Politics and the rule of law
RECENTLY the Fiji Law Society was told to “get the hell out of politics”.
The message was issued by prominent Suva lawyer and former FLS president, Devanesh Sharma, during the 23rd AttorneyGeneral’s Conference in Natadola last week.
Mr Sharma had mentioned that FLS’ focus should be fulfilling its obligations to the legal fraternity by “holding ethics and refresher courses regularly”, perhaps among other things.
“Get the hell out of politics,” he said, “because by the end of the day we must look after the welfare of our profession.”
Responding to Mr Sharma’s statement, FLS president Wylie Clarke said there was a clear distinction between engaging in politics and observing the rule of law.
“In democratic countries, any government which holds the reign of power must expect criticism,” Mr Clarke said.
“That does not mean its critics are engaged in politics and it’s disappointing that a senior Fiji lawyer would seek to blur this simple distinction.”
The communication directed at FLS was like telling the Fiji Media Association to focus only on the training of journalists and steer clear of issues related to the breach of the right to a free press.
Professional bodies, like the FLS, are involved in furthering the interests of individuals engaged in a particular profession. This may include providing further training and upskilling opportunities and supporting oversight over the practice of the profession.
The body may also be involved with issues beyond its usual day-to-day work. Note that while we may belong to a professional body we are also citizens of a country.
You may be an officer of the court but after work or in the weekends you can grab a banner and be part of a peaceful march protesting against unfair termination or a campaign fighting for just wages. Sometimes your active participation may be misconstrued to suggest we are engaged in active politics.
It is universally recognised that among the key principles of any modern-day democracy is observing and supporting the rule of law.
However, upholding the rule of law cannot depend solely on goodwill.
The effective protection of society from threats induced by abuse of power, corruption and the breach of basic human rights and democratic virtues rest on the existence of an effective system of checks and balances.
We are part of this system as individuals and as members of a group. But we do not necessarily have to engage in politics.
The independence of the legal profession is also a fundamental and crucial pillar of this democratic “surveillance” system.
This year, the FLS has been vocal against some government’s decisions and actions that, in its opinion, contravened the rule of law.
If anything, the society’s frequent public statements demonstrate its devotion to transparent leadership and accountable governance. Furthermore, it shows that it upholds freedom of expression, media freedom and the rule of law.
In early February, the Fiji Law Society came out strongly against the government over the arbitrary arrest, detainment and deportation of University of the South Pacific Vice-Chancellor, Professor Pal Ahluwalia and his wife, Sandra Price.
“Prof Ahluwalia and his wife are in Fiji legally and must be treated with dignity and the due process of the law,” said FLS.
Professor Ahluwalia’s offence was breaching the Immigration Act.
One week later, the society called on Parliament to defer debate on Bills dealing with the establishment of an Anti-Corruption Division in the High Court and the Abolition of Assessors.
It said the deferment would “allow for proper public consultation” to take place.
The NGO Coalition on Human Rights sided with the FLS saying the proposed changes were significant and affected Fiji’s commitment to the “principles of democracy, good governance, justice and human rights”.
“The Bills tabled…need a careful review and should not be expedited under the guise of Standing Order 51. Both Bills affect the fundamental human rights of those that rely on our Criminal Justice System,” the NGOCHR said.
In August, FLS expressed concern over the midnight arrest and detention of former government surgeon, Dr Jone Hawea, for “spreading misinformation”.
Dr Hawea had expressed his concern about the government’s “no jab no job” policy targeted at boosting Fiji’s vaccination numbers.
FLS reminded authorities to “respect the rights and freedoms” of citizens under the Constitution and to “act in accordance with the law”.
That same month, the FLS urged AttorneyGeneral Aiyaz Sayed-Khaiyum to take a more considered and professional public stance on court decisions he disagreed with.
This was after Mr Sayed-Khaiyum criticised State lawyers for “not doing a good job” in the case of Opposition MP Niko Nawaikula.
The FLS said the A-G’s behaviour was “unedifying” and “inappropriate”.
Last month, the FLS again expressed concern over the dismissal of Solicitor-General, Sharvada Sharma, saying this was in clear breach of the requirements of the 2013 Constitution.
Mr Clarke said Mr Sharma’s termination, without due process, was a grave assault on the rule of law and threatened the independence of constitutional offices.
In all of FLS’ statements of concerns this year, it simply highlighted where the government may have erred in law, how government should have acted and reminded the government to respect and observe the rule of law.
There was nothing in the law society’s statements to suggest it was engaging in partisan politics or being influenced by a particular political agenda.
Acting in a partisan manner means to be committed to the political ideology and goals of a political party while being simply political, as a citizens’ duty, is all about getting involved in the governance or public affairs of the country. Politics and the rule of law are interrelated but are vividly distinct.
Furthermore, the Fiji Law Society did not act alone.
In fact, it joined other pluralistic voices - political parties, civil society groups, professional bodies and individuals - who overwhelmingly demanded that government should observe the rule of law, follow due process and respect people’s human rights and freedoms.
This regular scrutiny on government decisions and public outcry over government action does not mean the people of Fiji or FLS are doing so along party lines.
In fact, politics and the law are deeply intertwined, the law being an essential instrument with which the government tries to influence society and the means by which government is structured, regulated and controlled.
I believe the Fiji Law Society’s consistent and robust scrutiny of government shows that it is independent and free from political influence and partisan politics. It also shows it is an active player in maintaining and demanding political accountability in Fiji.
This independence and freedom to censure government is not for the benefit of politicians or lawyers.
Instead, its ultimate purpose is to safeguard the interest of the people of Fiji and provide them with a non-partisan legal profession as the citadel of an independent judiciary and the foundation of a free, just and democratic society.
While the FLS has a role to serve its members by way of training and capacity building, it has a more noble duty and that is to serve the rule of law and the wider public interest.
To carry this out effectively, it will inevitably apply checks and balances on the power of government and may be accused of delving in politics.
It is important to know that the independence of Fiji’s legal profession, not its engagement in politics or its association with politicians, enables all sons and daughters of Fiji who are lawyers to serve in the legitimate interest of society, without fear of abusive retaliation, and free from undue influence and injustice of any kind.
Besides, we live in a very convoluted period in our country’s history. Poor leadership and COVID-19 has complicated matters.
Against this backdrop, we cannot have individuals and groupings that are mere bystanders in a civic space, disinterested in politics and political affairs, afraid to speak out when the rule of law is challenged and desecrated.
This calls for vibrant democratic citizenship and leadership, where the government its people respect the rule of law. The bottom line is we cannot thrive where there is no adherence to the rule of law, freedom of expression is displaced, and citizens and institutions cannot hold their government accountable.
Until we meet on this same page same time next week, stay blessed, stay healthy and stay safe!