e. Denial of Fair Public Trial
The law provides for an independent judiciary, but during the year the government interfered with judicial independence in practice.
The judicial structure is patterned on the British system. The principal courts are the magistrates' courts, the High Court, the Court of Appeal, and the Supreme Court. Except for the Family Court, Employment Court, and various administrative tribunals, there are no special civilian courts. Military courts try members of the armed forces.
On April 9, a panel of three judges of the Court of Appeal ruled that the 2006 military coup was unlawful, and that the appointment of Bainimarama as prime minister in 2007, and the appointment of his interim cabinet, were unconstitutional.
In response, on April 10, President Ratu Josefa Iloilo signed a decree that abrogated the constitution and terminated the appointments of all judicial officers appointed under the provisions of that constitution. The courts closed for three weeks and reopened on a limited basis at the end of May after the government made initial appointments to the lower courts. In June and July, high court judges were appointed. Due to a shortage of judges, some high court judges also were appointed to serve concurrently on the Court of Appeal and the Supreme Court, with different individual justices hearing a case referred from one of these higher courts to another. Sittings of the higher courts were deferred, leading to an even greater backlog of cases. The chief registrar also was dismissed and replaced by an army lawyer who was made a magistrate in 2007.
The Administration of Justice Decree of April 16, which reestablished the courts, prohibits all tiers of the judiciary from considering cases relating to the 2006 coup; all acts of the interim government between December 4, 2006 and April 9, 2009; the abrogation of the constitution on April 10; and all government decrees. The military-appointed chief registrar issued termination certificates for all such pending cases.
The government had difficulty reconstituting the judiciary, leading to complaints those appointed after the April dismissal of the existing judiciary were not properly qualified, especially in such complex areas of the law as commercial and contract law. Women's NGOs also asserted that some new magistrates made inappropriate comments and exercised poor judgment in domestic violence and sexual assault cases, and that because of media censorship under the PER, the public was not informed about the mistakes made by these magistrates.
On July 16, the government dismissed the chief magistrate after he protested the firing of another magistrate earlier the same month. On December 2, the government appointed the chief registrar to serve concurrently as chief magistrate. On December 30, the government dismissed as "threats to national security" the assistant director of public prosecutions (DPP) and three more junior prosecutors. Also on December 30, the government dismissed the acting DPP and replaced him with a former soldier and FICAC prosecutor. On the same day, the government terminated, with 24 hours' notice, the contracts of three magistrates it had appointed after the April abrogation of the constitution. While the government gave no reasons for the terminations, there were media reports that one of the magistrates had criticized FICAC for prosecuting a critic of the regime for an alleged restaurant licensing violation (see section 4).
After the constitution was abrogated, the chief registrar also assumed responsibility for prosecuting lawyers for disciplinary breaches before a government-appointed judge. Civil society organizations criticized these additional duties as infringing on the independence of the judiciary.
The government continued to prohibit an International Bar Association (IBA) delegation from visiting the country to evaluate the independence of the judiciary. The government also reiterated its refusal to allow the UN special rapporteur on the independence of judges to visit the country for the same purpose. On March 3, the IBA's Human Rights Institute released a report criticizing the government for taking measures "to influence, control or intimidate the judiciary and the legal profession."
The abrogated constitution provides for the right to a fair trial. Defendants have the right to a public trial and to counsel, and the court system generally enforced these rights in practice during the year. The Legal Aid Commission, supplemented by voluntary services of private attorneys, provided free counsel to some indigent defendants in criminal cases. Most cases were heard in the magistrates' courts, but a case cannot be tried in a magistrate's court without the defendant's consent. Absent such consent, cases are tried in the High Court. Trials in the High Court provide for the presence of assessors, typically three, who are similar to jurors but only advise the presiding judge. Defendants enjoy a presumption of innocence and may question witnesses, present evidence on their own behalf, and access government-held evidence relevant to their cases. The right of appeal exists but often was hampered by delays in the process.
The law extends these rights to all citizens.
The military court system provides for the same basic rights as the civilian court system, although bail is granted less frequently in the military system.
Political Prisoners and Detainees
There were no reports of political prisoners or long-term political detainees. Police detained for short periods and questioned a number of journalists and others critical of the government.
Civil Judicial Procedures and Remedies
lthough the law provides for an independent and impartial judiciary in civil matters, the judiciary is prohibited by decree from considering lawsuits relating to the 2006 coup, subsequent actions by the interim government, the abrogation of the constitution, and subsequent military decrees. In the event of a human rights violation, under the constitution an individual also could complain to the Fiji Human Rights Commission (FHRC). Although the government decreed that the FHRC could continue to exist following the constitution's abrogation, it issued a decree on May 20 prohibiting the FHRC from investigating cases filed by individuals and organizations alleging government violations of the constitution and of human rights.
Editor's Note: The full report can be found at http://www.state.gov/g/drl/rls/hrrpt/2009/index.htm