May 9, 2008
Fiji's rulers heading for trouble
Chris Merritt, Legal affairs editor, The Australian Newspaper | May 09, 2008
ON Thursday last week, when newspaperman Evan Hannah was seized in Fiji, he had just enough time to call his lawyers.
That call triggered a plan that had been put in place soon after Fiji's military-appointed interim government expelled another Australian media executive, Russell Hunter, in February.
Hannah, who is managing director of The Fiji Times, believed he would be next, but he was not going without a fight and instructed the newspaper's law firm, Munro Leys, to begin work on a strategy designed to prevent him becoming another Hunter.
The intention was to use the law against those who wanted to punish The Fiji Times for criticising the post-coup regime. The Fiji Times is owned by News Limited, which publishes The Australian.
The strategy was all about speed. The authorities had come calling on Hunter at 8.30pm, bundling him out of the country with little more than what he was wearing.
If there was a late-night knock on Hannah's door, Munro Leys' lawyers knew there would be a race.
The authorities would be trying to move Hannah to Nadi airport, about three hours from Suva, and on an aircraft before the lawyers could scuttle their plan.
In the end, the team from Munro Leys won that race, having tracked down a judge who heard the case in his dining room.
The lawyers had all the supporting documents ready to go and won an order that should have stopped the deportation.
They tracked down another official to have that order given the court's official stamp and just before midnight, began serving that order on the government and its officials.
All this happened hours before Hannah arrived at the airport and instead of producing him in court, the authorities pressed ahead and put him on a Korean Airlines aircraft bound for Seoul.
Fiji's interim government is now arguing before the High Court, Fiji's equivalent of Australia's Federal Court, that it had not been served with the writ properly.
Ranged against that argument are the records held by Munro Leys, which lists who was served with the writ and when service took place.
Unless the interim government can persuade the High Court that those records are defective or irrelevant, its relationship with thejudiciary could be heading for trouble.
The affair is being used by the democracy lobby as further evidence that the rule of law is in serious trouble in Fiji.
Coup leader Frank Bainimarama strengthened that belief on Monday when he held a meeting with the nation's media and confirmed that he had overruled the order of the High Court and imposed a permanent ban on Hannah from re-entering the country.
The affair has also raised questions about Fiji's adherence to international law.
An Australian consular official made an early-morning dash from Suva to Nadi airport only to be refused access to Hannah.
That official then took a copy of the court order from Hannah's lawyers and tried to discuss it with the crew of the Korean aircraft that eventually took Hannah out of the country.
Although the Australian diplomat was not manhandled, Fijian officials turned him away from the aircraft.
The fact that Hannah is no longer in Fiji does not mean this affair is over because significant numbers of Fijians respected the court's order and refused to co-operate with the deportation.
Air Pacific defied the authorities and abided by the court order, as did some of the airport staff at Nadi.
One of the officials who removed Hannah from his home was reduced to tears.
Hannah's suspicions about what lay ahead had been aroused a little more than two weeks after Hunter had been expelled.
Attorney-General Aiyaz Sayed-Khaiyum telephoned Hannah at 10.30am on March 14, asking him to attend a meeting at 2.30pm in his office.
Hannah took along a Munro Leys litigation partner, Jon Apted, who listened as Sayed-Khaiyum told them that Bainimarama was unhappy with The Fiji Times.
Hannah explained that as publisher he took responsibility for everything published in the newspaper, but he would not, in any circumstances, give directions to the editorial team.
He told Sayed-Khaiyum there was a separation of powers at the paper to allow the editorial staff to operate without being subjected to improper pressure.
If the interim government had a grievance it could be dealt with in the normal way: through a correction, a letter to the editor, an opinion article, a complaint to the Fiji Media Council or resort to the courts.
The details of that meeting are outlined in an affidavit Hannah completed the next day and left with his lawyers.
Apted knew that if the authorities moved against his client, an urgent application to the courts would be essential.
To cover all contingencies and save time, documents were prepared well in advance to support a variety of possible responses.
"We didn't know exactly what would happen: what time, what basis they would claim for removing him and how much time we would have," Apted says.
"So we had ready a writ of habeus corpus, a judicial review application, an application for a stay, a civil action and an application for an exparte injunction. We also took affidavits from Evan and all the exhibits that we needed on his personal circumstances: his job, his family circumstances, his passport and the history of his dealings with the Government.
"The affidavit also covered his role as publisher and the separation of duties between him as publisher and the editor.
"All these were ready when he called to say there were immigration officials and a policeman at his house."
That call was placed to Apted's mobile phone between 6.30pm and 7pm.
Apted was in a meeting and called back five minutes later.
He then told the firm's managing partner, Richard Naidu, what had happened and the two lawyers arrived at Hannah's home at about 7.25pm, when they were confronted with the scene they had been dreading: a government vehicle parked outside.
Hannah's security guards opened the gates and the lawyers found three immigration officials and a policeman in the lounge room.
Those officials were immigration officer Josefa Ravatudei, immigration inspector Yogendra Kumar, passport control officer Paula Yavita and special police constable Asesla Niu.
Hannah, mindful of the circumstances of Hunter's deportation, had dressed for travel and had packed a bag.
Naidu read the removal order and told the immigration officials that Hannah had seven days before the expulsion order took effect.
"This meant they could not take Evan there and then," Apted says.
But the officials persisted and said arguments over the meaning of the order could take place in court.
Naidu, who does most of the pre-publication work for The Fiji Times, is very close to the paper, but he is not part of the firm's litigation department and had not been involved directly in preparing for the coming fight. But his presence that night was essential.
He was there so he could swear an affidavit that covered what he saw and it would be used in the proceedings that were sure to follow.
When it became clear Hannah would be taken away that night, Apted went outside and began making calls to arrange an urgent hearing before a High Court judge.
He called court registrar Emosi Koroi at home and was told that the family was having evening devotions and could he call back.
After the officials had left with Hannah wedged into the back seat of their government car, Apted and Naidu returned to their office and determined the best way forward was a writ for habeus corpus.
Because there is no duty-judge scheme in Fiji, Koroi needed to call judges at home until he found one who was prepared to hear the habeus application.
Apted and Koroi then found themselves at the dining table of High Court judge Filimoni Jitoko, who conducted a hearing just as if he were in court and agreed to issue the writ.
The firm informed the Australian consulate, which in turn passed the news to Canberra.
A consular official then caught an early flight to Nadi to offer Hannah whatever assistance might be appropriate.
At the same time, copies of the court's order were being widely distributed and Air Pacific refused to carry Hannah to Australia.
Air Terminal Services at Nadi, after being told of the court order, refused to process Hannah's departure.
Even with Hannah out of the country, the repercussions from this affair are still being felt in Fiji.
At 3pm on Friday, when the respondents to the court's order had been due to produce Hannah to Jitoko, none turned up, the only representatives from the interim government being solicitor-general Christopher Pryde and an assistant.
Pryde told the court he was representing the respondents but had been unable to contact any of them to establish whether they had been served with the writ.
The court process in Fiji is expected to drag on for weeks, but the affair might have already made a decisive impact on relations with Australia.
Australian consul-general in Fiji James Batley has received a death threat and Fiji is accusing Australian aid agency Ausaid of using its activities to encourage critics of the post-coup regime.
After Hunter's expulsion, Australia expressed its extreme disappointment to the Fiji authorities that nobody bothered to inform Australian authorities that an Australian citizen was being deported.
This time, the Fiji side has done it again.
Consular officials in Suva became aware of the affair only after hearing about it on the local media.
The consulate then contacted The Fiji Times, obtained Hannah's mobile phone number and called him while he was on the road to Nadi. He assured the consulate that he was not being mistreated.
While Hannah was still on the road, the consulate began calling senior figures in Fiji's interim government, expressing concern, seeking information and requesting immediate consular access. Nothing happened.
Australia's Department of Foreign Affairs then instructed the consulate to have an official at Nadi airport to offer whatever assistance possible.
At the airport, the affair took a bizarre turn.
A consular official learned Hannah was being held in a room just off the main departure hall.
The official knocked on the door, asked to see Hannah, and was told he was not there.
A short time later, the official tried again and had a brief conversation with Hannah through a half-opened door before being told by Fiji authorities to leave.
When it was learned that Air Pacific would not co-operate with the expulsion, the consular official tried to ensure Korean Airlines was aware of the court's order.
But the consular official, armed with a copy of the writ, was turned back at the departure gate. Hannah was already on board.
This article highlights the deliberate attempts by Fiji's Military Regime to thumb their noses at the RULE OF LAW in Fiji.
Where are your oft repeated buzz words "Accountability, Good Governance and Transparency & respect for the Rule of Law" now, Baini & Co. ?
What you have proven to the people of Fiji without a shadow of a doubt is that the Regime is nothing but a terrorist organisation. End of Story.