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

Written by Lucy Anna Mathieson Human 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 be fairly 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 uniquely positioned 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 the 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 ratio decidendi of the recent High Court Judgment,1 that endowed the Office of the President with far-reaching prerogative powers, questions can be raised as to the potential for such broad, constitutionally unlimited Presidential prerogative to lead to the abrogation of the Constitution itself in addition to providing encouragement to would-be usurpers to utilise those ultimate reserve powers in the future. Whilst the Judgment itself does raise serious questions specific to the constitutionality of the actions during the December 2006 coup, its reasoning raises more serious concerns about the applicability of legal theory as a legitimizing force for coup regimes. The Commodore had, afterall, abrogated the Constitution in his actions; the President had then sanctioned those actions, and that of the RFMF, and then protected them from prosecution and by selecting the Commodore for the position 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 the prerogative to act in times of emergency, at what point can prerogative be questioned particularly when the decisions are not merely questionable, but clearly unconstitutional?2
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Qarase and Others v Bainimarama and Others (9 October 2008). On 9 October 2008, the Fiji High Court upheld decisions made by the President after the December 2006 coup, including the granting of immunity to the interim Prime Minister and his soldiers involved in the overthrow of the Qarase government. The controversial ruling dismissed deposed Prime Minister Laisenia Qarase's challenge of the President's powers and cemented the President's authority and prerogative in emergency. The ruling by judges Anthony Gates, John Byrne and Devedra Pathik was delivered by Acting CJ Gates to a packed courtroom. The Judgment comes as a controversial one and to an extent follows a growing body of jurisprudence within the Commonwealth, whereby Judicial decisions often serve to legitimate governments taken by force, otherwise referred to as coup jurisprudence. The recent High Court Judgment appears to show that the court held that the President has very wide prerogative powers; powers that not only authorised the interim Government appointments in January 2007, but also allows the President to continue to govern 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 Presidents discretion. Justice Gates stated that the decision by the President to ratify the dismissal of Mr Qarase and appoint Dr Jona Senilagakali as caretaker PM to

The case itself was about the lawfulness or otherwise of certain acts carried out by the President following military intervention in the government of the State. The defendants maintain that the President retained prerogative powers which enabled him to act in an emergency for the public good. Those powers then enabled him to ratify the acts of the military in the takeover, and ultimately absolve participants of unlawfulness. But did such powers allow him to act without specific authority of the Constitution? Were his powers as the plaintiffs argue circumscribed within the confines of the Constitution with regard to the dismissal of the Prime Minister and his Cabinet and the dissolution of Parliament? Were those powers further confined by the common law by the requisite conditions set out in the case of Prasad: Republic of Fiji & Ano.v Prasad [2001] 2 LRC 743. As advised by the Fijian lawyer, Graham Leung, the recent Fiji High Courts decision reliance upon prerogative powers that are equal or analogous to those of the British monarch is wrong and bad law.3 There are, afterall, very good reasons, for placing limitations upon the scope of prerogative powers. The Fijian Constitution does provide for Presidential discretion under section 96(2), whereby it states that, this Constitution prescribes the circumstances in which the President may act in his or her own judgment. Arguably, there are situations that the Constitution may not necessarily have prescribed for which there are prerogative powers. However, in such instances, it would seem, in keeping with a more reasonable application of the Doctrine of Necessity, that in such instances, the Presidents prerogative should be guided by the Constitution. Jurisprudence from other jurisdictions has upheld that the basic structure of a Constitution cannot be altered because in upholding the unconstitutional the very basis of democracy, good governance, rule of law, and ulitimately, human rights fall into disarray.4 Moreover, what inevitably begins is a pattern of judicially-sanctioned, constitutionally undefined powers that cannot be questioned and are bound to be reflective of a wider pattern of oppression that limits freedom of expression and the ability to express dissent or political opposition. A climate that does not allow room for questioning illegitimate regimes is, in effect, Kelsenian theory5 in practice,6 confusing legality and legitimacy or better said, legitimizing regimes by legalizing their actions. And, whilst the recent decision did not rely wholly upon Doctrine of Necessity, it is representative of the jurisprudence stemming from coup regimes across the Commonwealth. In this regard, judicial independence is far too an important public interest issue not to be publicly discussed when the occasion demands, lest silence induced by tact or timidity be misconstrued as acceptance of the unacceptable. A judge who strays beyond his judicial functions cannot escape public scrutiny and criticisms of his extra-judicial activities.7 The latest Fiji High Court Judgment is symptomatic,

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, Justice Gates 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 also advised that the President's decision to make and promulgate legislation in the interest of peace, order and good government in the intervening period prior to a new Parliament is upheld as valid and lawful. Justice Gates advised that the granting of immunity by Promulgation was within the powers of the President in the 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 allow him to discharge duty without the specific authority of the Constitution. Justice Gates advised that the pivotal question was how far the courts could subject the 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 November 2008]. 4 The Indian Supreme Court Decision in Keshavananda Bharati Vs. State of Kerala (AIR 1973 SC 1461) and two United States of America Supreme Court decisions, one expressly and one implicitly, address this issue most directly: Youngstown Co. v. Sawyer and Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2775 (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 has furnished the primary doctrinal vehicle to reach this result. While some courts have adopted Kelsen's proposition that efficacy of a coup bestows validity in an unadulterated form, others have modified this with or substituted it by doctrines of state necessity, implied mandate, and public policy. Following Kelsen, they fail 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 misuse of Kelsens 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 of 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, so to speak acquires a binding quality. Kelsen was naturally interested in analysing all of the main models of constitutional development: orderly constitutional drafting in constituent assembly followed by popular ratification as well as revolutionary establishment of new regimes. His interest in both should not be misconstrued as approval of both. See, P. Oliver, Comments on the Misuse of Kelsens Theory (Conference proceedings: Legal Deterrents to Coups, January 15 16, 2001). 7 A Diminished Judiciary Sir Vijay R Singh [in Journal of South Pacific Law] at iswww.paclii.org 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) [last accessed on 17 October 2008].

and in recent years the Fiji experience, alongside several other Commonwealth countries, have not been the best role models.8 Professor John Hatchard & Dr. T.I. Ogowewo (2003) in their analysis of the jurisprudence that has developed from coup regimes within the Commonwealth have stated that a proactive approach to the problem of unconstitutional usurpations of government also calls for the enthronement of a culture of constitutionalism. The absence of this culture prevents citizens from perceiving with clarity the vice of a usurpation (such as the removal of constitutional safeguards) if the usurpation occurs at a time when there has been a failure of democracy and government.9 They have argued that the absence of a culture of constitutionalism is created by a number of factors: first, one effect of military rule is to thwart the development of a constitutional culture. When a democracy is then reintroduced, the institutions need to undergo a sharp learning curve.10 As the learning process is slow the institutions may become enfeebled leading to the twin failures. Another military coup then occurs to correct these failures with the ironical consequence that a full-blown military dictatorship purports to correct an inchoate or at worst an illiberal democracy. The result is a start-stop process that continually thwarts the development of a constitutional culture. A compounding factor in this process is the jurisprudence on coups that encourages this cycle, where success is rewarded with validation.11 And, in countries such as 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.12 Fijis system of government is based on a written constitution and subscribes to the general principle of a separation of powers between the three branches of government, namely, the legislature, the executive and the judiciary. Under Article 118 of the Constitution the judges of the State are independent of the legislative and executive branches of Government. Fiji is a signatory to the 1997 Beijing Statement of Principles of the Independence of the Judiciary13 in the LAWASIA region. These principles stress the importance of the independence 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 High Court judges are appointed by the president on the recommendation of the Judicial Service Commission. That appointment should be made after consultation by the commission with the minister of justice and the relevant sector standing committee of the House of Representatives. As a consequence of the actions of the coup leaders in Fiji, none of these was in a position to carry out his, her, or its constitutional functions. All subsequent
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Interference 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 Commonwealth Commonwealth Secretariat Part 1, pp.10 10 G.N. NaAbba, the Speaker of the House of Representatives, in his paper Military Rule and the Parliament in Nigeria: 19662000 (paper presented at the conference on Legal Deterrents to Coups, January 1516, 2001), observed thus: The continued overthrow of constitutional governments has over the years made 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 Commonwealth Commonwealth 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 number of Commonwealth member states have in common is that of the unconstitutional overthrow of government. Over the past thirty years, one third of all Commonwealth member states have experienced at least one usurpation or attempted usurpation. Eleven Commonwealth states have seen their civilian governments overthrown by the military. These are: Bangladesh, Fiji Islands, The Gambia, Ghana, Grenada, Lesotho, Nigeria, Pakistan, Seychelles, Sierra Leone, and Uganda. Nigeria epitomises the military in government. Between independence, in 1960, and 1999, the country experienced eight military rulers; four constitutions (one of which was never used); two civilian regimes that lasted a total of ten years, and one civil war attributable to military rule. Commonwealth states that have experienced attempted usurpations include Cameroon, Kenya, Maldives, Vanuatu and Zambia. Militias have also staged attempted usurpations in the Solomon Islands and in Trinidad and Tobago. [Professor John Hatchard & Dr. T.I. Ogowewo (2003) Tacking the Unconstitutional 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 Beijing Declaration, 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) at [last http://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].

recommendations to the president have accordingly been made without the concurrence of the only member of the Judicial 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 or Affirmation for due expectation of Judicial office, page 112]. In Prasad v Republic of Fiji [2000] FJHC 12116 Justice Gates 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 (i.e. will do justice) to everyone in accordance with the laws and usages of the Republic (that is he will not go against the law or make a perverse decision or one not in accordance with the law). Finally he will so act, with courage without malice or spite towards anyone. A judges first duty is to uphold the Constitution. 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 wiser counsel for a judge, indeed for the Bench of Judges, to make no public statement on the matter..A judges strength and value lies in continuing to hold office and to carry out his or her duties with integrity, even-handedness, boldness and courage. If the judiciary is deserving 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 of law".17 Judicial impartiality is essential to the proper discharge of the judicial office and judicial responsibilities. A competent, independent and impartial judiciary is necessary for the protection of human rights. These attributes are likewise essential if the courts are to fulfill their role in the proper administration of justice and in upholding constitutionalism and the rule of law. Furthermore, a judge is required to exercise the judicial function independently on the basis of the judges 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. The Bangalore principle also states that propriety and the appearance of propriety are essential to the performance of all the activities of a judge. The importance of this principle lay at the basis of decision of the Fiji Court of Appeal, where, in the Takiveikata case,18 their Lordships opinion indicate that the test of bias is whether in the mind of a fair independent observer seated at 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 Inland Revenue & the Attorney-General Lautoka High Court, Civil Action No 0179/2001L:

The Fiji Judiciary at the Crossroads: Judicial Independence and the Rule of Law Remarks by GRAHAM LEUNG Commonwealth Lawyers Conference Nairobi, Kenya (12 September 2007) Hdata:\GEL speeches\20070824JudicialIndpendenceCLA.gel, and http://209.85.175.104/search?q=cache:hNqqLsA3z58J:www.commonwealthlaw2007.org/speakers_material/assets/C9GrahamLeung.pdf+independence+of+ Fiji%27s+judiciary&hl=en&ct=clnk&cd=4&gl=in, and http://www.commonwealthlaw2007.org/speakers_material/assets/C9GrahamLeung.pdf [last accessed on 18 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 made within the doctrine of necessity and such revocation was unconstitutional and of no effect. The 1997 Constitution is the supreme and extant law of Fiji today. [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 bench over 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 was a 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 handed down 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 made by Gates 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 law 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, Kapi, Ward 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 of 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 facto doctrine by which the orders of a judicial appointee, whose appointment has been infected 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 judges should 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 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 administrations. [Emphasis added]

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