Michael Kidd: Fiji Legal System Breaking Down

“The difference between murder and manslaughter is in the element of intent.”
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But a recent decision by the Fiji Government to reinstate Francis Kean to the post of Commander of the Navy illustrates just how far the rule of law has fallen in Fiji, and high lights the deficiency of two other decisions of the Fiji High Court.

In the State v Kean [2007] FJHC 69; HAC 037.2007 (26 October 2007) the Court sentenced Mr. Kean to just 18 months for manslaughter of a man whom he had kicked in the head on the ground, after advancing on and pulling that person out of a taxi and repeatedly punching - after that person had made some drunken offensive comments which most people would ignore.

The Fiji DPP only charged Mr. Kean with manslaughter when in fact the above factual situation fully fits a murder charge. The Judge in sentencing held that kicking the victim in the head was only an aggravating feature of manslaughter, but did not comment on the inappropriateness of the charge of manslaughter instead of murder.

Mr. Kean is the brother in law of Frank Bainmarama.

In January 2007 a law practitioner, who was also a military officer, marched the then Chief Justice out of the CJ’s chambers at the point of a gun. No impropriety has ever been established against Daniel Fatiaki and he recently resigned after reaching an out of court settlement of $250,000.00 with the Fiji Government. The Fiji Law Society quite properly suspended that practitioner’s law practice certificate and after some deliberation reinstated it. The High Court allowed a human rights complaint, by the Fiji Human Rights Commission on behalf of that practitioner, to proceed against the Fiji Law Society
even though, according to Australian judicial authority, such action was clearly an abuse of process: Gunns Ltd & Ors v Marr & Ors (No. 2) [2006] VSC 329 (28 August 2006) Supreme Court of Victoria. The court made no attempt to address the submissions by a senior Australian lawyer (myself) brought into Fiji to argue the case.

The Judge sitting on that case was Mr. Justice Gates who was the Acting Chief Justice replacing the unfortunate Fatiaki.

Finally, the recent three judge panel (9 October 2008) that decided the December 06 coup was lawful was headed by the same Justice Gates, and it held that the President had authorized the coup even though Mr. Bainmarama had appointed himself acting President during the early part of the coup, and a press announcement from the President’s office on the day of the coup “did not condone” the over throw of the elected Government.

The reasoning given in this judgment was both at variance with the publically known facts and intellectually dishonest as it used British colonial cases whereby various Governor Generals had dismissed colonial governments, and even drew some comfort from the infamous Whitlam dismissal and the use of so called reserve powers. Of course the Whitlam dismissal was given some propriety as elections were called promptly which has not been the case in Fiji.

There is a decided murkiness and lack of transparency in these decisions and their associated administrative outcomes which inevitably lead one to question the direction and independence of the judicial process in Fiji.

Dr. Michael Kidd is an Auckland barrister who taught law at the University of South Pacific, Suva, 1998 - 2002

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