FOREIGN AFFAIRS: by Peter WestmoreNews Weekly
Australia's crude Fiji sanctions policy backfires
, November 14, 2009
The policy of the governments of Australia and New Zealand to impose sanctions on the judiciary in Fiji has backfired, leading to the expulsion of Australia's and New Zealand's high commissioners.
Australia's policy of punishing the government in Fiji is hypocritical, as it has not imposed any sanctions on other more repressive governments, including the governments of Burma, Vietnam and China.
In light of the fact that the Fijian judiciary protects the rights of Fijians and foreigners, the targeting of the judiciary, along with government officials involved in the military coup, has had the effect of weakening one of the institutions in Fiji which is independent of the government.
It has now given the military government of Commodore Frank Bainimarama a reason to expel Australian diplomats, and to withdraw its own representative in Canberra, effectively ending any dialogue with the Fijian government.Pivotal role
A pivotal role in recent events has been taken by the Chief Justice of Fiji, Anthony Gates. Chief Justice Gates has a long history of standing up for human rights.
He is a graduate of Fitzwilliam College, Cambridge, and a barrister of the Inner Temple, London. Before his legal career, he served as a volunteer teacher in Sierra Leone and Sri Lanka. Later, he practised at the Bar in London, before taking an appointment at the office of the Director of Public Prosecutions, Fiji, in 1977.
He became the deputy DPP in 1981 and a magistrate in 1985. He was dismissed as a magistrate in 1987 when he refused to take a fresh oath of allegiance to coup leader, Colonel Rabuka, the self-appointed head of state. He left Fiji to work for the Commonwealth DPP's office in Brisbane, Australia.
He returned to legal practice in Fiji in 1993 and was appointed to the High Court of Fiji in November 1999.
Justice Gates is best known for his judgments in which he held that the constitution of Fiji had not been abrogated by the military intervention in 2000, and that the constitution continued to be the law of the land. His decision was upheld by Fiji's Court of Appeal, in February 2001.
However, the decision, which should have led to the restoration of the Parliament suspended by the coup of 2000, was not obeyed by the government of the day, the government instead choosing to call for elections in 2001.
Justice Gates is also well-known for his decisions on enforcing freedoms for prison inmates from inhumane treatment, and for the treason-related hearings of persons alleged to have been involved in the political events in Fiji of 2000. He was appointed chief justice in 2009.
In a statement issued on 1 November 2009, Chief Justice Gates criticised both the Australian and New Zealand governments for their interference with the independence of the judiciary in Fiji.
Chief Justice Gates's criticism singled out Australia for its "insult and interference" in attempting to prevent judicial officers provided by the Sri Lankan government reaching Fiji.
"Like many a chief justice, I would normally be slow to issue a press statement, let alone appear on camera for such a purpose," he said in his statement.
"However, as head of the judiciary in Fiji, I must stand up against such interference. Fiji must have a judiciary. And it is not for Australia and New Zealand to tell us we cannot have one, or to tell us who we are to appoint."
No international convention allowed for countries to have a judicial supervisory role in a neighbouring state, he said.
"In the case of the serving Sri Lankan judges who are seconded to us, the Australian action amounts to an interference with the judiciary of another Commonwealth country, and no doubt the government of Sri Lanka will require an explanation for such interference."
The statement by Chief Justice Gates gave a detailed account of the travel ban on the Sri Lankan judicial officers and also of a recent controversy over the New Zealand government's reluctance to issue a humanitarian visa for a Family Court judge's baby who needed urgent eye surgery.
The result of the controversy was that Fiji's Prime Minister, Commodore Bainimarama, issued a statement which accused Australia and New Zealand of "a consolidated effort to attack Fiji's independent judiciary".
He said, "The Chief Justice told me that the policy of the Australian and New Zealand governments stops him from nominating credible, well qualified individuals to serve on the Bench.
"He also highlighted the fact that such interference is unheard of, in particular in the absence of evidence that members of the judiciary are breaching any laws, either internationally or in Fiji. If anything, the brave men and women who have joined our judiciary are contributing to the enforcement of the rule of law. They have shown fortitude and a commitment to the law."
The Federal Government should immediately reverse its ban on the judiciary in Fiji, and make it clear that it will assist the operation of one of the independent bodies which exist in the country. This would undo the crudely-applied sanctions which have needlessly destroyed relations between Australia and Fiji, and should pave the way for a more constructive dialogue.