Fiji’s High Court Judgment: Determining the Independence of the Fijian Judiciary - Lucy Anna Mathieson

7/31/2019 Fijis High Court Judgment: Determining the Independence of the Fijian Judiciary - Lucy Anna Mathieson

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Fijis High Court Judgment: Determining the Independence of the Fijian Judiciary

Written by Lucy Anna MathiesonHuman Rights Advocacy Programme Coordinator

Judicial independence is not an end in itself, but a means to an end. It is the kernel of the rule of law, giving the citizenry confidence that the laws will befairly and equally appliedJudicial independence also allows judges to make decisions that may be contrary to the interests of the other branches of

government. Presidents, ministers and legislators at times rush to find convenient solutions to the exigencies of the day. An independent judiciary is uniquepositioned to reflect on the impact of those solutions on rights and liberty, and must act to ensure that those values are not subverted. Independence is th

wellspring of the courage needed to serve this rule of law function.Judge OConnor

In Fiji, the President, as head of State, is required to preserve the Constitution. However, when examining the rat

decidendi of the recent High Court Judgment,

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that endowed the Office of the President with far-reachiprerogative powers, questions can be raised as to the potential for such broad, constitutionally unlimitePresidential prerogative to lead to the abrogation of the Constitution itself in addition to providing encouragemeto would-be usurpers to utilise those ultimate reserve powers in the future. Whilst the Judgment itself does raisserious questions specific to the constitutionality of the actions during the December 2006 coup, its reasoninraises more serious concerns about the applicability of legal theory as a legitimizing force for coup regimes. TCommodore had, afterall, abrogated the Constitution in his actions; the President had then sanctioned thosactions, and that of the RFMF, and then protected them from prosecution and by selecting the Commodore for thposition of Interim Prime Minister, essentially legitimized the events of December 2006.

The question that rises inevitably at this point is that whilst it can be accepted that the President does have thprerogative to act in times of emergency, at what point can prerogative be questioned particularly when th

decisions are not merely questionable, but clearly unconstitutional?

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1Qarase and Others v Bainimarama and Others(9 October 2008).

2On 9 October 2008, the Fiji High Court upheld decisions made by the President after the December 2006 coup, including the granting of immunity to t

interim Prime Minister and his soldiers involved in the overthrow of the Qarase government. The controversial ruling dismissed deposed Prime MinisLaisenia Qarase's challenge of the President's powers and cemented the President's authority and prerogative in emergency. The ruling by judges AnthoGates, John Byrne and Devedra Pathik was delivered by Acting CJ Gates to a packed courtroom. The Judgment comes as a controversial one and to extent follows a growing body of jurisprudence within the Commonwealth, whereby Judicial decisions often serve to legitimate governments taken by forotherwise referred to as coup jurisprudence. The recent High Court Judgment appears to show that the court held that the President has very wprerogative powers; powers that not only authorised the interim Government appointments in January 2007, but also allows the President to continuegovern the country and make laws for as long as he thinks the circumstances require leaving the question of the timing of elections solely to the Presidendiscretion. Justice Gates stated that the decision by the President to ratify the dismissal of Mr Qarase and appoint Dr Jona Senilagakali as caretaker PM


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The case itself was about the lawfulness or otherwise of certain acts carried out by the President following militaintervention in the government of the State. The defendants maintain that the President retained prerogativpowers which enabled him to act in an emergency for the public good. Those powers then enabled him to ratify thacts of the military in the takeover, and ultimately absolve participants of unlawfulness. But did such powers allohim to act without specific authority of the Constitution? Were his powers as the plaintiffs argue circumscribe

within the confines of the Constitution with regard to the dismissal of the Prime Minister and his Cabinet and thdissolution of Parliament? Were those powers further confined by the common law by the requisite conditions sout in the case of Prasad: Republicof Fiji & Ano.v Prasad [2001] 2 LRC 743. As advised by the Fijian lawyeGraham Leung, the recent Fiji High Courts decision reliance upon prerogative powers that are equal or analogoto those of the British monarch is wrong and bad law.3 There are, afterall, very good reasons, for placilimitations upon the scope of prerogative powers.

The Fijian Constitution does provide for Presidential discretion under section 96(2), whereby it states that, thConstitution prescribes the circumstances in which the President may act in his or her own judgment. Arguabthere are situations that the Constitution may not necessarily have prescribed for which there are prerogativpowers. However, in such instances, it would seem, in keeping with a more reasonable application of the Doctriof Necessity, that in such instances, the Presidents prerogative should be guided by the Constitutio

Jurisprudence from other jurisdictions has upheld that the basic structure of a Constitution cannot be alteredbecause in upholding the unconstitutional the very basis of democracy, good governance, rule of law, anulitimately, human rights fall into disarray.4 Moreover, what inevitably begins is a pattern of judicially-sanctioneconstitutionally undefined powers that cannot be questioned and are bound to be reflective of a wider pattern oppression that limits freedom of expression and the ability to express dissent or political opposition. A climate thdoes not allow room for questioning illegitimate regimes is, in effect, Kelsenian theory5 in practice,6 confusilegality and legitimacy or better said, legitimizing regimes by legalizing their actions. And, whilst the recedecision did not rely wholly upon Doctrine of Necessity, it is representative of the jurisprudence stemming frocoup regimes across the Commonwealth. In this regard, judicial independence is far too an important pubinterest issue not to be publicly discussed when the occasion demands, lest silence induced by tact or timidity misconstrued as acceptance of the unacceptable. A judge who strays beyond his judicial functions cannot escappublic scrutiny and criticisms of his extra-judicial activities.7 The latest Fiji High Court Judgment is symptomat

advise the dissolution of Parliament were valid and lawful acts. Advising that was in exercise of the prerogative powers of the head of State in a crisis, JustGates ruled the decision of Ratu Josefa to rule directly pending the holding of fresh, fair and accurate elections was upheld as valid and lawful. He aladvised that the President's decision to make and promulgate legislation in the interest of peace, order and good government in the intervening period prioa new Parliament is upheld as valid and lawful. Justice Gates advised that the granting of immunity by Promulgation was within the powers of the Presidenthe emergency. The question posed to the Court was whether those powers enabled Ratu Josefa to ratify the acts of the military in the takeover and allohim to discharge duty without the specific authority of the Constitution. Justice Gates advised that the pivotal question was how far the courts could subjthe President's conduct to judicial review.3

Sadhana Sen ANU panel criticises court's decision (24 October 2008) at http://www.fijitimes.com/story.aspx?id=104162 [last accessed on 13 Novem2008].4

The Indian Supreme Court Decision in Keshavananda Bharati Vs. State of Kerala(AIR 1973 SC 1461) and two United States of America Supreme Codecisions, one expressly and one implicitly, address this issue most directly: Youngstown Co. v. Sawyerand Hamdan v. Rumsfeld, 126 S. Ct. 2749, 27(2006) (describing the post-September 11 AUMF as having "activated the President's war powers") for an attack on Kelsens theory.5

Although different coups unfolded in diverse contexts courts generally validate all incumbent usurper regimes. Kelsen's theory of revolutionary legality hfurnished the primary doctrinal vehicle to reach this result. While some courts have adopted Kelsen's proposition that efficacy of a coup bestows validity in unadulterated form, others have modified this with or substituted it by doctrines of state necessity, implied mandate, and public policy. Following Kelsen, thfail to distinguish between legitimacy and validity of a legal order, using the terms interchangeably.6

Refer to the Ghanaian Court of Appeal in Sallah v Attorney-General (Unreported opinion delivered on April 20, 1970). And, In a comment on the misuseKelsens work, Dr Peter Oliver has stated: The concern of a theorist such as Kelsen or Hart is not to prescribe a particular judicial response in the face revolutions and coups dtat. It is rather to understand the normativity of law: how it is that a legal text, which is after all a mere FACT a piece of paper,to speak acquires a binding quality. Kelsen was naturally interested in analysing all of the main models of constitutional development: orderly constitutiodrafting in constituent assembly followed by popular ratification as well as revolutionary establishment of new regimes. His interest in both should not misconstrued as approval of both. See, P. Oliver, Comments on the Misuse of Kelsens Theory (Conference proceedings: Legal Deterrents toCoups, January 15 16, 2001).7

A Diminished Judiciary Sir Vijay R Singh [in Journal of South Pacific Law] at iswww.paclii.http://www.vanuatu.usp.ac.fj/journal_splaw/Special_Interest/Fiji_2000/Fiji_Singh1.html (This article first appeared in the Fiji Times of October 17, 2000) [accessed on 17 October 2008].


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and in recent years the Fiji experience, alongside several other Commonwealth countries, have not been the berole models.8

Professor John Hatchard & Dr. T.I. Ogowewo (2003) in their analysis of the jurisprudence that has developed frocoup regimes within the Commonwealth have stated that a proactive approach to the problem of unconstitutionusurpations of government also calls for the enthronement of a culture of constitutionalism. The absence of th

culture prevents citizens from perceiving with clarity the vice of a usurpation (such as the removal of constitutionsafeguards) if the usurpation occurs at a time when there has been a failure of democracy and government. 9 Thhave argued that the absence of a culture of constitutionalism is created by a number of factors: first, one effect military rule is to thwart the development of a constitutional culture. When a democracy is then reintroduced, tinstitutions need to undergo a sharp learning curve.10 As the learning process is slow the institutions may becomenfeebled leading to the twin failures. Another military coup then occurs to correct these failures with thironical consequence that a full-blown military dictatorship purports to correct an inchoate or at worst an illiberdemocracy. The result is a start-stop process that continually thwarts the development of a constitutional culturA compounding factor in this process is the jurisprudence on coups that encourages this cycle, where success rewarded with validation.11 And, in countries such as Fiji, Pakistan and Zimbabwe, where the rule of law is undthreat and being undermined in one form or another, there is a greater burden on the judiciary to reinforcconstitutionalism and respect for democratic principles and constitutional government.12

Fijis system of government is based on a written constitution and subscribes to the general principle of separation of powers between the three branches of government, namely, the legislature, the executive and th

judiciary. Under Article 118 of the Constitution the judges of the State are independent of the legislative aexecutive branches of Government. Fiji is a signatory to the 1997 Beijing Statement of Principles of thIndependence of the Judiciary13 in the LAWASIA region. These principles stress the importance of tindependence of the judiciary to the rule of law.14

Under the provisions of Fiji's constitution, judges of the Supreme Court, justices of the Court of Appeal and HiCourt judges are appointed by the president on the recommendation of the Judicial Service Commission. Thappointment should be made after consultation by the commission with the minister of justice and the relevasector standing committee of the House of Representatives. As a consequence of the actions of the coup leade

in Fiji, none of these was in a position to carry out his, her, or its constitutional functions. All subseque

8Interference with Judicial Independence in the Pacific Presented by: Hon. Sir Thomas Eichelbaum (Retired Chief Justice of New Zealand) at

http://www.paclii.org/PJDP/resources/PJC/Interference_%20with_Judicial_Independence_in_the_Pacific.pdf [last accessed on 17 October 2008].9

Professor John Hatchard & Dr. T.I. Ogowewo (2003) Tacking the Unconstitutional Overthrow of Democracies: Emerging Trends in the CommonweaCommonwealth Secretariat Part 1, pp.1010

G.N. NaAbba, the Speaker of the House of Representatives, in his paper Military Rule and the Parliament in Nigeria: 19662000 (paper presented at tconference on Legal Deterrents to Coups, January 1516, 2001), observed thus: The continued overthrow of constitutional governments has over the yemade it impossible for Parliament to develop and mature.11

Professor John Hatchard & Dr. T.I. Ogowewo (2003) Tacking the Unconstitutional Overthrow of Democracies: Emerging Trends in the CommonweaCommonwealth Secretariat Part 1, pp.10-11.12

Military coups against constitutions are the obvious form of usurpations, although usurpations could take other forms. One experience a significant numbof Commonwealth member states have in common is that of the unconstitutional overthrow of government. Over the past thirty years, one third of Commonwealth member states have experienced at least one usurpation or attempted usurpation. Eleven Commonwealth states have seen their civigovernments overthrown by the military. These are: Bangladesh, Fiji Islands, The Gambia, Ghana, Grenada, Lesotho, Nigeria, Pakistan, Seychelles, SieLeone, and Uganda. Nigeria epitomises the military in government. Between independence, in 1960, and 1999, the country experienced eight military rulefour constitutions (one of which was never used); two civilian regimes that lasted a total of ten years, and one civil war attributable to military ruCommonwealth states that have experienced attempted usurpations include Cameroon, Kenya, Maldives, Vanuatu and Zambia. Militias have also stagattempted usurpations in the Solomon Islands and in Trinidad and Tobago. [Professor John Hatchard & Dr. T.I. Ogowewo (2003) Tacking tUnconstitutional Overthrow of Democracies: Emerging Trends in the Commonwealth Commonwealth Secretariat Part 1, pp.7].13

Any discussion about Judicial Independence should start with some definition of the subject matter. And among numerous examples, the 1995 BeijDeclaration, subscribed by many of the Chief Justices from this region, must rank as comprehensive as any, which can be found at:http://search.live.com/previewx.aspx?q=Beijing+statement+of+the+principles+of+the+Independence+of+the+Judiciary&FORM=CBPW&first=1&noredir=1[last accessed on 20 October 2008].14

Fiji - rule of law and civil rights issues MEDIA RELEASE New Zealand Law Society (21 May 2008) athttp://www.lawsociety.org.nz/home/for_the_public/media_centre/media_releases/media_releases2/2008/fiji__rule_of_law_and_civil_rights_issues [accessed on 16 October 2008].


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recommendations to the president have accordingly been made without the concurrence of the only member of tJudicial Service Commission constitutionally empowered to make them.15

In Fiji before taking office, judges are required to take a constitutional oath [See Constitution of Fiji, D Oath Affirmation for due expectation of Judicial office, page 112]. In Prasad v Republic of Fiji[2000] FJHC 12116 JustiGates commented on the oaths that Judges take said:

The oath is two pronged. First the judge swears to uphold the Constitution, and second he swears that he will do right (iwill do justice) to everyone in accordance with the laws and usages of the Republic (that is he will not go against the lawmake a perverse decision or one not in accordance with the law). Finally he will so act, with courage without malice or sptowards anyone. A judges first duty is to uphold the Constitution. Because a judge may be called upon to pronounce upothe legality of executive action when an instance of supra-constitutionality occurs, it is a wiser counsel for a judge, indeefor the Bench of Judges, to make no public statement on the matter..A judges strength and value lies in continuito hold office and to carry out his or her duties with integrity, even-handedness, boldness and courage. If the judiciarydeserving of any respect, it must at least aim for these precepts.

Arguably, only a judge appointed conformably with the provisions of the constitution can constitute "a court law".17

Judicial impartiality is essential to the proper discharge of the judicial office and judicial responsibilities. competent, independent and impartial judiciary is necessary for the protection of human rights. These attributeare likewise essential if the courts are to fulfill their role in the proper administration of justice and in upholdiconstitutionalism and the rule of law. Furthermore, a judge is required to exercise the judicial functioindependently on the basis of the judges assessment of the facts and in accordance with a conscientiouunderstanding of the law, free of any extraneous or impermissible influences, inducements, pressures, threats interference, direct or indirect, from any quarter or for any reason. The Bangalore principle also states thpropriety and the appearance of propriety are essential to the performance of all the activities of a judge. Timportance of this principle lay at the basis of decision of the Fiji Court of Appeal, where, in the Takiveikatacasetheir Lordships opinion indicate that the test of bias is whether in the mind of a fair independent observer seated the back of the court room, the accused would receive a fair trial because of the appearance of prejudgment.19

It was, afterall, Gates J. who made the following remarks in Jokapeci Koroi & Ors v Commissioner of InlanRevenue & the Attorney-GeneralLautoka High Court, Civil Action No 0179/2001L:

15The Fiji Judiciary at the Crossroads: Judicial Independence and the Rule of Law Remarks by GRAHAM LEUNG Commonwealth Lawyers Conferen

Nairobi, Kenya (12 September 2007) Hdata:\GEL speeches\20070824JudicialIndpendenceCLA.gel, ahttp://209.85.175.104/search?q=cache:hNqqLsA3z58J:www.commonwealthlaw2007.org/speakers_material/assets/C9GrahamLeung.pdf+independence+oFiji%27s+judiciary&hl=en&ct=clnk&cd=4&gl=in, and http://www.commonwealthlaw2007.org/speakers_material/assets/C9GrahamLeung.pdf [last accessed18 October 2008].16

Gates J based his decision upon the doctrine of necessity. He made several orders, including that [t]he revocation of the 1997 Constitution was not mawithin the doctrine of necessity and such revocation was unconstitutional and of no effect. The 1997 Constitution is the supreme and extant law of Fiji toda[Prasad v Republic of Fiji[2001] New Zealand Administrative Reports 48]. The Interim Civilian Government decided to appeal to the Court of Appeal of Fiji.On 17 January 2001, a single judge of the Court of Appeal granted the parties leave to produce new evidence. The appeal was heard by a five judge benover four days from 19 to 22 February 2001. The Court of Appeal comprised Casey J (Presiding), Barker, Kapi, Ward and Handley JJA. Even though this wa domestic Fijian court, each judge was based outside of Fiji and would come to Fiji to sit as a member of the Court as the need arose. The Court handdown its decision on 1 March 2001. It issued a unanimous judgment in which it dismissed the appeal, but made new declarations in lieu of those madeGates J in order to reflect the new evidence before it. Most importantly, like Gates J, the Court ordered that [t]he 1997 Constitution remains the supreme of the Republic of the Fiji Islands and has not been abrogated.[Republic of Fiji v Prasad(Unreported, Fiji Court of Appeal, Casey J (Presiding), Barker, KaWard and Handley JJA, 1 March 2001), 40]. The Court of Appeal reached this result by different reasoning to Gates J. It rejected use of the doctrine necessity, while at the same time achieving an equivalent outcome under the doctrine of effectiveness.17

The English Court of Appeal, ruled in a 2003 case that the de factodoctrine by which the orders of a judicial appointee, whose appointment has beinfected by irregularity, may be upheld, cannot validate the authority or acts of a person who knows that he does not have that authority. [Fiji's new judgshould be challenged http://www.theaustralian.news.com.au/story/0,25197,23594298-16953,00.html COMMENT: John Cameron (April 25, 2008)].18

State v Takiveikata [2004] FJHC 111; HAC005D.2004S (18 June 2004) and State v Takiveikata [2008] FJHC 31; HAM107.2007 (4 March 2008).19

State v Takiveikata [2004] FJHC 111; HAC005D.2004S (18 June 2004) and State v Takiveikata [2008] FJHC 31; HAM107.2007 (4 March 2008).


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Unruly persons are unlikely to seek validation for their usurpations from judges. Nor should the courts give their sanctiowhen application is eventually made under the doctrine of effectiveness, for there is no such force behind it. In this regardrespectfully differ from Kelsen. Judges should expect and anticipate that the usurpers will see them removed. So be Judges do not represent the law. The doctrine of effectiveness has no moral underpinning, and judges do no honourabbusiness therefore in according lawfulness to de facto administrations.[Emphasis added]

The recent High Court Judgments reliance on the Doctrine of Necessity, dismissal of the weight of thConstitutional abrogation in the acts that the President legitimated during the December 2006 coup, and reliancupon wide-ranging unrestricted prerogative powers could quite reasonably be deemed an abuse of thConstitutional Avoidance Canon. The President of Fiji, as head of State, is required to preserve the ConstitutioFor who but the Judiciary can comment on the abuse of power. Because, when they fail to do so they open ground for an environment that legitimates coups and suppresses the rule of law. However, in the end, perhapthe real test is whether during a constitutional crisis, judges can perform to the very standards that they havpreviously publicly espoused.

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Fiji’s High Court Judgment: Determining the Independence of the Fijian Judiciary - Lucy Anna Mathieson