Greg Barns | August 22, 2008
JOCELYNNE Scutt’s decision to accept a judicial appointment from Fiji’s military-backed regime is a national embarrassment and it is time she came home.
Her presence on the Fiji bench is hurting Fiji’s democracy lobby and is at odds with this week’s strident criticism of the regime by Prime Minister Kevin Rudd.
The refusal of Victorian Legal Services Commissioner Victoria Marles to sanction Ms Scutt over her role in Fiji is, on every level, the wrong call.
By giving the green light to Ms Scutt, Ms Marles is sending a clear message to members of the Australian legal profession that in accepting judicial positions from undemocratic regimes around the world, they will not face sanctions from the regulators.
Ms Marles’s attitude appears also to undermine the position taken by Mr Rudd, who said Fiji’s military-backed regime was shredding the principles of democracy and South Pacific countries should collectively put pressure on Fiji to restore democracy.
A leading pro-democracy non-government organisation in Fiji, the Pacific Centre for Public Integrity, asked Ms Marles earlier this year to consider whether Ms Scutt’s conduct in accepting a judicial post last year from the administration backed by military officer Commodore Frank Bainimarama constituted unprofessional or professional misconduct.
It is a fair question, one would have thought, in the circumstances.
But, as this newspaper reported on August 8, Ms Marles thought the complaint was lacking in substance and that in any event, in her view, Ms Scutt’s acceptance of the appointment would not be, of itself, regarded as disgraceful or dishonourable by members of the legal profession.
To understand just how wrong-headed is Ms Marles’s conclusion, consider this example. Let us say an Australian lawyer accepted a judicial appointment from President Robert Mugabe’s brutal Zimbabwe regime.
There would be a legitimate sense of outrage in the general community that a western lawyer, who is meant to stand for the core values of liberal democracy, such as the rule of law and respect for democratic rights, would take such a position.
We would certainly question the judgment of that lawyer and might reasonably conclude that the person who took the appointment, and thus gave legitimacy to President Mugabe’s repressive and undemocratic modus operandi, had acted unprofessionally.
One could imagine the average person in the street would view Ms Scutt’s actions in the same poor light as the lawyer who takes a seat on a Zimbabwean court.
We can also compare Ms Scutt’s conduct to that of sports stars in relation to South African apartheid.
We stopped sports people from playing against South Africa until almost 20 years ago when that country rid itself of the racist apartheid regime, and if individual sports people or teams disobeyed that ban they were dealt with harshly by the appropriate sporting authority. Cricketers who went to South Africa in the early 1980s were banned from playing test cricket for Australia.
The conduct of sports people who played in South Africa, and thus gave legitimacy to the apartheid system there, was seen to be dishonourable by the majority of Australian sports fans at the time.
Ms Scutt is in no different a position to those sports people.
What is perhaps most disturbing about Ms Marles’s refusal to recognise that Ms Scutt’s acceptance of the appointment was not misconduct, is that many lawyers are sanctioned by legal regulators for sins of far less gravity.
Lawyers who are rude to clients, provide poor service, or who fail to provide Ms Marles and other regulators with full explanations of their conduct when requested to do so are regularly cited for professional misconduct.
No doubt in some cases it is deserved, but none of these offences could be considered remotely akin to a lawyer accepting a job from an internationally recognised illegitimate regime.
This view is fortified by virtue of the fact that the Chief Justice of Australia, Robert French, in effect the leader of the legal profession in our nation, refused to renew his commission as a judge in Fiji after the 2006 coup.
Justice French rightly observed that accepting a commission as a judge from the military-backed regime came at too high a price.
The attitudes and actions of Ms Marles and Ms Scutt are also undermining the Australian Government’s plan to pressure Fiji into restoring democracy.
As demonstrated again at this week’s South Pacific Forum on the tiny island nation of Niue, Australia, along with New Zealand, is leading the push to put sustained pressure on Fiji to return to democracy.
The Government’s rhetoric and actions in this regard are being undermined by the fact that an Australian citizen holds a senior judicial post in the very regime that we are condemning.
It is time for Ms Scutt to do the right thing by the people of Fiji, by resigning her commission and returning to Australia.
If she does that, she will be helping to restore democracy to Fiji and will enhance her standing in the eyes of her peers and the Australian community.