Fiji judicial jobs carry risks of professional misconduct Jennifer Corrin From: The Australian

FIJI’S appointment of Sri Lankan judges, designed to make up the shortfall caused by the revocation of judicial appointments earlier this year, has focused attention on the dilemmas facing any lawyer considering taking up judicial office in Fiji.
In essence, there are two competing policy considerations to be weighed by any potential candidate.

Accepting judicial appointment from an unelected regime implicitly recognises its validity and thwarts a return to democracy.

The opposing view is that judges are required to remain in office so that the courts can continue to operate, which is vital to the rule of law, even in the face of the questionable legitimacy of the government.

Lawyers must be wary of the potential professional con- sequences of accepting judicial appointment in a country with- out a democratically elected government.

A critical consideration is whether this amounts to professional misconduct.

Unfortunately, there is no express guidance on this in the rules of professional conduct prevailing in Australia.

In the absence of any explicit provision on point, the question is whether more general provisions are applicable to the situation.

Rules governing the profession in Australia generally require legal practitioners to be fit and proper persons and to exercise a reasonable standard of competence and diligence.

Similarly, practitioners are not to engage in conduct likely to diminish public confidence in the legal profession or in the administration of justice or otherwise bring the legal profession into disrepute.

Acceptance of judicial office in an illegal regime could be said to diminish public confidence in the judiciary, as it puts their independence into question.

The Fiji Code of Ethics, which is supplemented by the International Code of Ethics, contains similar provisions to those in force in Australia.

In considering whether the general rules of conduct are applicable to the situation, it is relevant that they are not intended as codes and do not exhaustively cover instances that amount to professional misconduct or unsatisfactory professional conduct.

Further, the standards of competence and diligence required under the various acts are interpreted broadly by enforcing bodies.

In the light of all this, it is possible that disciplinary action could lie against a solicitor or barrister who accepts appointment to the Fijian judiciary, even though there is no express provision prohibiting this. Given the seriousness of this matter, more explicit guidance from regulatory bodies is called for.

Knowingly accepting judicial appointment from an illegal regime also has the potential for criminal repercussions.

In Fiji, this could amount to an act of treason under the Penal Code. Prosecution would obviously be against the interests of the current regime, but this does not mean that charges could not be laid at a future time.

While the death penalty for treason was abolished in Fiji in 2002, it still carries a penalty of life imprisonment.

The latest military coup took place in Fiji in December 2006, led by Commodore Voreqe Frank Bainimarama. While the constitution was originally left in place, everything changed in April this year when, in deciding a case between the former prime minster and the head of the current regime, the Fiji Court of Appeal declared the military government to be unlawful.

The day after this decision, on April 10, President Ratu Josefa Iloilo announced the abolition of the constitution, the revocation of all judicial appointments and presidential assumption of all governing power.

Several members of the judiciary at the time of this announcement, including the members of the Court of Appeal who handed down the decision, were recent appointees. Francis Douglas SC was appointed a mere three days prior to his dismissal.

It is interesting to note that these judges had accepted their judicial appointments after the interim government came to power.

These judges had been appointed to replace other expatriate judges who it is understood had either not been offered a new contract by the interim government or refused a renewal due to concerns about the nature of the appointing regime.

Following the revocation of their appointments the appointees returned to Australia. The Law Council of Australia took up their cause, stating in an April 15 media release that President Iloilo’s actions posed a direct threat to the rule of law in Fiji, which could not be justified on any basis.

The Law Council also called for the immediate reinstatement of the judiciary, an end to the suspension of the constitution and the holding of democratic elections as soon as possible.

In spite of international pressure there have been no subsequent elections. The military-backed government’s justification for this is that a series of electoral reforms and corruption investigations must be completed to ensure that when democratic elections are once again held they are fair and valid.

Legal practitioners must be wary in their pursuit of Fijian judicial appointment, as acceptance may have serious professional and ethical consequences.

The uncertainty as to whether appointment to judicial office in an illegal regime amounts to professional misconduct reveals a gap in the regulatory framework. Express guidance is required to make the consequences clear.

Jennifer Corrin is executive director, Asia Pacific law, at the Centre for International, Public and Comparative Law, TC Beirne School of Law at the University of Queensland.



  1. Vasiti Osborne Says:

    Thanks Soli for posting that piece here. Once again, tough for the military cell to argue against it. Been up several hours and still no attempt to strike it down :–) am tickled pink

  2. Talei Tabusoro Says:

    One two punch !

    The Aiyarse Khayum interview by Radio Australia the qauri could not give a straight answer to very simple questions. He just skirted around the questions. You guys can check it out on RFN.

  3. Budhau Says:

    So how many of you really understood what the above piece was all about.

    What it said was that there is “uncertainty as to whether appointment to judicial office in an illegal regime amounts to professional misconduct…”

    These judges are not being asked to decide the legitimacy and validity of a regime. This regime has come into power by a successful coup and they have, by decree, made it clear that the question of the regimes validity or legitimacy is outside the jurisdiction of the courts.

    Whether this regime is valid and legitimate is a “political question” – so no one is asking these judges to rule and legitimize the coup.

    However, the courts have to survive and the rule of law has to survive and for that we still need competent judges. By taking up positions in the judiciary, these judges are not endorsing or legitimizing the regime.

    We have seens numerous coups throughout the world in the last 50 years, and this same issue has been discussed every time. And there are people who come down on both sides of this argument.

    Here in Fiji we had a similar situation in 1987 – the constitution was abrogated, judges were fired or jailed, the supreme court was abolished, the Chief Justice was advising the coup leaders and we had Sri Lankan come in to fill in the gap. This is nothing new.

    You go look at judicial responses to coups through history and you would see that what is being done now in Fiji is nothing new.

  4. ofa Says:

    I think we can all agree that we have a wonderful regime, an independent judiciary and good economic prospects for Fiji. We should congratulate the regime for its good governance and in particular to the introduction of the journalism of hope. We should bend over and hold still as there is really nothing much new in Fiji…..

  5. ofa Says:

    Perhaps we should look what history can teach us. Exactly 20 years ago, people marching towards the Berlin Wall brought down one of the World’s nastiest dictatorships. People ended press censorship, militarization of society and human rights violations. Also ended was a pariah status that East Germany had as a Nation. Brave people with no guns but with hammers triggered a revolution in Europe that will never be reversed. People disregarded the dictator’s order to shoot anyone who attempts to cross the border. A wave of freedom swept through the Eastern Block.

  6. Budhau Says:

    No Ofa, honey we do not “have a wonderful regime, an independent judiciary and good economic prospects for Fiji”. That is not the issue here.

    We all know that Fiji is in deep doo-doo – the question is how do we help that by not allowing competent, qualified judges from taking up positions in the judiciary.

    Maybe if we allow the judiciary to collapse, the economy to collapse and let the folks starve for a while, maybe the masses will rise and bring down the regime – is that what ANZ are trying to do.

    Hey, maybe we can get some militias going, you know, the militant Melanesian types. for the Berlin – I guess you saw those pictures in the new of people with hammers knocking down the walls – now go read up on the history to figure out what exactly happened.

  7. Talei Tabusoro Says:

    seji seji ulu kau

  8. Cassava Patch Doll Says:

    I agree with you both Vasiti Osborne and Talei Tabusoro.

    The illegal regime wants to have its cake and eat it too.

    Their hunger for absolute power has blinkered their basic common sense that no self respecting Nation in the world supports an illegal regime, especially one that keeps sliding backward and does nothing to even slightly appease its people.

    Now pigface is saying he wants to do business with Aust and NZ. Ooh lala na vuku ni ululala.

  9. sic Says:

    Why can’t posters here argue the issues? Every single post on this thread excepts for budhau’s and one of ofa’s is deragotory to someone,usually someone in the IG. Look, I know we’ve all got issues with what’s happening in our country but please, let’s act like adults for a while and discuss the issues.
    Ofa ,i’m not convinced that our situation can be compared to Germany.
    Budhau, if the legitimacy of the IG is a ‘plitical question’,why are ANZ sticking their nose in?

  10. Budhau Says:

    When I said that the legitimacy of the the IG is a “political question”, what I was trying to say is that it is not for the courts to decide whether this regime is legitimate or not.

    I was basing that argument on the history of coups over the last 50 years in various countries where judges who have accepted positions in those judiciaries have gone with that line of reasoning.

    Here in Fiji, the regime, by a decree, has made that clear that courts do not have jurisdiction when it comes to the legitimacy or validity of this regime – so when these judges are taking up these positions they know that they will not have to decide on the legitimacy of this regime – the regime that has appointed them – thus there is not conflict of interest when they take up these positions.

    That is why I am of the opinion that ANZ and others should allow good competent judges to take up position in Fiji’s judiciary – at least we will have a solid, impartial judiciary that would uphold the rule of law – the only question related to the rule of law that they cannot address is the legitimacy of the regime – which is a political question – it is a US constitutional law doctrine.

    The concept of “political question” and courts lack of jurisdiction in such matters is nothing new – besides being an issue in countries with coups – this is something that is taught in constitutional law classes in the US –
    Here is the wikipedia definition: Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority.

    The United States Supreme Court would refuse to hear an issue that involved a “political question”. The doctrine of non-jusciability, though slightly different from the US doctrine, has also been addressed by the House of Lords – most of the time, this in

    Now – why is ANZ sticking their noses in Fiji affairs – I think there is a belief that if ANZ put enough pressure on Fiji which then translates into hardship for its people, the masses would then rise to bring down this regime.

    Better still, if some in the military feel that Frank is failing, they themselves would turn on Frank and overthrow him. That is why ANZ do not want Frank to succeed in setting a effective judiciary – a impartial judiciary would give more credibility to this regime and frustrate the ANZ’s efforts to destabilize this regime.

    BTW Sic – I agree with you that discussion in here should be issue based. In this case one can agree or disagree with the ANZ policy on the judges travel ban without being labeled pro-coup or anti-coup.

  11. sic Says:

    Cheers budhau.

  12. Talei Tabusoro Says:

    seji seji ulukau

  13. sic Says:

    Talei t: Who are you calling ulukau?

  14. Talei Tabusoro Says:

    Aren’t you smart enough to figure it out ?

    Cheers sicko.

  15. Anon. Says:

    Rumour has it multi citizen Gates considering leaving Viti – retiring to his property in Sri Lanka. Trust his Viti pension will be in a lump sum?

  16. gdevreal Says:

    More likely in rump bum!

  17. Nostradamus Says:

    How can you say that Voreqe’s was a successful coup when it was declared illegal by the Appeals Court, and there was no subsequent court challenge to that? Or are you saying that court decisions have nothing to do with legality?

  18. Budhau Says:

    Nostra – the fact that a coup is declared illegal has nothing to do with whether a coup is successful or not.

    Also, note that calling a coup “successful” has nothing to do with whether your support of oppose a coup.

    In case of Fiji both the 1987 and the 2006 coups were successful because in both cases the perpetrators of the coup had successfully taken over the country – they had the judiciary, the military, the police, the civil service all under their control and they were also able to take over role of the legislative branch by ruling by decree.

    If you compare that with the George Speight coup, they were not able to do what Bainimarama and Rabuka had done.

    Do you see the difference between the “successful” and the “unsuccessful” coups.

    If you succeed in the initial take over of a country by a coup – than it is a successful coup…. it has little to do with whether coups are good or bad or whether you support it or oppose.

    There had been a discussion of this “successful” coup issue in both the court cases that followed the 2000 coup and the 2006 coup.

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