A Bar Association For A Bar Association For Fiji?Fiji?

The rule of law is not necessarily to be equated The rule of law is not necessarily to be equated

with law and order. Indeed, the rule of law has as with law and order. Indeed, the rule of law has as

one of its opposites the imposition of order by the one of its opposites the imposition of order by the

use of arbitrary might. Another opposite is the use of arbitrary might. Another opposite is the

absence of order. The rule of law finds its place absence of order. The rule of law finds its place

between these two extremes. It may be defined between these two extremes. It may be defined asas

the governance of society by laws, to which all the governance of society by laws, to which all

citizens, bodies corporate and governments are citizens, bodies corporate and governments are

subject, made with the general concurrence of subject, made with the general concurrence of

society and enforced impartially. society and enforced impartially.

Such a society necessarily has as its Such a society necessarily has as its apex:apex:

a democratically elected parliament, a democratically elected parliament, an independent judiciary. an independent judiciary. a police force free of party political a police force free of party political

control, control, laws which are published by means laws which are published by means

which makes them accessible to all, andwhich makes them accessible to all, and an independent legal professionan independent legal profession i.e. a i.e. a

legal profession which owes its duty legal profession which owes its duty only to the courts and to its clients.only to the courts and to its clients.

It is the legal profession which more It is the legal profession which more than than

any other body of persons ensures any other body of persons ensures that the that the

law applies to all, from Prime law applies to all, from Prime Minister to Minister to

pauper. It is a role of the legal pauper. It is a role of the legal profession to profession to

ensure that the law is enforced ensure that the law is enforced impartially.impartially.

It is also the role of the legal It is also the role of the legal profession to profession to

safeguard and encourage safeguard and encourage the growth of an the growth of an

independent judiciary. independent judiciary.

The Judiciary is made up from amongst The Judiciary is made up from amongst the ranks of the legal profession. Our the ranks of the legal profession. Our Judges and Magistrates are normal Judges and Magistrates are normal people subject to human failings and people subject to human failings and weaknesses. It is the responsibility of the weaknesses. It is the responsibility of the legal profession to have established a legal profession to have established a rapport and a line of communication with rapport and a line of communication with the Judiciary so that when judgments are the Judiciary so that when judgments are not delivered within reasonable time, or not delivered within reasonable time, or when Judges are acting injudiciously, or when Judges are acting injudiciously, or courts are not starting on time, the courts are not starting on time, the profession is able to communicate its profession is able to communicate its concerns to the Judiciary, in the concerns to the Judiciary, in the knowledge and with the assurance that knowledge and with the assurance that its concerns will be considered.its concerns will be considered.

You may say that yes – all that is You may say that yes – all that is fair fair

enough, but we already have the enough, but we already have the Fiji Law Fiji Law

Society to address those concerns Society to address those concerns for us, sofor us, so

Is there a real need for a separate Is there a real need for a separate

Bar Association?Bar Association?

A strong Bar is at the heart of the A strong Bar is at the heart of the

independent legal profession of any independent legal profession of any country. country.

It is my belief that a Bar Association is a It is my belief that a Bar Association is a

workable and necessary means by workable and necessary means by which which

the bar in Fiji can be strengthened, and the bar in Fiji can be strengthened, and the the

legal profession as a whole enrichedlegal profession as a whole enriched. .

While the Fiji Law Society does a While the Fiji Law Society does a commendable job in regulating the commendable job in regulating the practice of law in this country, it is practice of law in this country, it is not as a body able to prominently not as a body able to prominently address the day to day address the day to day

Issues surrounding practice in the Issues surrounding practice in the Courts in Fiji.Courts in Fiji.

There are a number of issues that are relevant, and in many There are a number of issues that are relevant, and in many ways ways

peculiar, to peculiar, to litigation lawyerslitigation lawyers in Fiji. These are: in Fiji. These are:

the development of litigation techniques and skillsthe development of litigation techniques and skills fostering a better relationship with Bench and State fostering a better relationship with Bench and State

Prosecution OfficeProsecution Office getting better facilities in around the Registries and Courtsgetting better facilities in around the Registries and Courts setting up a mentor group for younger litigation lawyers setting up a mentor group for younger litigation lawyers counselling for litigators facing ethical issuescounselling for litigators facing ethical issues counselling for litigation lawyers facing disciplinary counselling for litigation lawyers facing disciplinary

allegations allegations recognition of excellence as litigation lawyers recognition of excellence as litigation lawyers convening social gatherings targeted at litigation practice convening social gatherings targeted at litigation practice development of better management and administration of development of better management and administration of

litigation litigation development of pleadings modulesdevelopment of pleadings modules development of alternate dispute resolution modules and development of alternate dispute resolution modules and

techniques i.e mediation /arbitration techniques i.e mediation /arbitration

What could a Bar Association offer to these What could a Bar Association offer to these Litigation Lawyers?Litigation Lawyers?

A Bar Association could work to:A Bar Association could work to: encourage and enhance litigation techniques encourage and enhance litigation techniques Provide relevant training and mentoringProvide relevant training and mentoring represent the special needs of litigation lawyers – secure represent the special needs of litigation lawyers – secure

access to court apparel, research resources etcaccess to court apparel, research resources etc encourage a closer working relationship with the Registry encourage a closer working relationship with the Registry

and the Bench on matters pertaining to litigation, and the Bench on matters pertaining to litigation, including delivery of judgments and court lists.including delivery of judgments and court lists.

encourage dialogue with the Registry and the Bench on encourage dialogue with the Registry and the Bench on Regulations pertaining to Litigation i.e. the High Court Regulations pertaining to Litigation i.e. the High Court Rules, Penal Code etcRules, Penal Code etc

encourage new forms of legal practice: Solicitors who encourage new forms of legal practice: Solicitors who instruct a Barrister and encourage specialisation - some instruct a Barrister and encourage specialisation - some people are good at being Barristerspeople are good at being Barristers

There has been a worrying decline There has been a worrying decline in standards of practice in our in standards of practice in our Courts, and an Organisation Courts, and an Organisation committed wholly to the welfare of committed wholly to the welfare of those who practice in the Courts will those who practice in the Courts will be better positioned and more able be better positioned and more able to to

arrest the decline in standards, and arrest the decline in standards, and provide relevant training and provide relevant training and mentoring programmes.mentoring programmes.

It is of course true that ours is a fused It is of course true that ours is a fused profession, and we are a small group. profession, and we are a small group.

All lawyers are governed by one set of All lawyers are governed by one set of Regulations and most firms are small one or Regulations and most firms are small one or two lawyer practices, which do their own two lawyer practices, which do their own litigation.litigation.

This does not mean however, that there is This does not mean however, that there is no no scope for further specialisation within the scope for further specialisation within the profession. profession.

Change can be daunting at first, but there is no Change can be daunting at first, but there is no reason why a system cannot be set up whereby reason why a system cannot be set up whereby Solicitors who are not comfortable with advocacy Solicitors who are not comfortable with advocacy are able to instruct specialist advocates to conduct are able to instruct specialist advocates to conduct litigation on their behalf.litigation on their behalf.

We already instruct Counsel from overseas to attend We already instruct Counsel from overseas to attend to cases on our behalf – so why should we not seek to cases on our behalf – so why should we not seek to develop a degree of specialisation right here, so to develop a degree of specialisation right here, so that local Counsel are available to attend to that local Counsel are available to attend to matters on our behalf.matters on our behalf.

A Bar Association will be able to provide the A Bar Association will be able to provide the necessary impetus to bringing about this sea necessary impetus to bringing about this sea change within the profession. change within the profession.

The idea of exploring the possibility The idea of exploring the possibility of having a Bar Association in Fiji of having a Bar Association in Fiji arose after a trip taken by senior arose after a trip taken by senior executives of the FLS to Australia in executives of the FLS to Australia in 2007. 2007.

In most states of Australia the legal In most states of Australia the legal profession is not fused, and Bar profession is not fused, and Bar Associations are compulsory and Associations are compulsory and regulate the practice of members.regulate the practice of members.

There are other countries, however, There are other countries, however, where Bar Associations are not where Bar Associations are not compulsory, and members join on a compulsory, and members join on a voluntary basis.voluntary basis.

It is this type of voluntary It is this type of voluntary organisation, of persons who appear organisation, of persons who appear regularly in the courts in Fiji, that is regularly in the courts in Fiji, that is envisaged for Fiji. envisaged for Fiji.

The Association would not regulate the entry of The Association would not regulate the entry of members to members to

the Bar, nor have any disciplinary functions, but would the Bar, nor have any disciplinary functions, but would have have

the following simple objectives:the following simple objectives:

Foster professional relationships amongst persons Foster professional relationships amongst persons who practice at the bar in Fiji- assist each other with who practice at the bar in Fiji- assist each other with professional issues.professional issues.

Mentoring of younger members Mentoring of younger members Act as liaison with the bench to address issues of Act as liaison with the bench to address issues of

concern to the bar and bench concern to the bar and bench Submissions on current issues in the administration of Submissions on current issues in the administration of

justice affecting barristers/advocates including justice affecting barristers/advocates including practice management issues practice management issues

Submissions on court administration issues Submissions on court administration issues

Formulate policies relating to and monitor Formulate policies relating to and monitor conduct issues within the profession conduct issues within the profession

Facilitate the provision of guidance to Facilitate the provision of guidance to members on ethics issues. members on ethics issues.

Conduct/facilitate training for barristers on Conduct/facilitate training for barristers on court procedures court procedures

Facilitate the provision of court apparel for Facilitate the provision of court apparel for members – wigs, gowns, jabots, suits. Set up members – wigs, gowns, jabots, suits. Set up facility where apparel can be rented by facility where apparel can be rented by younger members. younger members.

Set up/facilitate legal resources for members Set up/facilitate legal resources for members Duty Barrister scheme – work with Legal AidDuty Barrister scheme – work with Legal Aid Carry out charitable works Carry out charitable works

The Structure of the Association would be The Structure of the Association would be similar to other Associate bodies of the FLS.similar to other Associate bodies of the FLS.

The Association would be created under The Association would be created under section 13section 13 of the Legal Practitioners Act of the Legal Practitioners Act under the umbrella of the Fiji Law Society under the umbrella of the Fiji Law Society

to maintain and improve the standards of to maintain and improve the standards of conduct and learning of the legal profession in conduct and learning of the legal profession in Fiji Fiji

to promote the welfare and to preserve and to promote the welfare and to preserve and maintain the integrity and status of the legal maintain the integrity and status of the legal profession profession

The Association could also in due course look at The Association could also in due course look at setting up a system of Senior Counsel for Fiji.setting up a system of Senior Counsel for Fiji.

I understand that concern has been raised amongst I understand that concern has been raised amongst some members of the profession about the some members of the profession about the proprietyproprietyof lawyers appointing senior counsel from amongst of lawyers appointing senior counsel from amongst themselves. The establishment of a Bar Association, themselves. The establishment of a Bar Association, with the consequent projected strengthening of with the consequent projected strengthening of relations with the bench may well allow for a system relations with the bench may well allow for a system which will allay these concerns and reward skill and which will allay these concerns and reward skill and achievement within the profession.achievement within the profession.

Ladies and gentlemen, I sincerely believe that a Bar Ladies and gentlemen, I sincerely believe that a Bar Association will be a step forward for the legal profession in Association will be a step forward for the legal profession in this Country.this Country.

I do not think that we should let our paucity in numbers I do not think that we should let our paucity in numbers stop stop us from trying to achieve high standards of professionalism us from trying to achieve high standards of professionalism and achievement in legal knowledge and skill.and achievement in legal knowledge and skill.

I do not consider it appropriate that we use our politicalI do not consider it appropriate that we use our politicaldilemmas and constitutional troubles as excuses to stop dilemmas and constitutional troubles as excuses to stop progressing in our professional standards. progressing in our professional standards.

I believe the time is right to start this new chapter within I believe the time is right to start this new chapter within the the legal profession in Fiji, and I invite you all to join me in legal profession in Fiji, and I invite you all to join me in bringing this concept to fruition. bringing this concept to fruition.

Thank Thank YouYou