FLIP FLOP PUNISHMENT: Indian women mete out punishment to rapists
One important electoral challenge was surprisingly indicated in Chief Justice Anthony Gates’ Submission to the Standing Committee on Justice, Law and Human Rights on the Code of Conduct Bill (read Mere Naleba and “Gates not happy with system”, FT 8 Dec. 2016).
Justice Gates was apparently “disappointed that there wasn’t a constituency system in the new parliamentary arrangements” hence no mechanism whereby MPs could go “back to the people who had elected or who haven’t elected you and get the feedback as to what they thought was going on in Parliament”.
This is of course a logical consequence of the “one national constituency system” imposed on Fiji by the unelected Bainimarama Government in 2013. Not having local constituencies clearly undermines one crucial benefit of parliamentary democracy whereby elected MPs who do not perform as expected by their voters, face the prospect of being rejected by the same voters at the next election. Opposition political parties and independent electoral experts had made this very same point when the electoral system (and the 2013 Constitution) were imposed on Fiji, but to no avail. While Gates’ recent submission refers only to an electoral weakness, the public ought to remember two other judgments by Justice Gates in 2001 and 2000, where he reminded the Interim Qarase Government after the 2000 coup, of the importance of laws regarding constitutional legitimacy.
Why it was Justice Gates making these comments and not the Fiji Electoral Commission is another story.
There is of course a far bigger story which examines the personal role of Chief Justice Anthony Gates since his 2001 judgement: why does Fiji’s Chief Justice not comment on the massive human rights problems created by a constitution imposed by a military government deemed illegal in 2009 by the highest court in the land (Appeals Court), and instead zooms in on a relatively minor electoral issue?
The 5% Threshold
Most electoral experts agree that while the current electoral system has a positive feature in that the number of seats in parliament are proportional to the votes received by political parties, one clear weakness is that “winning” parties (or Independents) must receive at least the 5% of all votes cast or a massive 27 thousand votes.
Thousands of voters, who voted for small parties like the Fiji Labour Party or the People’s Democratic Party or for Independents, were effectively disenfranchised because their choices did not achieve the 5% threshold (as had been warned by critics). It made a mockery of the frequent advertisements by the Bainimarama Government that 1 person = 1 vote = 1 value. Collectively, these wasted votes (some 36 thousand of them) represented more than 4 seats in Parliament, which were effectively transferred to the larger parties (some 3 to Fiji First Party and 1 to SODELPA).
The 5% threshold, which worsens the “one constituency problem”, must be removed.
The one national constituency problem
It is abundantly clear after the 2014 Election that having the “one national constituency” enabled the Fiji First Party, probably as planned, to focus their elections strategy on the populist electoral support of Bainimarama (candidate number 279) who thereby personally received a massive 202 thousand votes.Effectively, the majority of the other Fiji First Party candidates (except for a few canny ones), became superfluous, the last one r ecently getting into Parliament having less than 600 votes. They could have been any Tom, Dick, Harry or balabala.
In contrast, many other candidates from small parties disqualified by the 5% threshold rule, received more votes but were not elected.
There were 6 from NFP, 4 from FLP, 4 from PDP (including one unknown Vuniyayawa with a hilarious 4956 votes (his candidate number was 297); 2 from One Fiji Party (one with 2788 votes), and even an Independent (Roshika Deo) with 1,055 votes. The public might note that these “unsuccessful” candidates had far more votes than that received by several current Ministers and Assistant Ministers such as Akbar, Usamate, Delana, Sudhakar, Koya, and Bhatnagar.
Weakens Government MPs
FFP supporters should note that the current electoral system discourages internal FFP democracy and accountability to voters.
With most FFP MPs (including the Speaker of the House) personally receiving small numbers of votes, they have no voter base to back them up, and hence to survive, must be totally subservient to the wishes of the FFP leaders. The FFP MPs must blindly support their leaders’ motions, however undesirable, and oppose every Opposition motion, however sensible, as has already been illustrated in several cases. Having a less than independent Speaker of the House has also allowed the expulsion from parliament of Opposition MPs for minor reasons (thereby denying thousands of voters their voice in parliament), and also discouraged strong independent views in Parliament on strange grounds ruled by the Speaker as “un-parliamentary language”.
None of this is good for parliamentary democracy.
But some canny FFP candidates
I suspect that many Fiji First Party candidates in the 2014 Elections regretted that they followed “party orders” and asked their voters to vote for Bainimarama and his Candidate Number 279, thereby not getting enough votes for themselves.
But do not forget the canny (smart) Fiji First Party candidates who made sure that they received enough personal votes, like: Khaiyum, Parveen Bala Kumar, Kubuabola, Reddy, Nadalo, Tikoduadua, Cawaki, Naiqamu, Brij Lal right down to Jiko Luveni and Inia Seruiratu. You can be sure that even if the Bainimarama Government refuses to budge from the one constituency system, the candidates in the 2018 Elections are going to campaign for votes for themselves, not some “leader”.
The public might want to come out in full support of Justice Gates idea that there ought to be specific constituencies for candidates and voters.
Of course, there can be other improvements as well.
There are many other possible improvements to the electoral system in addition to having a geographically practical number of constituencies. There can be the addition of a Closed List system to ensure proportionality as well as increase the number of women in Parliament (through appropriate placement on the Party Lists). The ballot papers must allow Party symbols and photos to assist voters. Far more important, there must be removal of government control over the Elections Office, Electoral Commission and MIDA.
There must also be removal of all legislation, including the many decrees that discourage the media and journalists performing their necessary role of “watchdog on Government” although the media “lapdogs” will happily lap on. Unfortunately, such comprehensive changes, which must meet with the approval of Opposition parties, require more than just “tinkering” with the imposed 2013 Constitution and electoral system.
Gates’ broader constitutional challenges
The Fiji public might remember a 2001 case Koroi v Commissioner of Inland Revenue in which the learned Justice Gates had pronounced (his words in italics):
“It is not possible for any man to tear up the Constitution. He has no authority to do so. The Constitution remains in place until amended by Parliament, a body of elected members who collectively represent all of the voters and inhabitants of Fiji. Usurpers may take over as they have in other jurisdictions, and in some cases rule for many years apparently outside of, or without the Constitution. Eventually the original order has to be revisited, and the Constitution resurfaces … For the courts cannot pronounce lawfulness based simply on the will of the majority. … and the courts will not assist usurpers simply because they are numerous, powerful, or even popular.”
Gates was of course talking about Qarase’s attempt to abrogate the 1997 Constitution following the 2000 coup. I suspect that Justice Anthony Gates, given his personal role in legitimizing Bainimarama’s 2006 military coup, would not be particularly keen to apply his 2001 judgement to the Bainimarama Government’s purported abrogation of the 1997 Constitution. But the Fiji public cannot forget that that the 2013 Constitution and its electoral system has also been imposed on Fiji without due legal process, or parliamentary or popular approval, and indeed, against the opposition of all other political parties, just as Rabuka’s 1990 racist constitution had been opposed by Opposition parties.
While some might think that the results of the 2014 Elections “validates” the 2013 Constitution, Gates’ 2001 judgment stated clearly “the courts cannot pronounce lawfulness based simply on the will of the majority”. The public may be reminded that the many campaigning issues in the 2014 Elections did not include the legitimacy of the 2013 Constitution or the suitability of the electoral system.
No need to reinvent the wheel
The public might care to remember that the Bainimarama Government had once upon a time appointed the Yash Ghai Constitution Commission to revise the 1997 Constitution and it had consulted widely throughout Fiji and with international experts. Despite being summarily rejected by Bainimarama and his advisers (on unconvincing grounds), the Yash Ghai Draft Report had many positive elements some of which addressed the current weaknesses. However weary the Fiji public may be of the political instability and the social discord faced for the last thirty years, these constitutional issues must be revisited for the sake of the future generations.
It is unfortunate that NGOs like Citizens Constitutional Forum and the many “Old Hands” who used to agitate energetically for constitutional reform after the 1987 coups, appear to have gone into hibernation after the 2006 coup, some rather conveniently. But then, it might be an opportune time for a new generation of younger, less tired and less tainted activists to take up the cudgels for electoral and constitutional reform. They can take encouragement from Justice Gates’s recent submission that people “should not be frightened” to bring general grievances forward.
As Gates would himself probably ruefully acknowledge with respect to his 2001 judgments, such advice is easier to give than to implement.
Judiciary postscript 1:
One might note that currently shoved under the national carpet is the Pandora’s Box which has been opened by the recent judgement of the Fiji Court of Appeal comprising Justice William Calanchini, Justice Almeida Guneratne and Justice David Alfred (FT 30 Nov. 2016), that the Fijian Supervisor of Elections (Saneem) must comply with all the decisions and directions given to him concerning the performance of his functions by the Fijian Electoral Commission and that he was wrong not to do so.
The Electoral Commission had received objections against Parveen Kumar and had ruled that the Fiji First candidate be disqualified from the National Candidates List. They had also ruled that the Fiji Labour Party candidate Steven Singh be reinstated in the final list of candidates but Mr Saneem had gone ahead without the instructions of the commission. Parveen Kumar, who the Electoral Commission had disqualified from standing, is a Minister in the current Bainimarama Government. Should Parveen Kumar now resign from Parliament given that he should not have been allowed to stand in the first place?
Should the Supervisor of Elections (appointed by the Bainimarama Government without political consensus) now resign given that his judgment was blatantly and unreasonably wrong given what “common sense” would have indicated? There are many nationally important legal issues that the Chief Justice Anthony Gates and the slumbering emasculated Fiji Law Society could exercise their collective minds on, rather than the lack of constituencies in Fiji’s electoral system.
Judiciary postscript 2
Fiji can be encouraged that the judiciary (which Justice Anthony Gates heads) can be given some well-deserved credit, with two politically difficult judgments they have made in recent months.
The first is the Fiji Appeals Court decision against the Supervisor of Elections (as outlined above).
The second is the conviction by Justice Aluthge of eight policemen and a soldier, of the rape and sexual assault of Vilikesa Soko (who later died of his injuries), and the perversion of the course of justice.
While there is a general feeling among critics of the Bainimarama Government that the Sri-Lankan dominated judiciary cannot be trusted to deliver unbiased judgments, these two cases at least suggest otherwise. Some judges, even if hand-picked by the political masters of Fiji, will abide by the principles of their profession and not be hand-maidens of injustice.
What happens eventually to policemen and soldiers convicted and jailed for human rights abuses is unfortunately another story for the public to follow, given that the current Commissioner of Police and the current Commissioner of Corrections (Prisons) are both ex-military personnel, with neither having clean personal records.
From Fiji Sun Archive:
By VICTOR LAL
The Fiji Court of Appeal judgment which overturned the High Court ruling that the 2006 was lawful could have gone one step further and ruled that the first judgment in October 2008 was flawed because two of the judges, Justices Anthony Gates and Justice Davendra Pathik, should have recused themselves from hearing the case. In the case of Justice Gates, he should have recused himself because his own appointment as acting Chief Justice was under legal challenge and any ruling in the Qarase versus Bainimarama was going to directly impinge on his own appointment. His sitting on the case was like asking the fox to guard the henhouse.
What about Justice Pathik? He had compromised his position before the judgment was delivered in October 2008 because during the hearing he was captured by Fiji TV “powdering” the coupist and usurper Frank Bainimarama during the Holi festivities. The occasion referred to is the colourful and joyous holi party at the residence of Prabhakar Jha, the Indian High Commissioner to Fiji, on 29 March 2008. The Fiji Television captured and relayed to the general viewing public Justice Pathik and Bainimarama celebrating holi together at Mr Jha’s residence.
Shortly before the judgment was delivered in October 2008, I had written my column raising the question of apprehended bias and called for recusal on Justice Pathik’s part but the Fiji SUN’s legal team feared the wrath of Justice Pathik given his unabashed support for the illegal regime. But what could have been expected of him, a man who should have retired after the court ruling that those over 55 years should simply pack up and go home. Justice Pathik is nearing over three quarters of a century.
Do we recall his statement about “Regulating the Legal Profession” at the Attorney General’s conference in Fiji where he reminded lawyers and the public to leave the judges alone. Yes, on one level Justice Pathik was correct, but if a judge’s particular behaviour or judgment raises questions of fundamental importance, he must be subjected to the same scrutiny as an individual citizen of the State, for as a senior law Lord Atkin once remarked, “Justice is not a cloistered virtue”.
I want to state my case as follows regarding the Qarase and Others v Bainimarama and Others that was delivered on 9 October 2008. Imagine, if you will, a scenario where Justice Pathik, in the course of writing his judgment, along with acting Chief Justice Anthony Gates and Justice John Bryne, was forced to ask himself: “Don’t I know the Commodore from somewhere?” The answer would have been as follows, “Yes, Your Honour, from the Holi celebration where Fiji TV captured you and the Commodore exchanging coloured powder”.
So, what should have his Honour done? Justice Pathik should have, I want to humbly submit, seriously considered stepping down from the case. And if he had refused to step down, than Justices Gates and Bryne should have decided what course of action to take, to resolve the matter. I am basing my submission on AWG Group Ltd (formerly Anglian Water plc) and another v Morrison and another ( EWCA Civ 6) British Court of Appeal, Civil Division (Lord Justice Mummery, Lord Justice Latham and Lord Justice Carnwath) 20 January 2006.
If we are to accept the “Morrison Principle”, Justice Pathik should have, in my humble submission, recused himself from hearing the case and from writing up his judgment. As the three judges in Morrison ruled, disqualification of a judge for apparent bias was not a matter of discretion, and, in a case where the principle of judicial impartiality was properly invoked, inconvenience, costs and delay did not count.
In Morrison, the question arose, “Don’t we know each other from somewhere?” In that case, the trial judge, Justice Evans-Lombe was reading into a case on the eve of the trial when he realised that he knew one of the claimant’s proposed witnesses, one Mr Jewson. Justice Evans-Lome’s family had known Mr Jewson’s family for many years. Their children were friends, and they had attended dinner parties and played tennis together. The judge immediately informed the parties. In response, the claimant decided that it would not call Mr Jewson to give evidence. Notwithstanding the claimant's decision, the defendant asked Justice Evans-Lombe to withdraw.
Justice Evans-Lombe refused, as Mr Jewson was no longer being called as a witness. He took into account the delay, disruption and additional cost that would flow from having to find a new judge. The defendant appealed. Although there was no suggestion of actual bias, or that Justice Evans-Lombe had any personal interest in the outcome of the litigation, the defendant argued that there was the “real possibility of apparent bias”.
Lord Justice Mummery said that disqualification of a judge for apparent bias was not a discretionary matter. Inconvenience, costs and delay did not count in a case where the principle of judicial impartiality was properly invoked. That was because it was the fundamental principle of justice, both at common law and under Article 6 of the European Convention on Human Rights. If, on an assessment of all the relevant circumstances, the conclusion was that that principle either had been, or would be, breached, the judge was automatically disqualified from hearing the case. In the unfortunate circumstances of the present (Morrison) case, the judge should have recused himself.
In Weber v The Queen (1994), the basic test for disqualification on the ground of apprehended bias was as follows: “Whether, in all circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the trial judge might not bring an impartial and unprejudiced mind to the resolution of the question.” The test has been described as “double might test” – a possibility, not a probability, of bias.
The rationale is that no person shall be a judge in his or her own cause and, secondly, that it is important to maintain public confidence in the fairness and impartiality of the judicial system. The legal question and debate is whether Justice Pathik’s conduct at the Indian High Commissioner’s residence had crossed the line into impermissible indications of bias.
In Pinochet (No 2), the House of Lords unanimously held that one of their brethren, Lord Hoffman, who had sat and determined R v Bow Street Metropolitan Magistrate, Ex parte Pinochet Ugarte (Pinochet No.1) was automatically disqualified from hearing the case because of the apprehension of bias. The House of Lords was prepared to automatically assume bias from Lord Hoffman’s relationship with Amnesty International, one of the interveners in the proceedings. This assumption of bias amounted to a departure from precedent.
It is worth pointing out that Pinochet had put the British judiciary in the glare of national and international public attention. Like all high-profile cases, lawyers and legal academics engaged in a prediction game (something now being discouraged by the recent Hickie judgment against Fiji Times), stating which judges will rule in favour of General Augusto Pincochet and which judges might go against him. In the Pinochet case, Lord Hoffman had not disclosed his connection with Amnesty International. He was merely a director of Amnesty International; in fact, he was a director of Amnesty International Charity Ltd, he was not even a member of Amnesty International itself, although his wife was in the Press and Publicity section of Amnesty International’s International Secretariat.
The Pinochet judgement is also relevant, albeit, tangentially, in the Qarase-Bainimarama case regarding Justice Pathik. We know from the University of Fiji’s official website, that both the Pathiks are represented on the University’s Council but on behalf of the Arya Pratinidhi Sabha of Fiji, which is one of many stakeholders in that university. Justice Pathik was also appointed as director of the University of Fiji’s Suva campus. But what has the Pathiks’ connection with the University of Fiji to do with the Qarase and Others v Bainimarama and Others case.
I would argue that the apprehension of the “Pinochet bias” test is relevant because in March 2008 (and after the High Court had heard the Qarase case between 5-20 March) the President Ratu Josefa Iloilo was appointed the first Chancellor of the University of Fiji. In delivering his key address at the first graduation ceremony that was held in Lautoka on 28 March, the President said he was honoured to accept the position adding that the new University held promise for Fiji as the nation strives to position itself in a rapidly globalizing knowledge society.
“I am honoured to be the first Chancellor of our University of Fiji, thank you for this honour, and my appreciation to you for such a dignified and splendid installation ceremony. Ratu Josefa was also awarded the first honorary doctorate of the University. Like the “powdering ceremony” at the Indian High Commissioner’s residence, the links of both the Pathiks and the President to the University of Fiji could, arguably, have given rise to the fear of apprehended bias in the Qarase-Bainimarama case. After all, the whole legal arguments before the Fiji High Court had been the constitutional role of the President before and after the 2006 coup.
In Pinochet, the British Law Lords had attacked their colleague Lord Hoffman who had failed to declare his links and that of his wife with Amnesty International. In their written judgement, the Law Lords were giving their detailed reasoning for overturning a ruling by a previous panel of Law Lords, including Lord Hoffman, which had denied the former Chilean dictator immunity from prosecution for his crimes against his opponents.
One of the Law Lords, Lord Hope had said: “In view of his links with Amnesty International as the chairman and a director of Amnesty International Charity Limited he could not be seen to be impartial. There has been no suggestion that he was actually biased. He had no financial or pecuniary interest in the outcome. But his relationship with Amnesty International was such that he was, in effect, acting as a judge in his own cause.”
Another appeal judge, Lord Hutton, said: “I consider that the links between Lord Hoffman and Amnesty International, which had campaigned strongly against General Pinochet, and which intervened in the earlier hearing to support the case that he should be extradited to face trial for his alleged crimes, were so strong that public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand.”
Lord Browne-Wilkinson, who led the appeal hearing, stressed Lord Hoffmann was not guilty of any bias but said the appearance of absolute impartiality had to be maintained. They “reluctantly” agreed with General Pinochet’s legal team who argued that Lord Hoffmann’s links to Amnesty had given rise to “a real danger of bias” in the hearing.
As I have indicated above, I am not suggesting that the links between Justice Pathik and Ratu Iloilo with the University of Fiji is wrong but in the eyes of the law, I would humbly submit, it raises the question of the fear of apprehended bias. I am equally aware that Justice Pathik had refused to recuse himself in another case that was brought against him by Angie Heffernan, the NGO activist. She had made the application to recuse Justice Pathik from hearing the case she had brought against Justices Byrne and Gates. In Justice Pathik’s ex-tempore ruling, he had stated the application was “frivolous to say the least and was a clear case of abuse of process of the Court”.
In 2001, I had argued that Justice Daniel Fatiaki, later Chief Justice, “must recuse himself from hearing the case brought by the CCF against the President Ratu Josefa Iloilo following the 2000 coup”. I want to humbly submit that Justice Pathik should have done the same. I am surprised that Qarase’s legal team had not entertained the idea of Justice Pathik’s recusal after Fiji TV aired the holi celebration, which clearly shows the judge and the commodore “powdering” each other in a very friendly manner, in the presence of other guests, which included the interim Attorney-General Aiyaz Sayed Khaiyum, a fourth defendant in Qarase and Others v Bainimarama and Others.
In 2008, the Fiji Court of Appeal and the Supreme Court were also confronted with the apprehended bias test in Gates v Takiveikata; State v Takiveikata  FJSC 16; CAV0015.2007S & CAV0016.2007S (24 July 2008). This time it was about what conversation took place between Justice Gates, who had jailed Ratu Inoke Takiveikata following the mutiny trial, and the Brodies (Donald and Margaretha Brodie) at a cocktail party at the French Embassy on Bastille Day on 14 July 2004. The Brodies claimed in their affidavits that Justice Gates had told them that he was going “to put him away” – Ratu Takiveikata.
In his affidavit of 21 December 2004, Justice Gates acknowledged that a conversation had occurred between him and the Brodies at the French Embassy. However, he gave his account of the conversation as follows: “We exchanged pleasantries, the details of which I do not now recollect. I did not say anything about the conduct to date of the case by the defence, nor about any pending applications. Nor did I express a view on “a form of traditional Fijian trial” or as to any punishment I was minded to pass in the event that Rt Inoke were to be convicted. It was Mr. Brodie who raised the topic of Rt Inoke’s trial. He asked whether charges Rt Inoke faced were serious. I said he faced several different charges but the courts had in the past considered such offences as serious. Much would depend upon the facts of the case and how the evidence unfolded I said. I then left.”
Both the Fiji Court of Appeal and the Supreme Court ruled in Ratu Inoke’s favour on the issue of apprehended bias, with the Supreme Court endorsing the Court of Appeal’s position, which had ruled: “For judicial bias to result in a retrial, the test has been formulated by the High Court of Australia recently in Antoun v The Queen  HCA 2, 80 ALJR 497. This Court relied on that case in its decision in the application to adduce further evidence; further counsel for the appellant and counsel for the State agreed that it formulates the proper test. Antoun was a case of alleged bias on the part of the trial judge in dealing with a submission of no case to answer. We again set out two passages from judgments delivered in the High Court. Hayne J stated at p18: ‘The principle to be applied in determining these appeals is not in doubt. If a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide, the judge is disqualified from trying the case’.”
In Hefferman’s challenge, Justice Pathik claimed that there were only two grounds for his recusal: one, that his appointment was unconstitutional; and two, his age. But in this case I would argue, it is another, and a far more powerful one: a picture tells a thousand words, at the Indian High Commissioner’s residence.
Justice Pathik might want to ask: who is the “fair-minded and informed observer”? The answer, in my humble submission, is the television viewer (in possibly hundreds), who religiously followed the hearings on Fiji TV, and is acutely aware of the questions and interjections from Justice Pathik during the legal arguments before him and his fellow brother judges, and who witnessed the “holi powdering” event on Fiji TV.
I rest my case on the “Morrison and Pinochet” precedents of recusal, supported by the rulings in Gates v Takiveikata on the “fair - minded and informed observer” test. I want to state that my submission and critique of Justice Pathik’s behaviour, as I understand the legal position on the “fair-minded and informed observer” test, is in keeping with Lord Salmon’s plea in Regina v Commissioner of Police of the Metropolis, Ex parte Blackburn (No 2)  2 QB, at 155G), and quoted recently by Justice Hickie in the Fiji Times case: “It follows that no criticism of a judgment, however vigorous, can amount to contempt of Court, providing it keeps within the limits of reasonable courtesy and good faith.”
As far as I am concerned, the Fiji High Court judgment in favour of Bainimarama should never have been delivered by the court because two of three judges – Justices Gates and Pathik – had failed the fair-minded observer test.