Suva lawyer Richard Naidu is a free man after the Suva High Court ruled this week that no conviction be recorded against him.

High Court judge Justice Daniel Goundar ruled on Tuesday that the charge of contempt scandalising the court against Naidu be dismissed.

He said summons to set aside the judgment that had found Naidu guilty in November last year was by consent and was dismissed as he did not have jurisdiction.

Justice Gounder ordered the parties to bear their own costs.

While delivering his judgment, Justice Gounder said while mitigation and sentencing were pending, a new government had come into power and a new Attorney-General had been appointed.

He said that after the change of government [FijiFirst lost the general election last December], Justice Jude Nanayakkara, who had been previously presiding over the case, had resigned as a Fiji judge and left the jurisdiction without concluding proceedings.

Justice Gounder said the new Attorney-General, Siromi Turaga had taken a different position regarding the proceedings, which he had expressed in an affidavit filed in support of the summons to dismiss the proceedings.

Ruling set aside
Turaga stated that his view was that the proceedings should never have been instituted against Naidu in the first place.

In the affidavit, Turaga said he had conveyed to Naidu that his view was that the ruling of 22 November 2022 ought to be set aside and the proceedings dismissed.

He added that Naidu had confirmed he would not seek to recover any costs he had incurred in defending the proceedings.

Justice Gounder said the Attorney-General played an important function as the guardian of public interest in contempt proceedings which alleged conduct scandalising the court.

Lawyer Richard Naidu’s conviction ruled not to be recorded and the charge of contempt dismissed. Video: Fijivillage.com

He said the position of the Attorney-General had shifted and he was not seeking an order of committal against Naidu.

The judge said Turaga dkid not support the findings that Naidu was guilty of contempt scandalising the court.

He said it had not been suggested that the present Attorney-General was acting unfairly as the representative of public interest in consenting to an order setting aside the judgement.

Facebook posting
Naidu was found guilty in November last year by High Court judge Justice Jude Nanayakkara for contempt scandalising the court.

Naidu posted on his Facebook page a picture of a judgment in a case represented by his associate that had the word “injunction” misspelt [as “injection”], and then made some comments that he was pretty sure the applicant wanted an injunction.

The committal proceeding was brought against Naidu by the then Attorney-General, Aiyaz Sayed-Khaiyum.

Naidu was represented by Jon Apted while Feizal Haniff represented the Attorney-General.

Rashika Kumar is a Fijivillage reporter. Republished with permission.

Article by AsiaPacificReport.nz

It has been six months now, but I have to make a strange admission. I miss the laughs I used to get over the pseudo-authoritative pronouncements of Fiji’s former attorney-general Aiyaz Sayed-Khaiyum (pictured).

I recall that he got a bit over-excited in January this year. That was when he decided to lecture the new government on “constitutionalism” and “rule of law”.

This was apparently without any reflection on how he and his FijiFirst party government had performed by the rule of law standards on which he was pontificating.

But in the last few days he decided to debate Deputy Prime Minister Manoa Kamikamica on the FijiFirst party’s 2022 financial accounts, apparently insisting that FFP was not insolvent.

This was never going to be an equal contest. Kamikamica is a chartered accountant. Aiyaz Sayed-Khaiyum, well — he isn’t.

You don’t need to be an accountant to read a balance sheet — or to understand the simple definition of insolvency.

It’s not hard. You are insolvent if you “cannot pay your debts as they fall due”. You can find the accounts of all the main political parties on the Fiji Elections Office website.

More cash than others
FFP’s balance sheet (see image) says it has cash and term deposits of more than $270,000 in the bank.

That’s pretty good. It’s actually more cash than all the other political parties combined. But FFP also has debts (called, in accountant-speak, “payables and accruals”).

These come to well over $1.6 million. Once you add and subtract all the smaller stuff, FFP is left with net liabilities of just over $1 million.

In other words, that’s $1 million that FFP, even if it sold everything it owns, still could not pay to its creditors.

That $1.6 million in debts “fell due” months ago. And FFP could not pay them as they fell due. So FFP is insolvent.

Why pretend otherwise? Luckily for FFP, there isn’t a simple legal way for a creditor to wind up a political party for not paying its debts. Presumably FFP’s unpaid suppliers have learned that bitter lesson a bit late.

Learning lessons
But we are all learning lessons about FFP. Six months ago it was all-powerful. Its leaders sat in taxpayer-funded government offices and did (pretty much) whatever they wanted.

They regularly lectured the rest of us on all of our failings and all the things we were doing wrong. They exuded competence. Fast forward to June 2023.

The same FFP — which previously ran a government that spends $4 billion a year — had been suspended because it couldn’t prepare its own accounts on time.

The deadline for submitting political party accounts is March 31 each year. That’s in the Political Parties Act. Aiyaz Sayed-Khaiyum presumably knew that because, after all, he “wrote the law”.

FFP’s accounts were not submitted by March 31. The Acting Supervisor of Elections (in stark contrast to her predecessor) did not fire off a suspension letter one day later.

She gave FFP (and some other political parties) an extension of time to put in their accounts. Six weeks later, FFP still had not filed its accounts.

And at that point even the most reasonable supervisor is entitled to be annoyed. That was when the suspension letter went out. Aiyaz Sayed-Khaiyum’s reaction at the time was the usual legalistic bluster unsupported by the facts. FijiFirst, he said, had not been afforded “due process and natural justice”.

Failed to meet deadline
He did not elaborate. And what could he say? His party had been given a six-week extension of time and still not met the deadline under the law he had himself drafted. And then we found out.

FFP was deeply in debt — and presumably too embarrassed to tell the rest of us. If it hadn’t been suspended, we would probably still not know.

What else can we learn from the accounts of the former ruling party? We can see from its balance sheet that it began 2022 with (cash and term deposits) more than $860,000 in the bank.

That’s the sort of money other politicians could only dream of. At that time the People’s Alliance and National Federation Party, between them, had less than $20,000.

However FijiFirst then went on to spend $4.2 million — or more accurately, it ran up debts of that amount, and now it has to find $1.6m to pay off those debts.

That is because FFP raised only $2.2 million in donations. I say “only” — but that $2.2 million was twice as much as the three parties now in government could collect.

More lessons
There are other, bigger, lessons to learn from all of this — lessons about money and politics. What was FFP thinking as it threw around the cash in the 2022 election campaign?

Who would spend $1.6 million they didn’t have? The answer — a party that thought that, as long as it could win, the cash would keep rolling in.

No political party in Fiji’s history has ever had millions of dollars to spend.

And no political party in Fiji has ever cashed in on its political power as cynically as FFP did in the past 10 years. It was FFP that made the laws on electoral funding for political parties.

Companies were not allowed to contribute — only individuals and only up to $10,000 each. All donors had to be publicly disclosed — this included someone who put $2 in a bucket during a soli.

SODELPA leader Viliame Gavoka famously commented on how the laws required his party to issue a receipt for selling a $1 roti parcel. FFP of course, did not have to bother with the small stuff.

Soli? Roti parcels? Why bother when you can just wait for the $10,000 cheques? And the cheques rolled in — with embarrassing enthusiasm.

Early donor lists
Many of us saw the early FFP donor lists when they were published. Prominent business families fell over themselves to write their $10,000 cheques.

Of course, these cheques were from “individuals”. Those individuals were company directors, their spouses and even their under-age children, even if those children (and probably some of the spouses) didn’t have bank accounts to write cheques from.

You would hear from other, less enthusiastic, business people about invitations to FFP fund-raisers. You went — and you took your chequebook with you — because if you didn’t, well…

One business man complained to me: “If I pay, I get to talk to them — but they don’t do anything about my business problems anyway.”

Fiji is not the first country to encounter unhealthy problems about money and politics.

These create challenges in every democracy. In Fiji’s so-called “true democracy”, the rules about who donated money were supposed to be transparent.

The Political Parties Act originally required the Supervisor of Elections to publish the names of people who donated to political parties. But as FFP’s donors squirmed with discomfort under the spotlight of social media, in 2021 FFP quietly changed the law — buried, of course, in one of those Bills that would be rushed to Parliament on two days’ notice and rushed through the infamous Standing Order 51.

The law change meant that those party donor lists still had to be disclosed to the Supervisor of Elections — but the Supervisor no longer had to publish them in the newspapers.

Climate of political fear
Of course, in the climate of political fear that FFP actively promoted, that created a separate problem.

The ruling party always collects the millions. But the opposition parties would have to work much harder to collect their cash because no one with any serious money wanted to be identified on those disclosure lists as giving money to the opposition.

Because, even though the Supervisor of Elections no longer had to publish those lists, any member of the public could still inspect them.

Most Fiji citizens might not know that. But the one person who would know that was the general secretary of FFP — also the minister for elections, attorney-general and minister for economy.

Now, however, for the first time since 2014, we can do something about our money-and-politics laws.

Those laws need to be reviewed, with a strong eye on the lessons of the past.

But the most critical lesson is probably not about those laws. It is about the climate of fear that enabled one political party to raise millions of dollars to keep itself in power while keeping all of its opponents out of cash.

Some good news?
Finally, for diehard FijiFirst supporters — a small spot of good news in those accounts. Apparently FFP still has 6120 “promotional sulu” in stock.

The sulu, according to the accounts (Note 11), have been “fully expensed”. This is because “realisable value cannot be determined with reasonable accuracy.” This is the way accountants say: “We don’t think anybody wants them so we can’t put any value to them.”

Perhaps to show their loyalty, FFP’s fans could buy the sulu to pay off the $1.6 million debt. This would cost only $270 per sulu. Just thought I’d try to help.

Richard Naidu is a Suva lawyer who writes a regular independent column for The Fiji Times. He has enough sulu. Republished with permission.

Article by AsiaPacificReport.nz

The gamble that the previous FijiFirst government took in 2016 — in reducing the value added tax (VAT) rate from 15 percent to 9 percent — was basically done to please the people, says Fiscal Review Committee chair Richard Naidu.

He said this gamble failed miserably because government expenditure continued to increase while the income it received was reduced.

“I think that for a long time, the government has been underfunded,” Naidu said.

“We forget that VAT used to be at 15 percent and personal income tax used to kick in at $16,000 [NZ$12,000] and now kicked in at $30,000 [NZ$22,000].

“So, what happened was that for the last 10 or so years, we have reduced the amount of tax we take, basically to please people.

“We’ve cut the VAT and we’ve cut personal income tax, but we’ve kept spending.

“We took a gamble that somehow this would create economic growth and the gamble failed.”

Debt level a threat
He said the possibility of adopting some of the old tax rates was unavoidable as the level of debt the country had was a threat in itself.

“The advice that we are getting is that we have to get our debt to GDP (gross domestic product) ratio down and over a 10-year period.

“What we are saying is that debt does not drive what we do.

“We have to have a national vision; we have to execute that vision, but we have to keep in mind the debt, because the debt is one of the threats that we are facing.

“Now really all we are saying is that in respect of some taxes — not all — we might have to go back to the old rates.

“So, when people say this is terrible, this should never happen and we’re being cruel and imposing pain, people need to remember that this is actually what the tax rates used to be.”

Naidu stressed that the abnormal situation that people were referring to was what the economy endured in the last 10 years when it could not raise enough money to fund critical infrastructure investments.

Playing catchup
He said this was why the current government had to play catchup and raise funds to meet the needs of the people.

“That means we have delayed investments in critical infrastructure.

“Why is it that we have thousands of people in the Suva-Nausori corridor who do not have water for 10-12 hours a day.

“It is because we did not invest and now, we have to play catchup, we have to invest harder and faster, and we don’t have the money and somehow, we have to raise that money quickly.

“So, we do not have a lot of choices in terms of the investments that we have to make.”

Meri Radinibaravi is a Fiji Times reporter. Republished with permission.

Article by AsiaPacificReport.nz

FijiFirst leader Voreqe Bainimarama remains as Leader of the Opposition despite his suspension from Parliament on Friday for breach of privilege, according to Fiji constitutional lawyer Richard Naidu.

Naidu told the Sunday Times he believed that Bainimarama was entitled to retain the salary and other rights that go with the job — although “there might be a legal argument” about that.

He said that the Leader of the Opposition was different from other MPs who had previously been suspended.

“He is not an ordinary MP. His position is established under the Constitution. Under Section 78, he is elected from among the Opposition members,” he said.

“Under Section 78 of the Constitution, he keeps his job even after the dissolution of Parliament.”

Naidu said the Opposition Leader had other constitutional roles outside Parliament, including being a member of the Constitutional Offices Commission (COC).

“He is also one of the people who may nominate a new President for Parliament to vote on under Section 84.

‘Must not be varied’
“It seems that he can continue to do these jobs — and to keep his salary, which Section 80 of the Constitution says “must not be varied to his disadvantage”.

“Other suspended MPs have had their salary payments suspended while out of Parliament.

“So there might be a legal argument about that.

“But other suspended MPs did not hold a substantive office as Mr Bainimarama does.”

Naidu said that despite the suspension, Bainimarama remained an MP — however, he could not attend Parliament for three years.

“While he is suspended, he is not replaced in Parliament. This means the voting strength of the FijiFirst Party drops to 25 while he is suspended.

“It is for the Opposition MPs to work out how they will operate in Parliament while Bainimarama isn’t there. But while he continues to hold the post, a new Leader of the Opposition cannot be appointed.

Could be voted out
“Under the Constitution, if a majority of Opposition members want Bainimarama out, they could vote him out.

“He could resign as Leader of the Opposition only and keep his seat as an MP. Or he could resign both as Leader of the Opposition and as an MP.

“If he resigned as an MP, a new FijiFirst Parliamentarian would come in; the next one on the list of candidates who missed out in the 2022 election.”

Questions regarding the suspension were sent to both Bainimarama and FijiFirst party general secretary Aiyaz Sayed-Khaiyum yesterday.

However, no response was obtained when this edition of the newspaper went to press.

Shayal Devi is a Fiji Times reporter. Republished with permission.

Article by AsiaPacificReport.nz

Five weeks on from Christmas Eve, I think most of us are still a bit stunned at what has happened in Fiji.

A new government came to power in dramatic circumstances.

It took not one but two Sodelpa management board meetings to change it, with razor-thin margins.

The same drama extended into Parliament.

There was definitely a bump in the road when the military openly expressed concern about the speed of change.

But that was navigated smoothly.

One other thing stood on a razor-thin margin.

Nobody in Fiji should forget it.

‘Rule of law’
A little thing called “rule of law”.

In a Fiji Times column last week, I tried to capture the idea of this.

First, the idea that the law is more important than everyone, including the government.

But second, the idea that the law is more than just rules and regulations which restrict us.

Rule of law means also that the government is bound to respect ordinary people’s rights and freedoms.

That rule of law was seriously at risk under the FijiFirst government.

Things had gotten to the point where, using bullying and fear, unafraid of the courts or any other institution which might restrain it, the FijiFirst government just did what it wanted.

In its last year of power, the only restraint on FijiFirst was the fact that an election was coming.

Turned on opponents
Had it won that election, FijiFirst would have turned its guns on the only opponents it had left — the opposition political parties, the independent news media and the few non-government organisations that continued to criticise it.

Fiji would have fallen firmly into that growing group of countries now called “democratic dictatorships” — places which have elections and the other trappings of democracy, but which in truth severely restrict the democratic rights and freedoms of their people.

Four key officials holding important constitutional positions — the Chief Justice, the Commissioner of Police, the Commissioner of Corrections and the Supervisor of Elections — have been suspended inside of four weeks.

That tells us one of two things.

Either the new government is particularly vengeful.

Or there are complaints against these officials that date back to the FijiFirst party’s time in power and which are only now coming to light.

After all, they’ve hardly had time to offend us under the new government.

And if these are in fact complaints about things which happened long ago, we must ask — why were they not actioned under the FijiFirst government?

No one dared complain
Or was fear of the government so pervasive that no one dared to complain against these officials — and the complaints are only being made now?

We need to know about these complaints.

Yes, each of these officials is innocent until proven otherwise.

But they are public officials, occupying some of the most powerful and critical positions in the country.

The decisions they make concern our most basic rights and freedoms — whether or not we spend a night in a cell, whether (and when) we will get a ruling on our employment dispute, or whether we are able to vote.

So we, the public, have a right to know what they are accused of.

What has changed?

The overwhelming sentiment for most of us — at least those around me — is a new sense of freedom.

Doesn’t change things
For many of us, that does not really change things from day to day.

Not everyone has the compelling urge to air their opinions on everything (in newspaper columns or elsewhere).

But it is simply the fact that if you want to rant about something on Facebook, you’re not worrying about what the government will think.

Most of us, day to day, are not worrying about whether we will be unfairly held for 48 hours in a jail cell.

Yet only two years ago in the covid crisis, the police were doing that to hundreds of people.

We are not worrying about whether we will be arrested for saying something which will “cause public alarm”.

Yet, every time an NGO or opposition political party leader issued a public statement in the last 10 years, this was a constant worry.

But much of the real damage done was at the next level down — the level where ordinary people like us want to get things done.

This week I met a small group of distinguished doctors.

Climate of fear
I heard with some amazement about the climate of fear which predominated in the Ministry of Health.

Criticism was not permitted.

In November last year, the permanent Secretary for Health publicly told politicians to “leave the Health Ministry alone”.

Nobody, he said, should talk about it.

Nobody should “undermine” it — because it was on the cusp of great things.

One senior medical specialist who famously criticised the state of our hospitals in The Fiji Times was immediately banned from entering them.

This was hardly a hardship — he was only volunteering his skills for free.

But what about all the patients who he was looking after?

He recounted to me, with some wonder the bureaucratic memo-writing process that is now being followed to bring him back.

Cash and volunteers
The International Women’s Association has cash and volunteers ready to improve women’s and children’s health at CWM Hospital.

We are talking about basic things, like hot water and decrepit bathrooms.

How do you run hospital wards without hot water?

IWA’s mistake was to make these deficiencies public on social media.

So the Health Ministry stopped talking to IWA.

Only with the change of government is IWA allowed to openly communicate with the Ministry of Health about what it wants to do — instead of whispers to officials on their gmail accounts.

For years, I have marvelled at the stupidity of the edicts issued from Ministry of Education headquarters.

Schools may not fund-raise without permission.

Schools may not invite speakers to their school assemblies without permission.

Schools may not run extracurricular classes for students without their permission.

‘In name of equality’
The policy seems to be “in the name of equality, we must all be equally dumbed down”.

As the Education Ministry pursued the government’s mad obsession with our “secular state”, schools owned by religious bodies cannot choose their own school heads, even if they pay for them and save the government money.

Education and health are critical issues for all of us.

The government can’t deliver everything.

Governments by nature are unwieldy, bureaucratic and slow (sometimes for good reason, because they have to carefully manage public funds and follow other laws).

So people have to get involved.

Get involved

We also have to get involved on a wide swathe of other issues such as poverty, domestic violence, drug abuse, crime and economic opportunities.

Criticism not welcome
These are all things which, for the past 15 years, we were told, the government had under control — like “never before”.

Our input — and certainly our criticism — were not welcome.

Let’s be clear about our new government.

We might be glad that it’s there.

And we should never take for granted the rights and freedoms it has restored to us and the refreshing new attitude it brings after 15 years.

But soon the honeymoon will end, the shine will come off and we will all have to get down to the work (which never ends) of solving our deep social and economic problems.

The expectations on the new government are huge.

Everybody wants every problem to be solved and every complaint to be answered.

We want every crook who has received an unfair benefit to be (as we now always seem to say) “taken to task”.

Same huge debt
The new government has the same huge debt, the same shortage of cash and the same lack of resources the old government did.

It can move some money around and change some priorities — but it can never solve every problem.

But a government that is prepared to tolerate criticism has at least one advantage over one that is not.

It can hear from real people about where the real problems are.

That’s why freedom of expression is not just a nice thing to have.

It’s actually important to tell us what is going on.

This government, like the old one, will gradually become more complacent and unresponsive as it becomes burdened with the ordinary business of administration.

And that is why every democracy — at least every real one — prizes freedom.

Freedom to march
Freedom for people to criticise, to march in the street, to take the government to court, without being punished for it.

These are some of the tools we use to hold the government to account, to remind the politicians that it is about us, not them, and to embarrass the politicians into action.

But just as important is the responsibility on us not just to talk — but also to act.

Our new freedom also means freedom to get involved.

What are the things that are important to us?

Is it health?

Education?

Child poverty?

Prison reform?

Our local environment?

So what will we do?

Don’t take it for granted
We don’t need to be part of some official committee or NGO to fight for the things that are important to us.

We don’t need the government’s permission to hold a public forum to talk about problems and solutions.

After 15 years we need to be able to say to our leaders: “We’re in charge here. This is what we want. You work for us.”

They won’t always listen — but that’s what freedom is.

It was a close-run thing on Christmas Eve — but freedom is what we got.

So let’s not take it for granted.

Let’s use it.

Richard Naidu is a Suva lawyer who is fairly free with his opinions. The views in this article are not necessarily the views of The Fiji Times. Republished with permission.

Article by AsiaPacificReport.nz

Politicians can respond to the political rhetoric but claims that the new Fiji government has broken the law are a more serious matter, says prominent Suva lawyer Richard Naidu.

Reacting to FijiFirst general secretary Aiyaz Sayed-Khaiyum’s claims that there have been a number of incursions into the separation of powers since the government came in, Naidu said Sayed-Khaiyum had made no specific allegations that the People’s Alliance-led coalition had breached the “separation of powers”.

“In layman’s terms, ‘the separation of powers’ means only that the legislature (Parliament), the executive (Cabinet and civil servants) and the judiciary (judges and magistrates) should each ‘stay in their lanes’,” he said.

“They should not interfere in each other’s functions.

“Aiyaz has made no specific allegations that the new government has breached this concept. What law does he say has been broken?”

Naidu also questioned the procedures that were taken to set up the 2013 Constitution.

“Aiyaz’s FijiFirst party government applied the constitution as it suited them.

“It never set up the Accountability and Transparency Commission that the Constitution required (s.121); it never set up a Ministerial Code of Conduct as the Constitution required (s.149); it never set up a Freedom of Information Act as the Constitution required (s.150).

“This was, after all, his own government’s constitution.”

Rakesh Kumar is a Fiji Times reporter. Republished with permission.

Article by AsiaPacificReport.nz

Who’s broken the law? “Separation of powers” and all that stuff.

Aiyaz Sayed-Khaiyum’s hour-long news conference on Saturday, January 21, seems mostly to have followed the usual FijiFirst party format.

He pontificated at length while his party’s MPs stood silently behind him.

From what I could tell, Sayed-Khaiyum’s speech was a mixture of political criticism and claims about the law. The politicians can respond to the political rhetoric. But claims that the government has broken the law are a more serious matter.

Sayed-Khaiyum has raised a number of complaints suggesting that the new government has broken the law. He has not been very clear about why this is so. However, for the record, let’s go over these complaints (or at least what he seems to be suggesting):

that former Constitutional Offices Commission members were unlawfully removed from office

Wrong. The Commissioners were asked to resign. They did so. No law prevents them from resigning. If they had refused to resign, they would have remained in place (as others have done).

Sayed-Khaiyum says that the PM had “no authority” to ask them to resign. Wrong. Nobody needs “authority” to ask anyone else to commit a voluntary act. The former Constitutional Offices Commissioners are not the property of the FijiFirst party. No law has been broken.

that the Minister for Home Affairs should not have asked the Commissioner of Police to resign

Wrong. It is a free country. The minister may make any request he wants — and the commissioner may accept or refuse that request.

The commissioner refused the minister’s request, saying he wanted the Constitutional Office Commission process be followed. The commissioner remains in place.

No law has been broken.

that prayers at government functions breach the Constitution

Sayed-Khaiyum read out s.4 of the Constitution (“Secular state”) and claimed that at government functions prayers were now only offered in one religion (presumably the Christian one).

To suggest that this is something new — that this did not happen under the FijiFirst party government — is fantasy. And I too wish that those who offer prayers were sometimes a little more sensitive to other religions.

But that is not the point. The Constitution does not tell any of us how to pray.

No law has been broken.

“not referring to all citizens as Fijians”

The Constitution may refer to all citizens as “Fijians”. But the Constitution also guarantees freedom of speech. There is no law that says we must all call each other “Fijians”. We may call each other what we want.

No law has been broken.

replacing boards of statutory authorities before expiry of their terms

Sayed-Khaiyum should be specific. Which boards is he referring to? If board members have resigned and been replaced, then what I have already said about resignations also applies.

For a number of statutory bodies the minister has, under the relevant law, the power to appoint board members. This power generally includes the power to dismiss them.

Replacing boards or board members mid-term is certainly nothing new. Sayed-Khaiyum may recall a recent example while he was Minister for Housing. He requested the entire Housing Authority board to resign before the expiry of their terms (and they complied).

No law has been broken.

taking back ATS [Air Terminal Services] workers. Sayed-Khaiyum seems to think that because a court decided that ATS is not required to take the workers back, ATS cannot do so.

Wrong. Any parties to litigation — including employers and employees — can decide to settle their differences at any time — including after a court ruling. The new government has requested ATS to take its former employees back. If ATS has a legal problem with this, no doubt it will tell government.

No law has been broken.

that using vernacular languages in Parliament breaches Standing Orders

Other than for the formal process of electing the Speaker and the Prime Minister, Parliament has not yet even sat yet.

The new government wants to allow the use of vernacular languages in Parliament. The current Standing Orders do not permit this.

So, to allow the use of vernacular languages in Parliament, the government will have to propose changes to the Standing Orders and parliamentarians will have to vote for them. That is normal procedure (Standing Order 128).

No law has been broken.

“separation of powers”

Under the FijiFirst party government, this phrase seemed to be thrown around to justify anything. For example, the Parliament Secretariat would frequently refuse to allow opposition MPs to ask questions of government ministers because of “the separation of powers”.

This justification made no sense. Section 91 of the Constitution requires ministers to be accountable to Parliament.

In layman’s terms, “the separation of powers” means only that the legislature (Parliament), the executive (Cabinet and civil servants) and the judiciary (judges and magistrates) should each “stay in their lanes”.

They should not interfere in each other’s functions. Sayed-Khaiyum has made no specific allegations that the new government has breached this concept. What law does he say has been broken?

FijiFirst and the Constitution

Sayed-Khaiyum’s FijiFirst party government applied the Constitution as it suited them.

It never set up the Accountability and Transparency Commission that the Constitution required (s.121) It never set up a Ministerial Code of Conduct as the Constitution required (s.149).

It never set up a Freedom of Information Act as the Constitution required (s.150). This was, after all, his own government’s constitution.

His government treated Parliament — the elected representatives of Fiji’s people — with contempt. Almost all of its laws were passed under urgency (Standing Order 51).

Typically, parliamentarians got two days’ notice of what new laws the government was proposing, sometimes less. That meant no one had time to review the laws
or consult the people on them.

The FFP government treated the people’s laws as its own property. Sayed-Khaiyum complains about board members being removed and public service appointment rules not being followed. He says nothing about the numerous arbitrary terminations of many public servants under the FijiFirst party government, including the Solicitor-General and the Government Statistician.

It was no less than the Fiji Law Society president who this week described rule of law under the FijiFirst government as “sometimes hanging by a thread”.

Against this background, not many lawyers are prepared to listen to Sayed-Khaiyum lecture us on the law.

#LOCALNEWS Who’s broken the law? “Separation of powers” and all that stuff. Aiyaz Sayed-Khaiyum’s hour-long news conference on Saturday, January 21, seems mostly to have followed the usual FijiFirst party format. #TimesNews #FijiNews #FijiPol https://t.co/sblh8koJBs

— The Fiji Times (@fijitimes) January 22, 2023

If you’ve got a problem, go to court

The “separation of powers” doctrine is also clear that if you have a problem with the lawfulness of any government action, the courts are there to solve that problem. It is the
courts who decide if anyone has breached the Constitution. It is not the secretary of the opposition political party.

So, if Sayed-Khaiyum has a complaint that the law has been broken, he should do what the rest of us do — take it to court. That is what he frequently told the Opposition to do when it complained about what his government did.

Sayed-Khaiyum has a little more time on his hands now. He is a qualified lawyer with a practising certificate. So — get on with it. Bring your complaints to court, because
that is where they belong. Should Sayed-Khaiyum really be lecturing us about the law?

Finally, Sayed-Khaiyum has still not explained to anyone how, in the space of three days in January, he got himself kicked out of Parliament by accepting a position on the Constitutional Offices Commission — and then had to resign from the Constitutional Offices Commission when asked how he could continue as general secretary of the Fiji First Party.

Should we really be taking legal advice from him?

Richard Naidu is a Suva lawyer and a columnist. The views in this article are not necessarily the views of The Fiji Times. Republished with permission.

Article by AsiaPacificReport.nz

People are not powerless in a “real” democracy, says prominent Suva-based Fiji lawyer Richard Naidu.

Speaking to The Fiji Times during an interview, Naidu – who writes a weekly column for the newspaper – outlined why citizens should take an active interest in politics.

“I think people have got to understand that they are not powerless in a real democracy,” he said.

“They’re not powerless. They have to think about the health of their parents and education of their kids and why there’s no water in the taps, and ultimately that all comes back to politics, but they have to actually believe that they can do something about it.

“You know, in countries like Australia and New Zealand, the UK, members of Parliament, ministers — even the prime minister — they’re out every weekend, meeting their constituents. Constituents are asking them to deliver things.”

Naidu said the MPs in those countries understood that if they did not work for the people, they would be thrown out at the next election.

He added that was the accountability aspect of a democracy which allowed people and ordinary citizens to get close to government through the members of Parliament.

• The Fiji general election is on December 14.

Felix Chaudhary is a Fiji Times journalist. Republished with permission.

Article by AsiaPacificReport.nz

Amnesty International and Civicus have called on the Fiji government to drop contempt of court charges against a lawyer in Fiji for exercising his right to freedom of expression.

On 27 June 2022, Fiji’s Attorney-General Aiyaz Sayed-Khaiyum filed charges for contempt of court against senior lawyer and former journalist Richard Naidu for highlighting on social media an error in a court judgment where the word “injection” was used instead of “injunction’.

Amnesty International and Civicus said in a statement the charges were an “excessive and politically motivated response” to pointing out a spelling error in a court judgment and they violated the right to freedom of expression.

The Attorney-General acknowledged that the error pointed out by Richard Naidu was indeed a spelling mistake. He went on to claim that Richard Naidu’s post was malicious and invited others to mock the judiciary, referencing the comments and responses from others on social media.

Amnesty International and Civicus said they opposed the use of contempt of court or similar accusations used by the authorities deemed to amount to “scandalising the court” because this notion was inherently vague, and incompatible with the right to freedom of expression.

They were also not necessary for legitimate public interests (including the orderly proceedings of a court or the judicial process).

This type of contempt of court accusation was also subject to misuse, with penalties including large fines and imprisonment, the statement said.

Freedom of expression protected
“Under international human rights law and standards, the right to freedom of expression is protected. This right includes being allowed to make comments that may be regarded as critical, or even deeply offensive of government institutions, including the judiciary,” the statement said.

“Any restrictions on this right, including the threat of prosecution and punishment for ‘contempt of court’, must therefore be clearly provided for by law, and demonstrably necessary and proportionate for the purpose of protecting specified and legitimate public interests or the rights or reputations of others.

“In its General Comment on Article 19 of the International Covenant on Civil and Political Rights, which provides for freedom of expression, the Human Rights Committee, the UN body charged with overseeing the implementation of the Covenant by its member states, explains that:

“Contempt of court proceedings relating to forms of expression may be tested against the public order (ordre public) ground. In order to comply with paragraph 3, [providing for restrictions on this right] such proceedings and the penalty imposed must be shown to be warranted in the exercise of a court’s power to maintain orderly proceedings. Such proceedings should not in any way be used to restrict the legitimate exercise of defence rights.”

“The maintenance of orderly proceedings” included the protection of the rights of the accused and responding to acts which amount to obstruction of, and interference with, the judicial process, the joint statement said.

“Such powers must not be exercised in a manner that restricts the right to freedom of expression beyond those restrictions provided for in international human rights law.

‘Manifestly disproportionate’
“Pursuing a lawyer with legal punishment for pointing out accurately a spelling mistake in a public court judgment on social media is manifestly disproportionate and a violation of his right to exercise his freedom of expression. It could also be seen as an act of intimidation or harassment.”

Fiji’s civic space rating remained “obstructed”, according to the Civicus Monitor, a research tool the NGO uses to track the state of civil society and civic freedoms in 196 countries.

This was the most recent in a string of cases where legal proceedings have been abused to silence journalists, non-governmental organisations, political opponents, and lawyers.

Naidu faces hefty fines and possible imprisonment should he be convicted of the offences.

Other laws used to stifle freedoms include sedition provisions in the Crimes Act as well as the Public Order (Amendment) Act 2014 that have been used to target journalists, activists and government critics, while other sections of the Public Order Act have been used to arbitrarily restrict peaceful protests.

The Fijian government has resisted calls to allow the UN Special Rapporteur on the Independence of Judges and Lawyers to visit and assess the situation since 2009 when major judicial reforms were implemented.

“The recent contempt charge undermines the independence of lawyers and the legal profession and will have a chilling effect on freedom of expression,” said the statement.

“This is contrary to the government’s duty to ensure that lawyers are able to perform their professional duties, which include scrutiny of courts, safely and without any threat, intimidation or harassment.

Amnesty International and Civicus call on the Fiji authorities to:

• Immediately drop contempt of court charges issued on 27 June 2022 against Richard Naidu;
• Refrain from prosecutions of lawyers, journalists and non-governmental organizations solely for the peaceful expression of opinions online or in any other medium;
• Publicly commit to upholding the right to freedom of expression, which includes the right to be critical, consistent with international human rights laws and standards and Fiji’s Constitution; and
• Invite the UN Special Rapporteur on the Independence of Judges and Lawyers to visit Fiji and fully co-operate with their visit.

Article by AsiaPacificReport.nz

The Fiji government and other health experts must give the country a covid-19 crisis timeline, says prominent lawyer Richard Naidu.

He said they must provide some indication of how bad the pandemic would get and when they believed things would improve.

Naidu said this was imperative because the future of Fiji was dependent on the information.

“Businesses need to budget ahead,” he said.

“Many employers want to spread their remaining cash to help their workers.

“But they don’t know how long they will have to do it.

“Welfare organisations need to plan their future support for people who have been kept away from their work and have no income.

Schools need to plan
“Schools and parents need to plan for how long students will not be in class.

“Health professionals and family members need to plan for how to look after chronically ill people without access to normal health care.”

Naidu said the Fijian people needed a best case and worst-case scenario.

“And, of course, we need to know whose assessments they are,” he said.

“The government’s experts may say one thing.

“Other experts may take a different view.

“We need to weigh the credibility of the information we are given.”

Real-time information
Naidu said getting real-time information from the Health Ministry was critical to decision-making “but equally important are projections for the next three-month and six-month periods”.

He said Fijians needed to understand the possible number of cases the country would face and where they would peak.

“We also need to understand when those numbers will begin to decline and when we will return to some level of community safety.”

Health Secretary Dr James Fong did not respond to the concerns raised by Naidu.

RNZ News reports that the Fiji government has announced that it was too early to say if the coronavirus would be an endemic disease in the country.

This comes amid 12 deaths and more than 2000 infections recorded since the latest outbreak started in April. Prior to this, there were two deaths and 70 cases in March 2020.

Felix Chaudhary is a Fiji Times reporter. This article is republished with permission.

Article by AsiaPacificReport.nz