NZ Law Society cautions against taking judicial appointments in Fiji
Updated
Fiji's military Government is expecting to appoint a new judiciary, and is waiting on the President to sign a judicial services decree, which would hire or re-hire officers of the court. New Zealand's Law Society is warning its members against accepting any invitations to join what it considers an illegal administration.
Presenter Geraldine Coutts
Speakers: Interim attorney-general Aiyaz Sayed-Khaiyum, University of New South Wales Professor George Williams
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AIYAZ SAYED-KHAIYUM: The judicial services decree would have provisions in respect to creating the court structure and by all accounts it would be a court structure that's similar to, existed in the abrogated constitution.
GERALDINE COUTTS: The structure of the courts will continue as before with the Magistrates Court, High, Court, Appeal and Supreme Courts function under the now abrogated 1997 constitution. Mr Sayed-Khaiyum is still unsure when the judicial services decree will be signed by the head of state Ratu Josefa Iloilo.
AIYAZ SAYED-KHAIYUM: It should be signed fairly soon actually and then of course appointments will be made subsequent to that decree.
GERALDINE COUTTS: Fairly soon meaning today or this week?
AIYAZ SAYED-KHAIYUM: Very soon.
GERALDINE COUTTS: (LAUGHS) Is that today or this week or next week?
AIYAZ SAYED-KHAIYUM: Well that's actually at the discretion of the president.
GERALDINE COUTTS: So it's before him now?
AIYAZ SAYED-KHAIYUM: He will obviously sign the decree but obviously we need to have the courts up and running and that will be done in due course.
GERALDINE COUTTS: The interim attorney-general was not able to indicate if, when the appointments are made, what the ratio between re-appointments and new appointments will be. Professor George Williams who is Wales has had years of experience working in Fiji's court system. Professor Williams believes it doesn't matter what dressing the military regime gives its legal system, they are operating outside the law according to last week's Appeal Court ruling the 2006 coup illegal.
GEORGE WILLIAMS: Well, there's no doubt that the new administration in Fiji is operating outside the law. And that includes outside of the law as identified by the recent Court of Appeal decision. That's because that decision found that the extraordinary prerogative powers the President had previously claimed did not exist. The court also recognised that the constitution of Fiji does set down the rules that apply in these situations and they certainly do not enable a President to appoint himself as a new head of state under any new legal order.
GERALDINE COUTTS: Is it that hard and fast? Because Justice Powell who had already handed down this decision also conceded that laws do change and opinions do change and it's subjective. I guess that the ruling of Justice Gates found that there could be perogative power given by the President, its just that this set of judges didn't see it that way.
GEORGE WILLIAMS: And it is true that the Court of Appeal overturned an earlier decision of the High Court of Fiji but the Court of Appeal is a higher court, it does remain the law of Fiji even though there's been an attempt to overturn it. If the regime had wanted to attempt to get that law changed they had the option of appealing to the Supreme Court, there's a fair process to go through. I think they probably would have lost on appeal and that may be one reason why instead of going through the system they overturned it.
