Democracy requires more than elections. It requires ongoing respect for the rule of law – something that took a battering under the previous government.
The new government will face its first test on this measure next month when the new Attorney-General, Siromi Turaga, has an opportunity to disavow deeply flawed legal proceedings that the former government launched against one of its most effective critics – prominent Suva solicitor Richard Naidu.
The rule of law is the enemy of authoritarians. It means free societies are ruled by law – and law alone.
More than a century ago, legal philosopher A.V. Dicey explained that this doctrine requires “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government”.
So is democracy secure in Fiji?
At the moment, all that can be said with certainty is that one reformed coup leader, Sitiveni Rabuka, is prime minister after defeating the government of another reformed coup leader, Frank Bainimarama.
The fate of Richard Naidu will tell us a great deal about the state of the rule of law in Fiji – and therefore the health of democracy.
Naidu was convicted on November 22 on a charge of contempt of court. His case will be called on February 20 to set a date for sentencing after the earlier January 5 date was deferred by the court.
The charge had been initiated by Aiyaz Sayed-Khaiyum who had been attorney-general in the defeated government.
He and Naidu have a history of political antagonism and this was an issue in the case.
Evidence of their antipathy is on the Hansard record of statements by the former attorney-general, and in the clippings files of the Fiji Times where Naidu, an outspoken defender of human rights, has been a regular contributor.
This prosecution caused great disquiet – and not just in Fiji. King’s Counsel Martin Daubney, a former judge of the Supreme Court of Queensland, took up Naidu’s case and defended him in court. The nature of the proceedings triggered expressions of concern from the Law Council of Australia, the New Zealand Law Society, the Law Association for Asia and the Pacific, the Bar Association of India and the Commonwealth Lawyers Association.
But much has changed since the election.
As well as being a partner at Suva law firm Monro Leys, Naidu has been a prominent supporter of the National Federation Party – which is now part of the governing coalition.
And according to a report by the ABC, Sayed-Khaiyum left Fiji in December, is believed to be in Australia, and is the subject of a border alert issued by Fiji police.
The ABC says he is under investigation for allegedly “inciting communal antagonism”.
The issue at the heart of Naidu’s case is so trivial it should never have gone to court. It concerns a spelling error in a judgment of the Fiji High Court that was identified by Naidu in a Facebook post.
He noted that the judgment in question contained two references to the word “injection”.
He posted an image of the judgment and wrote: “Maybe our judges need to be shielded from all this vaccination campaigning. I’m pretty sure all the applicant wanted was an injunction.”
Nicholas Cowdery, KC, a former NSW director of public prosecutions, observed the proceedings on behalf of the Law Council and reported that Naidu had been denied procedural fairness and had not been afforded a fair trial.
The Law Council issued a statement saying Cowdery had concerns about the bona fides of the proceedings, an attempt to reverse the onus of proof, Naidu’s inability to test the evidence against him because he had been prevented from cross-examining Sayed-Khaiyum who was the sole prosecution witness, and the fact that the judge had refused to rule on Naidu’s challenges to the admissibility of evidence before conducting the hearing.
Before the election, the Law Association for Asia and the Pacific urged Sayed-Khaiyum to restore respect for the rule of law and “move the court to set aside the conviction and take no further steps against Mr Naidu”.
On December 21, Arthur Moses SC, a former president of the Law Council of Australia, provided a legal opinion on the case to the Fiji Law Society.
Moses writes: “Mr Naidu has suffered a miscarriage of justice, having been convicted of an offence otherwise than in accordance with the law.
“His conviction involved the reversal of the presumption of innocence and the burden of proof, relied on inadmissable evidence, saw procedural fairness denied and was substantially erroneous.
“The then attorney-general should not have pursued Mr Naidu’s conviction, nor should he have invited (the judge) into these errors …
“It is open to the person occupying the office of Fijian Attorney-General to apply to … set aside the contempt finding or seek that no sentence should be imposed on Mr Naidu.
“This would be in accordance with the duty of an Attorney-General to the administration of justice and would be a strong signal of adherence to the rule of law in Fiji,” Moses writes.
When Naidu appears in court next month, much more will be at stake than the fate of one lawyer who spoke up for human rights. The new government’s standing is on the line.