Fiji Law Society must conduct enquiry into Khaiyum, Shameem and McCoy ... April 18, 2009 ..... By VICTOR LAL
The new Judicial Decree announced by the illegal Attorney-General and treasonist Aiyaz Sayed-Khaiyum removes the Fiji Law Society president from the process of appointing the new judges. But since the Fiji Law Society has not been disbanded nor has Khaiyum and other treasonist lawyers withdrawn their membership of the FLS, they must be subjected to the society’s disciplinary rules.
In a recent column, I raised the question whether there was conspiracy between Shaista Shameem, Christopher Pryde, Gerard McCoy and Khaiyum to pervert the course of justice in the Qarase versus Bainimarama case in the Fiji High Court. I raised the question based on an-email that Shameem had sent to me on 12 September 2007, and had authorised me to use it in whichever way I wanted to, for according to her, the so-called “White Boys” in the Attorney-General’s office had stolen her legal arguments regarding the “Reserve Powers” that was supposedly reposed in the President through the 1997 Constitution of Fiji.
I have written elsewhere that the hearing before Justices Anthony Gates, Davendra Pathik and John Bryne was legally flawed because of the fair-minded observer test” where Justice Pathik had been happily applying Holi powder on Bainimarama’s forehead while the nation was awaiting for the High Court judgment. There are allegations also that the judgment that was read out, and which had gone against deposed Prime Minister Laisenia Qarase, had been actually written in the Attorney-General’s office.
Let us take the case of Shaista Shameem who was allowed to appear as amicus curiae in the Qarase case. I had written a column questioning her right of appearance but we had to hold back the column because she had been also allowed by Justice Hickie to appear as amicus curiae in the case of the deported Fiji Sun publisher Russell Hunter, who was challenging his deportation from Fiji. Again, it beggars belief how could someone, who wrote a report justifying the 2006 coup, and another report justifying Hunter’s deportation from the country, could be considered a neutral “Friend of the Court”. I thought justice is meant to be blind.
The role of amicus curiae has been widely studied, and as Zeldine O’Brien in “The Courts Make a New Friend: Amicus Curiae Jurisdiction in Ireland” (Trinity College Law Review, 2004) has pointed out, historically, the concept of amicus curiae was first developed in Roman law and later by the common law courts in England in response to the threat of fraud in, for example, collusive suits and to inform the court of facts or law which would otherwise not be presented.
What is Amicus Curiae? The Jowitt’s Dictionary of English Law states: “A friend of the Court, that is to say a person, whether a member of the bar not engaged in the case or any other bystander, who calls the attention of the court to some decision, whether reported or unreported, or some point of law which would appear to have been overlooked.” A similar definition is found in Mozley and Whiteley’s Law Dictionary and Black’s Law Dictionary states as follows: “A person who is not a party to a lawsuit but who petitions the court or is requested by the Court to file a brief in the action because that person has a strong interest in the subject matter.”
Originally, the role of amicus curiae, as O’Brien noted, was confined to that of a neutral party who made impartial submissions for the sole purpose of assisting the Court in the administration of justice. The amicus curiae had been seen as a “detached servant of the court…who acts for no one, but simply seeks to give information to the courts by their leave”. There was reluctance on the part of some judiciaries to permit an interested party to intervene in an action as amicus curiae or to permit amicus to advocate one particular side. This was out of a concern that the neutrality of the amicus curiae would be called into question and the potential violation of the principle of equality of arms that could result.
It is necessary to distinguish between amici curiae and interveners. Unlike the amicus curiae jurisdiction by third parties, the role of an intervener was described by Huntley JA in Corporate Affairs Commission v Bradley (1974) as follows: “A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument.”
We are acutely aware that in Qarase versus Bainimarama case in the Fiji High Court, Pryde and McCoy objected to Shameem appearing as an intervener. And when I asked her what was going on, she explained in that 12 September 2007 e-mail: “This is about intellectual property theft by the white boys in the AG’s office. FHRC came to our conclusions on the December 5th events (which you know as the report Part II), brought it to the attention of the Solicitor General (Pryde) because they did not have a clue how they should go about this case. We then made an arrangement with them that we would intervene on the prerogative issue; he took that and went to Aiyaz and Gerard McCoy, who took our plan and without telling me made a separate application in an interlocutory matter on how the PM did not keep the President informed under section 104; and then when I cried foul, they decided to object to our intervention! This is how it goes here with the white boys and the AG’s office. I have of course declared war. You are free to use this information any way you like. The problem is Tony Gates is a friend (close and personal) of Gerard McCoy and probably wants to make his name in the international constitutional circuit. This is how bad it is here now. Dog eat dog. I am certainly not assisting in the Fatiaki trial- let the cards fall where they shall. My job is the public interest and I did not write my reports for the state. The military council is fully briefed and I don’t have any worries. Best – Shaista.”
Firstly, in what capacity was Shameem helping Khaiyum, McCoy and Pryde in former Chief Justice Daniel Fatiaki’s tax case? Secondly, I call upon the Fiji Law Society and its president Dorsami Naidu to order an immediate investigation to find out whether there was attempted conspiracy to pervert the course of justice from a group of lawyers belonging to Fiji’s legal fraternity – Shameem, Pryde, McCoy and Khaiyum.
The Fiji Law Society has not been disbanded by the treasonist Khaiyum. He can roar from behind the power of the guns and the goons but the long arm of the law must be applied to him and others of the same ilk. It might be “Dog Eat Dog” but we must not let Fiji go to the dogs because of a treasonist few. God Bless Fiji.
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Bainimarama created Fiji power vacuum: Judges - AUDIO from Pacific Beat - On the Mat
Geraldine Coutts speaks with Ian Lloyd, Randall Powell and Francis Douglas - Created: Tue, 14 Apr 2009 00:00:00 +0100 - Geraldine Coutts
The three Fiji Appeal Court judges who ruled that the 2006 coup is illegal are angry at comments by the President and Commodore Bainimarama that the decision left the country with a leadership vacuum.Justices Ian Lloyd, Randall Powell and Frances Douglas all claim the decision provided for a caretaker government to be installed.
Justice Lloyd has told Radio Australia's Pacific Beat the events that followed the dumping of the constitution are of the military's own making. "This is misinformation, quite malicious misinformation, that Bainimarama and the President have spread to enable them to abrogate the constitution and run the country as a military regime, a dictatorship that they want," said Justice Lloyd.
Another of the judges involved, Justice Francis Douglas, denied that their decision had created a power vacuum. "It's no more a vacuum than the hiatus that exists between one government going out of power prior to elections and another one coming in," he said.
"You've still got the functioning executive, you've still got the courts, all of whom are bound to uphold the constitution. [The sacking of the courts] is not us creating a vacuum - it's Bainimarama creating a vacuum."
Justice Randall Powell said they had deliberately sought to avoid a power vacuum.
"We had the option in the judgement of making orders which would have seen Mr Qarase restored as prime minister, but we actually gave a third way - that is the appointment of an independent person, to advise the president to call elections," said Justice Powell.
"And we also stressed...that the judgement did not in any way invalidate legislation or what had occurred to that point. So again, it was just used as an excuse by the military to do what they've done."
Judging the 'puppet master'
Australian judges Ian Lloyd QC, Randall Powell SC and Francis Douglas QC were appointed to Fiji's Court of Appeal, where they heard an appeal against a lower court ruling which said Commodore Bainimarama's 2006 coup was legal. Last week, the court ruled that coup was illegal, and declared that the president should appoint a caretaker Prime Minister with a view to democratic elections.
But Fiji's interim leaders moved quickly to counteract the ruling. President Ratu Josefa Iloilo instead repealed the constitution and sacked the judiciary, before reinstating Commodore Bainimarama's interim government. One of the three judges, Ian Lloyd QC, has told Radio Australia's Pacific Beat program they did not expect the ruling to have that effect.
"We obviously anticipated that there might be problems - I don't think any of us anticipated that Bainimarama would take the judgement well, and I don't think the ramifications were out of our minds" he said.
"But I don't think we quite thought that Bainimarama would go to this extreme...I don't think any of us thought things would go that far, and certainly go that far that quickly that the country would suddenly be overtaken by an illegal military regime."
Justice Lloyd says it is clear to him that Commodore Bainimarama is behind the president's actions. "One can only assume that from the pace of what has occurred in the past few days, the president simply, from my observation, would not have been the one that was making these decisions," he said. "Clearly he would have been acting on advice, and the advice could only have come from Bainimarama. I don't think one can say other than sensibly - he is the puppet and Bainimarama is the puppet master."
Independent judiciary
Justice Powell says the decision to sack the country's courts is a major setback for a judiciary which has largely maintained its independence since the 2006 coup. "Following previous coups, the state of the legal system, to say the least, has fallen into disrepair," he said. "It's taken years and years for cases to be heard. But in recent years, the local the judiciary, working very, very hard, have sought to ensure that a fair and functioning judiciary exists in Fiji. I guess they'd always be torn between not wanting to continue in these circumstances on the one hand, and on the other hand seeing litigants not having access to justice."
And Justice Douglas says it is important for international groups to pressure Fiji to return to an independent judiciary as soon as possible. "A functioning system of justice, both civil and criminal, is very important to any country - as we pointed out in our judgement," he said. "You have people who have been wrongly convicted who could rot away in jail, who could not be granted bail. People who've got civil courses of action their neighbours which they can't pursue; commercial courses of action which can't be pursued.
"Justice delayed is justice denied, they say."
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Fiji - the Flailing state
Click on the above link to read the Lowy Institute Policy Paper
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