Legal fight in Fiji has potential to derail Penny Wong’s efforts to bolster cause of democracy

Chris Merritt                 21 July 2022

Published in the Australian Newspaper

Richard Naidu, one of Fiji’s most senior lawyers, has a solid track record as a defender of the rule of law, judicial independence and parliamentary democracy.

He is a leading partner in one of Suva’s premier law firms, Monro Leys, a prominent supporter of the opposition National Federation Party and considered in parts of the local media to be a future member of parliament and attorney-general.

Should that happen, the current Attorney-General, Aiyaz Sayed-Khaiyum, would be out of a job. There is no love lost between the two men.

They have been criticising each other for years.

Evidence of their antipathy is apparent in the Hansard record of the Attorney-General’s statements in parliament, and in the clippings files of the Fiji Times, where Naidu is a regular contributor.

That is why senior figures in the Albanese government should pay attention to a brief but important statement about these antagonists that was issued this week by the Law Council.

That statement highlights an issue that has the potential to complicate the efforts of Foreign Minister Penny Wong to deepen relations throughout the region in order to bolster the cause of democracy.

The Law Council noted that Attorney-General Sayed-Khaiyum had brought committal proceedings against Naidu for contempt of court, and made it clear that this case would be monitored by the peak body of the Australian legal profession.

If the Attorney-General wins, Naidu could be imprisoned. But even if the penalty is limited to a fine, he could still be entangled in a legal dispute about whether he would be entitled to stand as a candidate at the election that is due by November.

The Attorney-General, in other words, might have found a way of jailing one of his most effective critics or at least keeping him out of parliament.

When the case comes on for mention next week, it will mark the beginning of one of Fiji’s most intense legal struggles. The Fiji Law Society has applied to intervene in the case.

On one level, the contempt proceedings are laughable. The case concerns a spelling error in a judgment of the Fiji High Court that was identified by Naidu in a Facebook post.

The judgment contained two references to the word “injection”. Naidu posted an image of the judgment and noted: “Maybe our judges need to be shielded from all this vaccination campaigning. I’m pretty sure all the applicant wanted was an injunction.”

But on another level, this case provides an insight into the nature of governance in one of the Pacific’s most important countries.

It shows that little has changed since 2013 when Reverend Akuila Yabaki, the director of a Fiji human rights group, was convicted of contempt of court after accurately summarising a British report on the rule of law in Fiji.

That report, by Britain’s Law Society Charity, said: “There is no rule of law” in Fiji and “the independence of the judiciary cannot be relied upon”.

That prompted Amnesty International to express concern that the verdict in the Yabaki case had had a chilling effect on civil society organisations in Fiji and may discourage individuals and organisations from raising legitimate concerns about the rule of law and the independence of the judiciary.

In August, 2013, Amnesty pointed out that the right to freedom of expression is protected under international human rights law.

“This right includes being allowed to make comments that may be regarded as critical or even deeply offensive of government institutions, including the judiciary,” Amnesty said.

One of the curious aspects of the case against Naidu is the timing. The Facebook post took place on February 2 and it was only last month that Sayed-Khaiyum dug it out and initiated these proceedings.

He filed a supporting affidavit in which he outlined what he believed was the proper method to correct judicial spelling: “If the respondent was concerned with the spelling errors in the judgment, he should have written to the High Court registry and asked that the matter be brought to the attention of the presiding judicial officer.”

Naidu’s legal team is expected to argue that the contempt action should be struck out. If that fails and the case goes ahead, the real issue will be whether Sayed-Khaiyum can use the courts to rid himself of a critic.

There is, however, an upside: law students everywhere will soon learn about the judge who mistook an injunction for an injection.

Presumed innocent

NSW Premier Dominic Perrottet must be taking lessons from Lisa Wilkinson about the presumption of innocence.

Perrottet has urged John Sidoti, a former Liberal minister, to leave parliament because the Independent Commission Against Corruption has accused him of corruption. Nothing has been tested in court and proved.

Advice has been sought from the Director of Public Prosecutions about whether Sidoti should be prosecuted over material contained in a report prepared by ICAC. Sidoti plans to challenge that report in court.

What will Perrottet do if Sidoti succeeds in striking it down? What if the prosecutors conclude there is insufficient evidence to justify a prosecution? What if Sidoti is brought before a court and acquitted?

Rushing to judge people on the basis of mere accusations is the antithesis of a fair go. It shows no respect for the presumption of innocence.