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Précis of Remarks by


Commonwealth Lawyers Conference

Nairobi, Kenya 


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. 


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.