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Publications 2
Judges, magistrates and lawyers
have a critical role to play in supporting the rule of law, Lord Atkin has said:
"Justice is not a cloistered virtue: she must be allowed to suffer the
scrutiny and the respectful even though outspoken comments of ordinary men",
and I might add, in this age of political correctness, women!
The expression "rule of law"
is somewhat clichéd and almost meaningless, thanks to ideological abuse and
overuse. The 17th century philosopher john Locke said "Where ever
law ends, tyranny beings."
The preamble to the Universal
Declaration of Human Rights 1948 states that "it is essential if a man is not
to be compelled to have recourse, as a last resort, to rebellion against tyranny
and oppression, that human rights should be protected by the rule of law."
In Prasad v
Republic of Fiji
[2000] FJHC 121 Justice Gates commenting on the oaths that Judges take said:
"Because a judge may
be called upon to pronounce upon the legality of executive action when an
instance of supra-constitutionality occurs, it is a wise counsel for a judge,
indeed for the Bench of Judges, to make no public statement on the matter."
It is of fundamental importance
that judges themselves should set a good example by prescribing and observing
the highest ethical standards. This is essential for the judges' moral
authority.
The Bangalore Principles of
Judicial Conduct adopted by the Judicial Group on Strengthening Judicial
Integrity in 2002 recognize that the concept of judicial independence is at the
heart of the rule of law.
In 2002 the Fiji Judiciary adopted
the "Guideline Principles for Judicial Officers" based on the Bangalore
declaration. Chief Justice Daniel Fatiaki said the guidelines were established
after a lengthy gestation since they were first mooted in 2000.
It sits as a principle of judicial
independence and as a pre-requisite to the rule of law and a fundamental
guarantee of a fair trial.
A judge is required to exercise the
judicial function independently on the basis of the judge's assessment of the
facts and in accordance with a conscientious understanding of the law, free of
any extraneous or impermissible influences, inducements, pressures, threats or
interference, direct or indirect, from any quarter or for any reason.
In the Takiveikata case, a hight
profile politician was convicted on four counts of incitement to mutiny before
in the High Court before Justice Gates, now the Acting Chief Justice.
Takiveikata appealed against his conviction on the grounds that the trial judge
was biased against him. He alleged that Justice Gates had passed comment at the
social function where the judge reportedly said he "would put Takiveikata away"
or words to that effect. Evidence was adduced before the court of appeal from
the Brodies the couple who had overheard Justice Gates comments. The appeal
court set aside a finding of guilt of the accused by the trial judge. Their
Lordship's opinion indicate that the test of bias is whether in the mind of a
fair independent observer seated at the back of the courtroom, the accused would
receive a fair trial because of the appearance of prejudgment.
It is an unenviable situation for
any judge to defend his integrity and be cross-examined in the witness box and
have his credibility questioned by an appellate bench. The case suggests that
restraint, discretion and aloofness are virtues for one holding judicial
office.
RECENT EVENTS IN FIJI
In May 2006, Fiji's ruling SDL
party was returned for a second five year term in national parliamentary
elections.
On 5th December 2006,
members of the Fijian military placed members of the government under house
arrest. The Commander of the Republic Fiji Military Forces ("the RFMF")
Commodore Bainimarama, purported to "assume" executive power as Acting President
of Fiji. The Prime Minister, President and Vice President were dismissed.
On 3 January 2007 the Chief Justice
Fatiaki and Chief Magistrate were told by members of the RFMF to take immediate
"voluntary" leave.
It was Gates J. who made the
following remarks in
Jokapeci Koroi & ors v Commissioner of Inland Revenue & the Attorney-General
Lautoka High Court,
Civil Action No 0179/2001L:
"Unruly persons are
unlikely to seek validation for their usurpations from judges. Nor should the
courts give their sanction when application is eventually made under the
doctrine of effectiveness, for there is no such force behind it. In this
regard, I respectfully differ from Kelsen. Judges should expect and anticipate
that the usurpers will see them removed. So be it. Judges do not represent the
law. The doctrine of effectiveness has no moral underpinning, and judges do no
honourable business therefore in according lawfulness to de facto
administration."
In accepting appointment as acting
Chief Justice, Gates J. is perceived by some to have lent the appearance of
collaborating with the military, the perpetrators of a coup that removed the
country's elected government.
It is one thing to espouse the
principles. The real test is whether during a constitutional crisis, judges can
perform to the very standards that they publicly espouse.
Fiji's judiciary has taken some
hard knocks in both 2000 and 2006. There is no question that as an institution
the judiciary has haemorrhaged and is continuing to bleed as a result of a
succession of political crises in the country since 1987.
Never before has it come under such
searching, prolonged and open criticism. Since May 2000, collegiality among the
judges of the High Court has been more apparent then real. The contrasting
approaches adopted in dealing with those events were subsequently reinforced by
personal differences and factionalism to the ultimate detriment of the
judiciary.
Chief Justice of Australia Murray
Gleeson commenting on the judiciary's reputation said: "that reputation is
our principal asset. It represents capital that has been built up by generations
of judicial officers. We hold it on trust. It is not ours to fritter away as
we please."
In countries Fiji, Pakistan and
Zimbabwe where the rule of law is under threat and being undermined in one form
or another, there is a greater burden on the judiciary to reinforce
constitutionalism and respect for democratic principles and constitutional
government. Ultimately it is the judiciary more than any other of the other
branches of government that carries the greatest responsibility of ensuring that
democratic values are reinforced and promoted. A fragile and fractured
judiciary represents a threat to the rule of law. Ultimately it is the judiciary
more than any other branch of government that carries the greatest
responsibility of ensuring that democratic values are reinforced and promoted
When judicial officers are unable
to deal professionally with one another and where differences of opinion are
personal, spiteful and longstanding, judicial collegiality is compromised and
the integrity of the institution as a whole is tarnished. Unprincipled
politicians who care little about judicial ethics or the rule of law, more
driven by expedient and partisan goals are likely to exploit these
vulnerabilities in a manner that encroaches on the independence of the
judiciary. In a country such as Fiji where coups are a way of life, this threat
to the institutions of justice is unlikely to disappear overnight. Lawyers and
the organized profession have a duty to assist the building of a credible and
independent bench of judges.
The response of Fiji lawyers to the
suspension of the Chief Justice has not matched the robustness of their
Pakistani counterparts who have demonstrated greater mettle and courage. The
suspension of the Chief Justice has been met with a curious lethargy seeming to
attract little outrage or anger.
Judges and lawyers have a moral
obligation to defend Justice and the institutions of Justice and not to seek to
tear it down. This may sound elementary even redundant in established
democracies. But in a country like Fiji which has struggled with democratic
government, it is a very real challenge both for judges and lawyers.
It takes a degree of courage to
stand for principle. It is worth remembering, for example, that the lawyer who
first advocated the fundamental credo of counsel and the right to silence was in
fact hung, drawn and quartered and his head stuck on a pike on the Aldersgate in
London. It was John Cooke who had the courage to act as prosecutor of the tyrant
Charles I and was executed for his trouble by Charles II. It was he who had the
courage to use the law to establish that even the King was not above the law.
There can be no good and clean
government without respect for the rule of law, an independent and competent
judiciary, as well as transparent and well-functioning financial markets.
International judges and the global
profession, especially from Commonwealth countries must monitor events in Fiji
and do their part in supporting a strong, fearless and independent judiciary in
the country. Left to its own, the country is likely to sink further into the
pit of dictatorship and tyranny.
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