The President of the Australian Bar Association, Tom Bathurst, says the rule of law is under threat in Fiji because the government is ignoring legal rulings. The coup-installed interim government of commodore Frank Bainimarama recently issued a certificate terminating a Court of Appeal ruling that the regime is illegal. Mr Bathurst tells me the Australian Bar Association decided to criticise the Fiji government publicly because without an independent judiciary, the country risks a breakdown in the concept of rule of law, and this could lead to human rights abuses.
Radio Australia's Bruce Hill interviews the president of the Australian Bar Association, Tom Bathurst.
BATHURST: What triggered the press release was the information that we heard that the government was taking on itself to unilaterally overturn appeal decisions and other judicial decisions regularly made. The danger in that is of course that one of the balances on both the executive and the legislature is the judiciary upholding the law as it stands.
HILL: Well what was it that the government did in particular that you regard as being an indicator that the rule of law is under threat in Fiji?
BATHURST: Well the recent Court of Appeals decisions as to the constitutionality of the present administration.
HILL: The Fiji government, in particular the Attorney General, Aiyaz Sayed-Khayum, has criticised the Australian Bar Association for saying that, they're saying that you pre-judged the situation and didn't even consult with the government?
BATHURST: We didn't consult with the government; the government's shown that it hasn't really been consulting anybody in relation to its own decisions. But when this question of pre-judgement, on the fact of it we don't see any justification for overruling decisions of this nature, and certainly none's been proffered.
HILL: Is this a technical legal question or is this something a bit broader and deeper?
BATHURST: No we don't regard it as a technical legal matter. Take for example this country there is a constitution and the legislature and the executive are obliged to act within its constraints. If they don't the court is there to declare acts invalid. One can only imagine the outcry if the court having done so the legislature or the executive simply, well the executive more accurately simply say well we're going to just repeal that decision. And it's exactly the same position as in Fiji. It's not just a question of passing amending legislation to overcome a problem in the future, it's ignoring the constitutional constraints and ignoring past acts which wouldn't have been lawful under the existing constitution.
HILL: What could the potential consequences for Fiji be if this continues to be the path they go down?
BATHURST: Well the potential consequences that the government feels that it's unable to act with any of the existing legislative and constitutional restraints. It means in effect that the government doesn't act under what's generally called the rule of law, which people are entitled to namely that the government will act in accordance with the law of the country today as interpreted by the courts. I'm not suggesting for the moment there's been a total breakdown in law and order in Fiji, let me make that clear, but what I'm saying is this type of conduct can have the tendency in the long term will lead to that. The first thing dictators have often done is to abolish or take control of the legal system, and we've seen that consequence in a number of countries.
HILL: There are several lawyers from Australia and New Zealand practicing in Fiji and even taking up positions with the government. Do you think that they should think again before being involved in the Fiji government's legal activities?
BATHURST: Before the recent events I urged caution against people taking up judicial posts in Fiji, that's by and large now become academic. I don't suggest Australian lawyers shouldn't be involved there if only because to keep the legal system or to assist in the maintenance of the legal system. But I think they should be very careful taking judicial appointments in these circumstances.
Pacific Beat, Radio Australia