws.

We need to have a mindset and an environment where we reward consistency. We do not reward hypocrisy. I know many people took a different position in 2000 they were quite mute about certain things but in 2006 they were very vocal. That sort of criticism, that sort of analysis frankly lacks merit. You do not any longer have any credibility. What we must also do is we must reward the thinkers in our society we must be beyond just mediocrity and if we are able to do that as a nation we will be able to realize then the vision of our ourselves as a country.

I must thank the speakers who have presented these fantastic papers since yesterday morning; unfortunately we are also tightening our belts so I do not have individual gifts for them. I know traditionally people get gifts so hopefully by next years when the Ministry of Finance can give us a bit more funding. I have to share this with you, we do make a little bit of profit on these Conferences so thank you very much for attending.

We have got 200 attendance this year, which is a record, so once again thank you very much for your participation. I would like to thank His Excellency our President for being here it is most usual for the Head of the State to sit through these sessions, Mr President thank you very much for being here and I am sure everybody appreciates your attendance and indeed your presence.


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