Fijileaks
  • Home
  • Archive Home
  • In-depth Analysis
    • BOI Report into George Speight and others beatings
  • Documents
  • Opinion
  • CRC Submissions
  • Features
  • Archive

Nazhat Shameem says CCF analysis of judiciary appears to have been guided by personal dislike, subjectivity, and pique that Ghai Draft was not, in the result, accepted by Government

16/11/2013

57 Comments

 
PictureProfessor Walsh
The Citizens Constitution Forum  criticized the 2013 Constitution on several counts that have been noted in earlier postings.  I asked the former Director of Public Prosecutions (1994-99) and Fiji's first woman High Court Judge, Mde Nazhat Shameem, for her opinions on what the critique had to say about the judiciary. This is a substantial response that points to a number of important errors in the CCF critique. Her response should be read now and kept for future reference.-- Croz Walsh.

Picture
Chief Justice Anthony Gates handing the new regime drafted Fiji Constitution 2013 to President Epeli Nailatikau
PictureNazhat Shameem
The CCF Critique of the 2013 Constitution by Nazhat Shameem

This is a comment only of the portion of the CCF analysis of the Constitution which deals with the judiciary. I leave the other parts of the analysis to others who may wish to comment. However, given the gross inaccuracies in relation only to the sections relevant to the judiciary, one cannot be optimistic about the validity of the CCF analysis on any other part of the Constitution.

In considering only the part dealing with the judiciary I found some surprising matters. Firstly, the analysis was misleading on the contents of the Constitution itself. One example is that it states that the Chief Justice is appointed by the Prime Minister when in fact the appointing body is the President. On legal matters to do with the Constitution, one must always strive for accuracy.


Secondly, much of the criticism is of the Judicial Services Commission and of the appointment of judges, but the analysis fails to tell us what the relationship is between appointment and independence. For instance the system of appointing judges in New Zealand is very political. Does it follow that the New Zealand judiciary lacks institutional independence?

Thirdly, while the analysis in other parts takes pains to compare the 1997 Constitutional provisions with the 2013 provisions, it does not do so in the case of the appointing of the judges. I believe that this is because the 2013 system is very similar to the 1997 system, and the CCF had no complaints about the 1997 system. Fourthly, the CCF makes an extraordinary statement about the alleged dominant role of the Chief Justice and the Attorney- General in the functioning of the Judicial Services Commission. Setting aside the Attorney for a minute, why is the greater control of the judiciary by the Chief Justice a bad thing?

Surely it is a very good thing for the Chief Justice to have greater powers over the judiciary? If the authors of the analysis do not like the Chief Justice at present1, it is no reason to deprecate his influence over the judiciary. The personal should not guide the principle. Lastly, the CCF must have had access to the best measure of the independence of the judiciary? It is the United Nations Basic Principles for the Independence of the Judiciary. It is available online and gives a check list for countries to assess their own situation. Ironically it says nothing about how judges should be appointed, other than requiring appointment on merit and without discrimination.

Perhaps this is why the CCF did not refer to it. However lawyers are trained to disclose authorities which are relevant even if they go against the lawyers’ argument, so I find the failure disappointing.

1. Generally

This is what the CCF Analysis says generally about the judiciary;

The Fiji Government Constitution structures the judicial system in the same way as the 2012 Draft and 1997 Constitution. The Chief Justice heads the Supreme Court and is a member of the High Court. The Court of Appeal is headed by a judge appointed as its President. The High Court hears most serious criminal, civil and constitutional cases. It also supervises the Magistrates Court, which handles less serious criminal and civil cases, and can determine constitutional issues that arise in such cases, subject to appeal to the High Court. Usually a case can be appealed from the High Court to the Court of Appeal and then to the Supreme Court, which has the final say in interpreting the Fiji Government Constitution.

My comment (Nazhat Shameem)

This is rather a shallow overview of the difference in the Constitutions in relation to the composition and the role of the judiciary. The analysis says nothing about the significant provisions in section 97 of the 2013 Constitution which are designed to protect the independence of the judiciary. Section 97 states;
Judicial authority and independence 97.—(1) The judicial power and authority of the State is vested in the Supreme Court, the Court of Appeal, the High Court, the Magistrates Court, and in such other courts or tribunals as are created by law. (2) The courts and all judicial officers are independent of the legislative and executive branches of Government, and are subject only to this Constitution and the law, which they must apply without fear, favour or prejudice. (3) No person may interfere with the judicial functioning of the courts, or unreasonably interfere with the administrative functioning of the courts. (4) Parliament and Cabinet, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, accessibility and effectiveness. (5) Parliament must ensure that the Judiciary has adequate financial and other resources to perform its functions and exercise its powers properly. (6) The Judiciary has control of its own budget and finances, as approved by Parliament.
This provision was not in the 1997 Constitution, section 118 simply stating;
118. The judges of the State are independent of the legislative and executive branches of government.

The other significant section is the Values section (section 1) of the 2013 Constitution which has no fewer than three values which are relevant to the judiciary. I highlight them in blue;

1. The Republic of Fiji is a sovereign democratic State founded on the values of-- (a) common and equal citizenry and national unity; (b) respect for human rights, freedom and the rule of law; (c) an independent, impartial, competent and accessible system of justice; (d) equality for all and care for the less fortunate based on the values inherent in this section and in the Bill of Rights contained in Chapter 2; (e) human dignity, respect for the individual, personal integrity and responsibility, civic involvement and mutual support; (f) good governance, including the limitation and separation of powers and other forms of checks and balances; (g) transparency and accountability; and (h) a prudent, efficient and sustainable relationship with nature.
It is a mistake to believe that the rule of law has nothing to do with the judiciary, and the separation of powers is of course everything to do with the judiciary. So is “an independent, impartial, competent and accessible system of justice”. These values were not included in the compact to the 1997 Constitution although a reference to the rule of law was in the Preamble. Thus the CCF analysis is woefully inadequate in an overview of the role of the judiciary. I come to the UN Basic Principles later in this comment.

2. The CCF Analysis goes on to say in relation to independence;

“Independence of the Judiciary “The Fiji Government Constitution fails the ‘non-negotiable’ principle of an ‘independent judiciary’. The Prime Minister and the Attorney-General have significant control over the judicial branch, including all the independent legal offices and the vitally important Judicial Services Commission. There is a risk of abuse of power to appoint, remove and alter the salaries of judges (a situation little changed from the March 2013 Draft)”.
And then, even more disappointing is this comment;
“Most modern constitutions provide for non-political appointment processes for all judicial offices. While the Chief Justice is often a political appointment, there is often some form of independent or bi-partisan selection and appointment process in law or in practice. The independence of the Chief Justice is crucial since it often exercises significant powers, especially in interpreting the Fiji Government Constitution and appointing other judges. Under the Fiji Government Constitution, however, the two highest judicial offices (Chief Justice and President of the Court of Appeal) are appointed by the Prime Minister after consultation with the Attorney-General (106). These two offices likewise determine their levels of remuneration (113) and the Prime Minister initiates the removal process by a tribunal. Security of tenure is still less for any non-citizen judge (which is common practice in Fiji), including Chief Justice or President, as they serve for maximum three year terms.”

In fact the relevant sections of the 2013 Constitution are as follows;

106.—(1) The Chief Justice and the President of the Court of Appeal are appointed by the President on the advice of the Prime Minister following consultation by the Prime Minister with the Attorney-General. (2) The Judges of the Supreme Court, the Justices of Appeal and the Judges of the High Court are appointed by the President on the recommendation of the Judicial Service Commission following consultation by it with the Attorney-General. (3) The President may, on the advice of the Prime Minister following consultation by the Prime Minister with the Attorney-General, appoint a Judge or a person who is qualified for appointment as a Judge to act as Chief Justice during any period, or during all periods, when the office of Chief Justice is vacant or when the Chief Justice is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office. (4) The President may, on the recommendation of the Judicial Services Commission following consultation by it with the Attorney-General, appoint a person to act as a Judge of the High Court during any period or during all periods, when an office of a Judge of the High Court is vacant or when a Judge is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office. (5) A person is not eligible to be appointed under subsection (4) unless he or she is qualified for appointment as a Judge.”

Also relevant on the protection of judges salaries;

113.—(1) The salaries and benefits payable to, or in respect of, a judicial officer must not be varied to the disadvantage of that judicial officer, except as part of an overall austerity reduction similarly applicable to all officers of the State. (2) The salaries and benefits payable to the Chief Justice and the President of the Court of Appeal shall be determined by the President on the advice of the Prime Minister following consultation by the Prime Minister with the Attorney-General. (3) The salaries and benefits payable to any person appointed as a Judge (other than the Chief Justice and the President of the Court of Appeal), Magistrate, Master of the High Court, the Chief Registrar or other judicial officers appointed by the Judicial Service Commission shall be determined by the Judicial Service Commission, following consultation with the Prime Minister and the Attorney-General. (4) The remuneration and benefits payable to or in respect of a judicial officer are a charge on the Consolidated Fund. (5) A judicial officer is protected from civil or criminal action for anything said or done, or omitted to be done, in the performance of a judicial function.
The 1997 Constitution stated on appointment; 132.-(1) The Chief Justice is appointed by the President on the advice of the Prime Minister following consultation by him or her with the Leader of the Opposition.

(2) The judges of the Supreme Court, the Justices of Appeal (including the President of the Court of Appeal) and the puisne judges of the High Court are appointed by the President on the recommendation of the Judicial Service Commission following consultation by it with the Minister and the sector standing committee of the House of Representatives responsible for matters relating to the administration of justice.

(3) The President may, on the recommendation of the Judicial Service Commission following consultation by it with the Minister:
(a) appoint a judge or a person who is qualified for appointment as a judge to act as Chief Justice during any period, or during all periods, when the office of Chief Justice is vacant or when the Chief Justice is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office; and (b) appoint a person to act as a puisne judge of the High Court during any period, or during all periods, when an office of puisne judge of the High Court is vacant or when a puisne judge is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office. (4) A person is not eligible to be appointed under paragraph (3)(b) unless he or she is qualified for appointment as a judge. The 1997 Constitution on salaries said; 136. The remuneration of judges must not be reduced during their terms of office.

My comment

The 1997 Constitution was silent on who fixed the judges’ salaries. In fact it was usually the government through the Ministry of Finance and Public Service Commission. The judiciary had no control over the issue of remuneration. And on terms of office the 1997 Constitution gave the Judicial Services Commission a choice under section 137 (3) and (4) to appoint a judge for life until retirement at 65, or to appoint him/her on contract for a term between 4 to 7 years. In fact most judges were appointed on contract. A comparison of the new section 106 and the old section 132 is interesting. First of all, under both Constitutions the appointment of the Chief Justice was done by the President. To suggest, as the CCF does, that it is now solely an appointment of the Prime Minister is quite wrong. Secondly, under both Constitutions the President appoints the Chief Justice on the advice of the Prime Minister.

The CCF analysis fails to highlight this. Thirdly the consultation process of the Prime Minister is now the only thing which has changed (other than the inclusion of the President of the Court of Appeal in the section 106 process). Under the 1997 Constitution it was done with the Leader of the Opposition. Under the 2013 Constitution, it will be done with the Attorney-General. That is the only difference. If the CCF had been critical of this difference, its criticism would at least be supported by fact. Currently the analysis is neither factually correct nor complete. It should be mentioned here that the UN Basic Principles on the Independence of the Judiciary is silent on the best model for the appointment of the Chief Justice. In fact it is silent on the method of appointment of all judges. It probably concedes that different countries have different systems of appointment (Australia, New Zealand and the US retaining a strong political process) and that the system of appointment has little to do with functional independence.

In short, it does not matter how you were appointed. What matters is the freedom to be independent after appointment and security of tenure. Thus the CCF’s criticism is not only factually incorrect. It is also unsupported by international principle of the judiciary. As for remuneration of judges, the CCF analysis ignores the fact that under the 1997 Constitution, there was silence on the setting of salaries, and that the executive has always decided on salary scales. The analysis also ignores the protection against reduction of judicial salaries in section 113(1) of the 2013 Constitution.

3. Other judges

The CCF Analysis says of the appointment of other judges; “The position with independence of other judges and magistrates (and senior court officials such as registrar and masters, as well as judicial department employees) is little different. They are appointed by the Judicial Services Commission (JSC), which is controlled by the Chief Justice and Attorney-General, and they have no real security of tenure.”

My comment

Wrong again. The judges are appointed by the President on the recommendation of the JSC. The magistrates are appointed by the JSC. The 1997 Constitution had the same provision except that there was a consultation process with both the Minister for Justice and the Sector Standing Committee of Parliament, for the appointment of judges. The 2013 Constitution has a consultation process only with the Attorney General.

Also wrong is the accusation that the JSC is “controlled by the Chief Justice and Attorney-General”.
How is that conclusion drawn? On the basis that the AG is consulted on judicial appointments? But that was the position under the 1997 Constitution and there was no complaint. On the basis that the Chief Justice and President of the Court of Appeal are appointments of the PM? But that is factually incorrect and in any event in relation to the CJ, the process of appointment has not changed since 1997. On the basis that the PS Justice sits on the JSC?

But under the 1997 Constitution the Chair of the PSC sat on the JSC, and he was seen as a government representative. So what has changed that suddenly the CJ and the AG are said to “control” the JSC? It appears that CCF simply does not like this AG and this CJ. Very little has changed on the appointments of judges except for the addition of a lay person on the JSC and the PS Justice who now replaces the Chair of PSC. If the process of appointing the CJ (on the PM’s advice) makes the CJ a PM’s appointment, then the same should have been said of the former Chief Justices who were appointed under the same procedure under the old Constitutions.

The same was not said. This reveals the flaw in the CCF analysis.

In relation to security of tenure, the salaries and conditions of judges and magistrates are protected under section 113, and as I have said under ( 2 ) above, locals judges must be appointed for life until they retire. This constitutes a real improvement from the 1997 Constitution, and is in accordance with international principles on security of tenure. Their removal is also protected by the tribunal procedure, and only for inability to perform or for misbehaviour under section 112. This was exactly as it was under the 1997 Constitution and protects judicial officers from arbitrary removal. Thus security of tenure is well protected under the 2013 Constitution.

4. Chief Justice’s role as Acting president

The CCF says;

“The Chief Justice will be acting President in cases of absence or incapacity of the President (88). This provision could politicise the office of Chief Justice by creating perceptions of links to executive authority. For example, even though the presidency under the Fiji Government Constitution is primarily ceremonial, Fiji’s history has shown that a President may be drawn into political controversies. Similarly, the requirement for presidential assent to laws passed by Parliament (48) could lead to the Chief Justice, acting as President, to either assent to an unpopular or controversial law, or assent to and then interest or apply a law. The Fiji Government Constitution was not accompanied by the promised explanatory report, so it is impossible to say why it did not instead provide for some other office-holder, such as the Speaker, to be designated as acting President.”

My Comment

Still clutching at straws. Looking at the new role of the President, what possible controversy will the CJ be drawn into? The job is only ceremonial, and the democratic process has taken over the role of the President. Even the state of emergency will now be controlled by Parliament. So what controversy is likely to occur? That the Fiji flag should fly at half mast at the death of a member of the British Royal family? Or that the hydrangeas should be shifted to the South Lawn at Government House? And who is preferable to act as President? The Speaker of Parliament is recommended by CCF, in which case you can see a hundred potential conflicts of interest especially in assenting to Bills just passed by Parliament. Whether the President assents to an unpopular law or the Acting President does so, the Constitution does not give the President powers to frustrate the passing of a Bill, popular or not. It is Parliament which is the authority for passing laws. If the President does not assent within 7 days, the Bill is deemed to have been assented to, under section 48. There is and was nothing controversial about that and the act of assent requires no act of deliberation by the President. As indeed was the case under the 1997 Constitution. It is also worth noting that in New Zealand, when the Governor-General is unable to act, the Chief Justice of New Zealand acts as Governor-General.
It is regrettable that so much of this analysis is fuelled by dislike for the present incumbent of the Office of the Chief Justice.

5. The Judicial Services Commission

The CCF says;

“Judicial Services Commission (JSC) The Judicial Services Commission, after consultation with the Attorney-General, appoints and disciplines all judges and magistrates other than the Chief Justice and the President of the Court of Appeal (108). Modern constitutions usually provide strong protections for the independence of bodies such as a JSC. They not only guarantee a JSC freedom from direction and control (as the Fiji Government Constitution does) but also offer protections through provision on their composition and mode of appointment of members that keep them separate from government. For example, membership is required to reflect specific interests separate from government, usually including the professional body for lawyers, and often the leader of the opposition, and a majority of JSC members are usually not appointed by government, but rather nominated by bodies associated with the interests they represent, so that the process for their appointment is independent of government.
All five JSC members are executive appointees. The Chief Justice, who is chairperson, the President of the Court of Appeal, and the Permanent Secretary responsible for justice are all appointed by the Prime Minister after consulting the Attorney-General. The Chief Justice then appoints the other two members, one of whom must be a lawyer, again after consulting the Attorney-General. The Chief Justice determines the remuneration, removal and suspension of these two members after consulting with the Attorney-General. While one appointee must be a lawyer, there is no provision for lawyers as an organized body to influence the JSC. This is a most strange omission. Because judicial appointees are normally senior legal practitioners, lawyers should have a say in appointments through their representative as an independent legal profession. This leads to another problem that there is no independent law society since its abolition by Decree 16 of 2009. Without a body to represent lawyers independently of government control, no lawyer appointed to the JSC can be seen as an independent voice in judicial appointments, discipline, removals or remuneration.”

My comment

In 20062 the English system of appointing judges changed from the old system of appointments by the Lord Chancellor. The old system was political and as it is in Australia and New Zealand depended on government approval. Having said that, the system of appointment of judges appears to differ widely from jurisdiction to jurisdiction. There seems to be little relationship between appointment and independence. The English judiciary lived for hundreds of years with a political system of appointment but generally had a reputation for fairness and impartiality. Diversity and equality in the appointment process was however, another matter, and the Judicial Appointments Commission, created as an independent body3 under the Ministry of Justice, was designed substantially to make the appointment process equal in relation to appointments of members of minority groups and of women. The Commission has 15 members who are appointed on application from members of the legal profession and the public but three members are appointed by the judiciary and must be judges. The website for the Commission says this about selection processes;

“The JAC makes significant efforts to ensure our processes are fair and all applicants receive equal treatment. Under the Constitutional Reform Act 2005, the JAC has a statutory duty to:
  • select candidates solely on merit
  • select only people of good character
  • have regard to the need to encourage diversity in the range of persons available for selection
In addition to our duty under the Constitutional Reform Act 2005, the Equality Act 2010 applied a general duty to public authorities to:
  • eliminate unlawful discrimination, harassment and victimisation
  • advance equality of opportunity between different groups
  • foster good relations between different groups”

So the underlying purpose of the Judicial Appointments Commission is obviously to remove cronyism, promote merit and ensure that there is no discrimination in the appointment process. It is a good aim. India is following suit. A Bill before the Indian Parliament is considering a model very similar to the UK JAC.4

The trouble with appointments in our past since independence was exactly that - cronyism, lack of transparency and gender and racial bias in appointments. Although Fiji is too small for a 15 member Commission, the JSC has grown from a three man (literally) Commission with the CJ, Chair of the Public Service Commission and the President of the Fiji Law Society, to a five member team with the CJ, the President of the Court of Appeal, the PS Justice, a senior practitioner with more than 15 years experience and a lay member of the public. There are two important differences in the structure and membership of the JSC. One is that more judges are on it, which is consistent with the UN Principles that judges should look after their own affairs, and the second is that a member of the public who is neither lawyer nor judge will be a member. If this member is robust about the public’s expectations of judges and the judiciary, this addition will bring a breath of fresh air to what was once an old boys’ club with secret decisions made with no guidelines. In no model has there been a political appointment on the JSC such as the Leader of the Opposition.

The idea surely is to de-politicise the process, not to politicise it. Therefore the CCF criticism is shallow in the extreme. But one cannot blame the CCF for not knowing how much of a failure the former JSC’s were, how they lacked transparency, racial and gender equity and how dysfunctional they became because of the destructive relationship which existed between the judiciary and the Law Society.

What I do criticise the CCF for, is that it ignores the philosophical and governance debate which has developed around two schools of thought – should the Chief Justice oversee judicial appointments as a measure of institutional independence or should the public, the legal profession, and politicians be consulted and involved in the process? The UK model puts the judges in a minority on the Commission but specifically excludes the politicians. The Indian model at present gives the CJ absolute authority to appoint judges free of executive control5 but is now moving towards the UK model with one notable difference – the Indian Commission will include members of Parliament.

One more issue in relation to the Law Society. The CCF says that the Law Society was removed in a 2009 abrogation. Wrong. The Legal Practitioners Decree gives the Law Society statutory status and requires the Society to register as the representative of legal practitioners. It is no longer compulsory to join the Law Society and it is not known how many financial members the Society has. However, the Law Society chose not to register and in law at least, no longer exists. Thus it has disqualified itself from membership of the JSC.

The members of the 2013 Constitution are selected either by the offices they hold or on the advice of the CJ after consulting with the AG. Under the 1997 Constitution it was the Minister for Justice who nominated members of the Independent Commissions6 (although the JSC membership had no nominated members because the three persons sat on it by virtue of the offices they held) so relegating the Minister to a consultative role only would seem to distance the JSC from direct executive interference. A person who is consulted in law, does not have to agree with a decision. He or she does not have to approve the decision. There is only a duty to consult. In fact, and in law, the government has very little say in the membership of the JSC or its functioning. The PS Justice is the only member of the executive on the Commission, and the model seems to favour greater control by the CJ and the President of the Court of Appeal over judicial affairs, in accordance with the decision of the Supreme Court of India in Advocate on Record Association v. Union of India7, but with greater transparency and accountability with a member of the public as a member and a senior member of the Bar.

It follows therefore that the criticism of the CCF above is misconceived and probably written without research on the role of Judicial Commissions and judges. It is also factually incorrect as to the appointment of the CJ and President of the Court of Appeal, historically inaccurate about the legal position of the Law Society and fails to consider why the JSC must be independent and transparent – it must ensure equality of opportunity in the appointment process, it must ensure judicial control over the affairs of the judiciary, and it must ensure accountability of judges to a process of discipline which is controlled by the judges themselves. I come to this last issue when I deal with the UN Basic Principles.

6 Administrative Independence


The CCF says;

“It is also unusual for a JSC to have control over all non-judicial officers working for the courts. Such officers would normally be treated in the same way as any other public servant. Given the executive’s control over the JSC, it raises further concerns about that control. Another concern is that the JSC, like many legal institutions established under Chapter 5 Part B (discussed below), is required to ‘provide regular updates and advice to the Attorney-General on any matter relating to its functions and responsibilities’ (104).”

My comment

This is an extraordinary submission. Is the CCF really suggesting that non-judicial appointments in the judiciary should remain in the hands of the executive? Yet controlling budget and administration is a sure way of interfering with judicial independence! Let us say that the JSC recommends the appointment of a judge. The AG doesn’t approve but he was consulted and approval is not necessary. The name goes to the President, who is of course obliged to act on the advice of the JSC under section 82 of the 2013 Constitution. The Judge is appointed, but she now needs a secretary, a clerk and chambers. There are no spare chambers. So the Chief Registrar writes to PSC (under the old system) and Ministry of Finance to create new posts, build more chambers, and fund them. PSC refuses. Ministry of Finance has no money. So the judge is either not appointed or is appointed and cannot sit. Is this the CCF’s idea of substantive judicial independence?

In the 2013 Constitution Parliament must give the judiciary enough money to function and the JSC is responsible for the efficient functioning of the judiciary. The CCF says the JSC is controlled by the executive because of the way the CJ and President of the CA are appointed. As I have said earlier, that argument does not wash. After all, what has changed from the 1997 method of appointing the CJ and why did the CCF have no problem under the 1997 model? Was the JSC controlled by the executive then, because the CJ was appointed on the advice of the PM? As for the requirement of regular updates to the A-G, the requirement is of updates. It does not permit an investigation by the AG into the judiciary nor does it presuppose a judicial acceptance of the AG’s views. The consequence of giving the judiciary almost unlimited autonomy over its own affairs, is that the tax payers may never know how their money is being spent or how efficiently the judiciary is functioning. The requirement of updates under section 104(7) is a briefing relationship seemingly unconnected with functional judicial decisions. I say seemingly, because a government determined to interfere with the judiciary may try to manipulate even the strongest judiciary. Much depends on judicial leadership to protect institutional independence and the independence of the individual judicial decision. Thus for instance, under the 1997 Constitution the JSC had to consult with the Prime Minister before making appointments to the magistracy, and had to get his consent before appointing a non-Fijian citizen to the judiciary. That was a section (section 133, 1997 Constitution) which could have been used by the executive to stack the magistracy with pro-Government magistrates. I do not believe that it was, but that possibility did exist under section 133.

7 Constitutional Applications

The CCF says;

“The Fiji Government Constitution allows only the Cabinet to seek such [constitutional] opinions, and only from the Supreme Court (91). This is a much narrower provision compared with many modern constitutions. The 1997 Constitution empowered the President, who was appointed by the Great Council of Chiefs (and so not a Government appointee) and had discretionary powers, to seek such opinions (123). Possibilities under the 2012 Draft would have been much wider still, as it allowed any person to ‘institute court proceedings alleging that any law, act or omission’ was contrary to the constitution (120).”

My comment

Wrong again. The Constitution empowers any court or tribunal to interpret and make findings in relation to any section of the Constitution. That is clear from section 7(1) of the Bill of Rights, which refers to any court, tribunal or other authority which interprets the Constitution. However Constitutional Redress applications in relation to contraventions of the Bill of Rights will only be made in the High Court under section 44 which is of course exactly the same as it was in 1997. Furthermore when Constitutional matters are argued in the subordinate courts, under section 44(5) the parties or any one of them can apply for the matter to be referred to the High Court for determination. The procedure under section 91 (5) giving Cabinet the ability to move the Supreme Court for a judicial interpretation is only a way for Cabinet to seek an opinion. It does not stop anyone else accessing any of the courts to seek Constitutional declarations and indeed the High Court Rules have been used, especially through the Order 53 Judicial Review procedure to do exactly that on many occasions. Another avenue available to anyone is the Originating Summons procedure under Order 28 or an application for an injunction seeking to stop breaches of the Constitution. Constitutional guarantees of free speech were in fact argued in an application under Order 29 for an interlocutory injunction in Mahendra Pal Chaudhry v Laisenia Qarase & Fiji Television Ltd. [2005] HBC 585/05S Ruling 14 December 2005, under the 1997 Constitution which had the same provisions. The CCF falls into error when it assumes that the Cabinet access to the Supreme Court is the only way to get a Constitutional opinion. It is not, and others who seek such interpretations whether as an application for declaratory relief or in the course of a criminal trial will have one advantage over Cabinet – they will have a right to appeal through the court system, subject to the Court of Appeal and Supreme Court Acts. As it is any person can access the courts at any time to seek declarations or other relief in the course of other cases (or on its own under the Redress provisions) and the CCF claim that access is restricted is fortunately incorrect.

8. The United Nations Principles on the Independence of the Judiciary
So, how do the sections in the 2013 Constitution measure up to international standards?
The Principles are very easy to find. They are at;
http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx with a more detailed commentary on how the Principles can be implemented at; http://legislationline.org/documents/action/popup/id/7739

I set them out in full (I exclude the Preamble) and next to each Principle I refer to the section of the 2013 Constitution which is relevant to the Principle;
Independence of the judiciary 1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. 2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. 3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law. 4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law. 5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. 6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. 7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
Freedom of expression and association 8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary. 9. Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.
Qualifications, selection and training 10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.
Conditions of service and tenure 11. The term of office of judges, their independence, security, adequate remuneration, and conditions of service, pensions and the age of retirement shall be adequately secured by law. 12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists. 13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience. 14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration. Professional secrecy and immunity 15. The judiciary shall be bound by professional secrecy with regard to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings, and shall not be compelled to testify on such matters. 16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.
Discipline, suspension and removal 17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge. 18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. 19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct. 20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

Section 97 (2) (3) (4) (5) and (6)

Section 97(2), Section 15(1) and (2) Section 16(1)(c) note also common law principles on the applicability, scope and breadth of ouster clauses Section 97 Section 15 and especially 15(10) and (11)

Section 14, and 15 Section 97 (5) Section 17 with a limitation under section 17(3) (e) for the courts and (f) for imposing restrictions on public office holders Section 20 applies to all persons on right to fair employment practices. Note the Principles only say that any method of selection should be non discriminatory and no method is recommended. Section 105 on qualification (highest competence and integrity) – salaries protected section 113 Term-lifetime until 70 (locals) 3 years for expatriates and 11 12 13 and 14 all matters for the JSC. 14 is now controlled by the judiciary section 104 (4) and (5)

Judicial immunity – section 113 (5) Section 104 (2) gives the JSC powers to investigate judicial officers. The procedure may be set out in regulations, same as section 131 (2) of 1997 Constitution Removal – section 111 and 112 same as 1997-only by tribunal process JSC decisions to discipline are all subject to judicial review section 16(1)(c)

With respect, this is a much more objective way to assess the adequacy of the 2013 Constitution in relation to the independence of the judiciary. The emotional approach adopted by the CCF, of assuming that all is tainted because of the way the Chief Justice is appointed is not helpful and is not guided by international principle. It is not helpful either to suggest that all expatriate judges should be appointed for life when a reliance on expatriate judges must be considered a stop gap measure in any jurisdiction which works toward a truly home grown judiciary staffed by Fijians at all levels. In any event a three year term for expatriate judges is still consistent with Principle 12. Nor is it helpful to state the contents of the Constitution inaccurately causing other people to be misled. Any analysis of a Constitution should be done thoughtfully, and on the basis of principle and the law. Sadly the CCF analysis appears to have been guided by personal dislike, subjectivity, and pique that the Ghai draft was not, in the result, accepted by the Fijian Government.

1
The Executive Director of the CCF and the CCF were in 2012 cited for contempt of court for publishing an article in the CCF newsletter stating that the judiciary of Fiji lacked independence. They were found guilty by Calanchini J in 2013 and sentenced to a suspended sentence and fines of $20,000 and $2000 respectively. At paragraph 7 the court said; “The Respondents were found to be guilty of contempt scandalising the court on the basis that the words as understood by the newsletter's fair minded and reasonable readers would have the effect of raising doubts in their minds that disputes between members of the public and between members of the public and Government would not be resolved by impartial and independent judges. I concluded that as a result the words had the effect of undermining the authority and integrity of the judiciary in Fiji and hence undermining public confidence in the administration of justice.”http://www.paclii.org/cgi-bin/sinodisp/fj/cases/FJHC/2013/388.html
2 The Constitutional Reform Act 2005
3
http://jac.judiciary.gov.uk/about-jac/about-jac.htm
4 http://www.thehindu.com/opinion/op-ed/fading-judicial-independence/article5272998.ece
5 Advocate on Record Association v. Union of India. (1993) Supreme Court of India
6
Section 143 (4) of the 1997 Constitution
7 See footnote 3

Fijileaks Editor: See http://crosbiew.blogspot.co.uk/2013/11/the-ccf-critique-of-2013-constitution.html

See also:
http://www.fijileaks.com/2/post/2013/09/citizens-constitutional-forums-analysis-of-the-2013-constitution-of-fiji.html
Picture
57 Comments
Fiji Law Society "Sppof"
16/11/2013 02:13:56 am

Fijileaks Editor, what really transpired at that meeting of the Judicial Services Commission which saw Anthony Gates, with the help of Nazhat Shameem, become the acting Chief Justice.

Your regular contributor Victor Lal is a great buddy (was?) of Naz and Gates for over thirty years - for how else was he able to get the highly secretive document of the JSC meeting - what is the truth?

March 06, 2007
Justice Betrayed

By Anonymous,
Special to Intelligentsiya

Yesterday’s Fiji Sun of 5 March purports to publish extracts of the minutes of the 15 January 2007 meeting of the Judicial Services Commission (“the Commission”) chaired by Justice Nazhat Shameem under Victor Lal’s byline. It was this meeting that appointed Justice Gates as Acting Chief Justice. Assuming for the sake of argument it is an accurate reflection of the proceedings, several issues need to be considered.

It was the first meeting of the Commission since the forced removal on leave of Chief Justice Fatiaki by the military on 2 January 2007. Yet according to these Minutes, Justice Shameem contented herself with dealing with the need to appoint an Acting Chief Justice in the place of Chief Justice Fatiaki. His arbitrary removal some two weeks before appears to have made little impression on her, not to mention its implications for the rule of law and the independence of the judiciary. The only passing reference she makes to the latter is that the next meeting (presumably with the ACJ present), could then decide whether to ask the CJ to return. She appeared more concerned by the need for a temporary replacement than with the illegality of the Chief Justice’s removal.

Justice Shameem justified her convening and chairing of the Commission on the basis of an opinion tendered by one Gerard McCoy QC. Justice Shameem is as familiar with the provisions of the Constitution as any constitutional lawyer. She ought to have known there was no specific provision in the Constitution authorizing her to chair the Commission meeting in the Chief Justice’s absence. The point is that nowhere in the Constitution does it enable the senior substantive Puisne Judge to preside over the Commission in the absence of the Chief Justice. McCoy’s opinion can only have reached that conclusion by either relying on the common law and/or, reading into the Constitution various inferences to achieve a strained result. For Justice Shameem to proceed in reliance on Gerard McCoy’s opinion reflected on her judgment. For she was doing so in the knowledge that her senior colleague had been removed from office by force. Nonetheless, she proceeded undeterred and apparently unconcerned by the aid and comfort she was giving the usurpers, which was sealed with a telephone call to the Interim Attorney-General.

According to these purported Minutes, Justice Shameem was supported by the President of the Fiji Law Society, Devanesh Sharma. If the minutes are to be taken at face value, he apparently never raised the issue of the Chief Justice’s removal by the military. Neither did he see it fit to question the propriety of Justice Shameem’s actions in presiding over the Commission meeting, but readily accepted the McCoy opinion justifying Justice Shameem’s participation. Mr Sharma appeared only too ready to endorse the appointment of either Justices Gates or Shameem as Acting Chief Justice. It did not appear to concern him that this had been precipitated by the actions of the military. That any endorsement of an Acting Chief Justice would amount to collaboration appears to have been lost on him.

The purported Minutes of the Judicial Services Commission meeting of 15 January 2007 make for interesting reading. For someone not aware of the setting, they seem harmless enough. However, it is this context that conveys the enormity of the Commission’s actions.

In one brief moment, before the constitutionality of events post 5 December 2006 had yet to be determined, the senior substantive Puisne Judge and the President of the Law Society agreed to an acting replacement of the illegally suspended Chief Justice, with the concurrence of the invalidly appointed Chairman of the Public Service Commission. With Justice Gates acceptance of the Acting Chief Justiceship, the complicity of some on the bench and at the bar was complete.

Source: http://intelligentsiya.blogspot.co.uk/2007/03/justice-betrayed.html

Reply
Jammy Josua
17/11/2013 11:16:01 am

Fiji Law Society 'Spoof" I must say either you are a very smart person or a cut and paste artist. But if your comment (cut and paste) is taken at the value of it's face, then I wish to hear from you about Nazhat's comment on CCF's analysis of the 2013 Constitution. How will you analyse her comments?

Reply
pointless
18/11/2013 07:46:08 pm

the point being made is that shameems have no credibility whatsoever...get it

Jolly Good
17/11/2013 06:27:02 pm

Oile Law Society poof, something saraqa you and the readers must know. It is not a crime to be friendz with anyone. Jon Apted was a truly great friendz with ex Cj Daniel Fatiaki and still is and so was Apted good friendz with Gordon Ward. Nothing wrong saraqa.
Before the judgements were released by Court, the Munro Leys people were already in access to it. Look this is nothing new. All part of the game baba.

Reply
Jammy Josua
18/11/2013 10:07:47 pm

Now pointless are also making points!

Rubal Kumar
17/11/2013 06:45:13 pm


How was the JSC minutes document "highly secretive"? Were not the proceedings audio-recorded and a transcript typed out available to the Law Society and Munro Leys in their litigation?

Why record your proceedings if you are up to no good?

The Constitution is a guiding document not an answer to all situations that will occur. McCoy's opinion followed longstanding common law principles. Nazhat Shameem as the next most senior puisne judge followed that advice and chaired the meeting, whilst declining to take on the Acting CJ's position. Ward thought he should be apppointed. He did not seem to think the Judiciary should continue headless. But many thought him to be bitterly disappointed

Reply
Anonymous
16/11/2013 02:16:01 am

Then if Nazhat Shameem (NS) says the Judiciary is Independent then the Military Junta Government (MJG) should test this proposition and remove all the decrees especially the Media Decree, bring back the Yash Ghai Draft Constitution (YGDC) 2012 and have the elections now based on YGDC 2012. We know this will not happen because the PM and AG are in control along with their supporters to protect their treasonous act in the events of December 5th 2006. The supporters will recommend the MJG Constitution 2013, like NS is doing right now with her long winded explanation. A crime was committed in December 2006 and people who committed them, will account to the people of Fiji.

Reply
Graham Davis Junior
16/11/2013 05:04:49 am

Victor Lal is also great chum with Professor Yash Ghai of Kenya

Reply
Deepak Chauhan
17/11/2013 06:33:52 pm

Victor Lal also great chum with Rajendra Pal Chaudhary and he still is a good friend of Ex Judge Willaim who used to give all inside stories of the Judiciary to Victor. I am sure Victor wont deny this

Reply
Rajesh
16/11/2013 12:47:17 pm

Nazhat and Gates are disgrace to fiji law and Constitution.
Gate gave judgment in Chandrika Prasad refer 1997 constitution.that it cannot be destroyed and is a living constitution.
Why change now bec you CJ.
We need ans from CJ/Nazhat on 1997 Constitution and April 2009 court ruling..

Reply
Anonymous
16/11/2013 03:27:29 pm

Then it goes to reason that the 1997 Constitution is still the legal document for Fiji. Rajesh, that decision is an easy one, to bring back the 1997 Constitution in order to take Fiji back to elections in September 2014. Will the advisors/facilitators to the coup 2006, Nazhat Shameem and CJ Gates agree?? Inspite of all the "long-winded-ness" that the Military Junta Constitution 2013, judiciary arm is independent, I think not because they acted outside their terms of reference. The Appeal Court decision of 10/9/09, still holds on the Independence of the 3 arms of Government (Executive, Legislator and Judiciary). Therefore, power back to the people as designed by 1997 Constitutional institutional democracy, away from the "legal elites" like Nazhat Shameem, CJ Gates and Davinesh Sharma. They committed a crime of abuse of their power and will have to answer in an Independent Court of Law under the 1997 Constitution. May God Bless Fiji to bring them to Justice as the people have suffered and do not know why they should continue to do so.

Reply
Investigator
17/11/2013 09:34:04 pm

Somebody should kick that playboy Davnesh Sharma. What this womaniser did, he first attended the meeting with that Nazhat and then he like a good boy went in another meeting with Jon Apted, Shane Sorby of Munro Leys and Tupou Draunidalo who were forcing him to tell lies about the meeting. The idiot Davnesh even got ready to lie but you should have seen the award losing face of Davnesh when he realised that the entire meeting had been recorded. Liar, Liar your pants on fire

Reply
Investigator
17/11/2013 09:48:28 pm

Interestingly poor Davenesh first got kicked by Apted and gang for taking part in the meeting with Nazhat. Then he gets kicked by Judge Ward who wanted to be the cj himself. What a Pathetic and weak guy.

anil
17/11/2013 01:17:35 am

Not sure if fijileaks will publish this but as someone who is not from the legal background, reading MS shameem's views makes sense to me. Off course there will be some who will disagree with me and that's their right.

In life, we tend to make conclusions based on the dislike of the person than the facts.

Reply
mustafa
18/11/2013 01:33:50 am

this just means that you are a gullible person, like a lot of people who have no clue of the issues and are easily sucked in by the rhetoric.

Reply
LG
17/11/2013 12:50:21 pm

Firstly, Shameem's comments are in relation to the CCF response. If they were in response to an international constitutional law expert then that might be a different proposal.

Shameem is merely commenting on comments. Any fool can do that and it appears that is the case.

Why all this public comment from this behind the scenes usurper? Will she be the next CJ?

That is the problem. After the elections the judiciary remain. The compromised weak willed despots who have done the AG's bidding will still be there. Will they hear cases against their coup partners?

Let's get a response to Shameem's (or her law students) report. She is cunning and manipulative. She could not be described as intellectual.

Is this a blatant attempt by the illegal PM and AG to bring her into the public domain with a view to making her CJ?

Let's wait and see.

Reply
Netani K
17/11/2013 01:31:51 pm

LG - nothing you can say on 2013 Constitution BUT a personal attack on a woman.

Reply
Jammy Josua
17/11/2013 02:22:55 pm

@LG - International Constitutional Law Expert? Like whom? This is Fijian Constitution and we do not need Internationale Law Expert to tell us what type of law we need on our land.

Reply
Rajesh
17/11/2013 08:21:36 pm

Nazhat and Gates were to advise President and Army they were doing wrong in 2006 by coup and elected govt .
2009 court ruling was clear and Gates/Nazhat should have advise army to fiollow the ruling but they did other wise and abrogated our 1997 constitution. cj gates held 1997 constitution supreme in his ruling in 2001 chandrika prasad case.Nazhat did put people away under 1997 constitution.
My question is who will put away these Gate/Nazhat/others in court/jail..? god knows.

Rubal Kumar
17/11/2013 09:18:46 pm

Rajesh you are showing your hatred for Gates and Nazhat from your post on this blog.
Judges do not issue advice to Governments. They speak only through their judgments on issues raised by the litigants. There is no evidence they had anything to do with the abrogation of 2009, at which time anyway they were sacked along with all the judges and magistrates. Rajesh does not understand the separation of powers doctrine. Judge Shameem did not put people away under the 1997 Constitution; she put them away if guilty because they had committed crimes under the Penal Code based on the Indian Penal Code. Nothing startling in that.

Reply
Rajesh
17/11/2013 09:53:41 pm

CJ gate/Nazhat was liked by me and people of fiji for stance they took to uphold the law and constitution in 2000 .
Why changed in 2006? I lost respect for both of them.
Why did they accept the post in this regime ..

Reply
Rubal Kumar
17/11/2013 10:05:37 pm

Oile bro/sis whoever you are, you need to do some schooling buddy. Those two people you mentioning in your post were Judges in 2000. They never resigned but kept court open. They did the same in 2006. Now you explain to me how did they change?

No Immunity
17/11/2013 10:32:00 pm

Rubal Kumar lives in a fantasy land. He is probably too young to know what democracy looks like. There are no separation of powers in Fiji at present. It is arbitrary rule.

The simple fact is this. There are immunity provisions in the 2013 Constitution. It is not personal. It is not a matter of whether you hate Shameem or Gates or not. They have a case to answer. They should not be protected after a full and frank (no pun intended)analysis and investigation.

All of the current regime need to be subjected to the rule of law at some stage.

What does Shameem sat about the immunity provisions?

Reply
Rubal Kumar
18/11/2013 12:36:16 am

She said she Will only talk about JUDICIARY . Why don't you write about immunity?

Reply
supota
18/11/2013 07:55:30 pm

Rubaball, your supot for the madam is based on your assumption that judges do not give advice to government..that is perfectly correct except in Fiji, that is not the practise..the madam and others have done exactly the opposite that is why the judiciary in fiji will never be independent until this malpractise underhanded legal minds like the madam are put to bed and sent to jail.

Reply
Court Registrar
18/11/2013 12:56:39 am

Deepak and others - this Victor Lal dude had been friends with all rival Judges - whether local or foreign - as his hacked e-mails between Russell Hunter and him revealed - incidentally hacked by the help of Chaudhrys and distributed world-wide by Chauhdrys chum Nikhil Singh

It seems to be Mdam was behind the drafting of the new present regime Constitution, for why else take time out to reply to Coz blog?

Reply
Headteacher
18/11/2013 10:51:06 am

Court Registrar, I have been a teacher for thirty years and retired last year as a headteacher in Tailevu. But still whenever there is anything against School System, I take out time to reply/write in favour of the Ministry I served for thirty years.
If this Madam is replying whatever is said against the Judiciary, should not be taken as you are assuming. Like I feel proud to have been part of education system in Fiji, she must be also proud of the Judiciary she served as a Judge. So Court Registrar I would suggest you put your assumption away and think straight UNLESS you have something personal against this lady.
Secondly, the lady is being attacked because CCF has been caught lying about the Constitution and she has put up a very straight forward argument against their lie. Atleast she had the guts to put up the argument with her real name. Some people shoot on Blogs with fake names.
I would have done the same for the system I served. Hats off lady.

Reply
Rubal Kumar
18/11/2013 11:50:35 am

I do not see any reason why the bloggers in this blog are making personal attcks and trying to bring nonsense arguements which has no credibility at all. Someone said Shameem has been behind the drafting of Constitution and that is why she is replying on Croz's Blog, what type of logic is this? All those who sees the lies and reply to the same are behind drafting of the Constitution?

If you read the judgments you will see the issues put up by the lawyers for decision were different. There was no change in the interpretation of the law. It is not for the judge to make up the issues he or she wants to deal with for reasons of personal agenda. The Judiciary is separate from the political government and must go on through thick and thin. You do not accept a position under the regime . You serve the nation.

Just because you don't like the coach does that mean you refuse to act as referee?

Reply
a weary-go-round and round and round
18/11/2013 01:00:54 pm

"Self-serving and cheap" best describes this ongoing distasteful judicial spat....... simply disgusting.

Reply
Rubal Kumar
18/11/2013 03:47:44 pm

a weary-go-round and round and round - your comments are just like your name. Keep on going round and round and round. Nothing to contribute to support CCF's analysis of the 2013 Constitution BUT a total personal attack.

And you say you not part of it?

Reply
a weary-go-round and round and round
18/11/2013 04:01:02 pm

@ RK's "And you say you not part of it?"

Absolutely.

Love that you love my name - it best describes this thread, don't you agree. Round and round the weary go round - what justice requires is a level playing field. Or don't you agree?

NO IMMUNITY
18/11/2013 01:06:51 pm

Who are you Kumar? Where have you been hiding?

The illegal AG and illegal PM have had cases prosecuted at their instigation. They have informed the judges as to the outcome. I have heard these things first hand.

In one instance the Acting Chief Registrar said to the Chief Justice and I quote "I have spoken with the AG and he wants the case to go ahead. I have spoken to Calanchini and he will be with us".

What does that mean? Come on Kumar, you are on the inside. Tell us what you know.

The current judiciary is below sub-standard. They do what Gates tells them to do. Many have been recruited from a jurisdiction that does not keep the powers separated (Sri Lanka). These judges do what the political arm (AG) tells them to do just like in Sri Lanka..

Do you want to know how to determine who is a skilful and ethical judge in Fiji? That is easy, there are none. The honest ones left or were pushed out.

YOU DO NOT SERVE THE NATION IN FIJI AS A MEMBER OF THE JUDICIARY. YOU DO NOT HAVE TENURE TO BEGIN WITH. YOU SERVE THE CHIEF JUSTICE AND THE ATTORNEY GENERAL OR YOUR CONTRACT GETS TERMINATED.

When the truth comes out as to Shameem's role in this illegal military takeover you may be well surprised.

I look forward to reading her critique on the immunity provisions. She and Gates were the review team on the AG's final draft. You knew that already Kumar as you are on the inside.


It is hard to be non-emotive when this woman has conspired with the illegal regime and is attempting to prevent her own prosecution and theirs.

Let Shameem and her cohorts answer to the law as it stands instead of trying to re-write it. If what they have done is "justifiable" then they have nothing to fear.

I suppose Kumar you want immunity for the military and police who have acted outside of the law. You may need the law one day and it may not be there for you. Why? because you chose to abandon the law when it suited you. Your children may not be as skilful as you are at kissing the ass of powerful people.

Reply
Rubal Kumar
18/11/2013 01:24:22 pm

Graham Leung, Jone Mandraiwiwi, Richard Naidu, Florence Fenton, Shane Sorby, Jon Apted, J. J.Udit, Ex Judges who have been kicked out because of their political interest - whoever you are contributing here, very clearly show your hatred for Gates and Nazhat. You keep on focusing that they are part of 2006 takeover AND yes without any evidence.
Get a life buddy.

Reply
a weary-go-round and round and round
18/11/2013 03:15:10 pm

@ RK, that's a very interesting comment "You keep on focusing that they are part of 2006 takeover AND yes without any evidence."

That sounds very much like NS' "snigger" that I once heard her saying out loud.

This thread reads like an attempt to play victim, gauge reaction and win sympathy from the public. A waste of time.

What Fiji really needs is a Truth, Lessons Learnt and Reconciliation process following closely on the heels of a transparent and corrupt-free national election.

This vicious tit-for-tat coup cycle must stop for coup de'tat is NEVER the answer to our nation's problems as NS and iCJ are now witnessing much to their detriment despite an armed rogue military covering their backs.

They need to cast their pride and selfishness aside, instead of trying to save their tattered reputations whilst the regime conveniently controls public opinion, expression and space. Now that can't be a-level-playing-field, can it?

Fiji can and will survive without them. No one is indispensable.

As NS aptly says: "The personal should not guide the principle."

Yes, that is a sword that cuts both ways, so be very careful how you wield it Madam.

a weary-go-round and round and round
18/11/2013 03:26:35 pm

Btw, I'm not one of the people you've listed or was part of the judiciary. Do you have to be to hold an opinion on the sorry situation that our country is in?

Everyone has been affected in a real way - one way or another, by Fiji's coups. For me personally, it didn't begin with this latest one in Dec2006.

Investigator
18/11/2013 10:06:11 pm

That's the weakness of the blogs. Its all noise and no substance. Allegations and no evidence. Hatred spat out from a hiding hole. C'mon Mr Mongoose which case did the AG tell the Magistrate how he was to decide?

Reply
abc
19/11/2013 09:39:17 pm

well said...

Reply
Fiji Sun Judicial Reader
18/11/2013 01:10:25 pm

Fiji judiciary is a fragile institution because of coup culture – (Part Five)
February 20, 2009 | Filed under: Fiji News | Posted by: newsroom

Written By : VICTOR LAL. Like previous coups, the 2006 coup once again brought to the surface the seething tensions within the judiciary to breaking point.
A judicial power struggle erupted when, on 4 January 2007, a meeting was held in the Judges’ Common Room in Suva, which was chaired by Justice Gordon Ward, the then president of the Fiji Court of Appeal.
Some judges were absent, including Justice Anthony Gates, who was out of the country.
At this meeting, there was discussion about the absence of the Chief Justice Daniel Fatiaki and the legal and constitutional basis for it. The previous day, on 3 January 2007, the military had requested Fatiaki to go on leave to allow for an inquiry into numerous complaints about the judiciary.
He was informed that if he refused to go on leave Commodore Frank Bainimarama would remove him from office immediately. In these circumstances, Fatiaki reportedly agreed to go on leave, only to re-emerge on 18 January 2007 in his office to claim that he was still the Chief Justice of Fiji.
He later left his chambers, and recently resigned with a $275,000 payout.
The summary of the minutes of the 4 January 2007 meeting, written down by Justice Ward from memory and circulated to his fellow judges, reveals that it was agreed that, “The Courts should continue to sit and to be administered in the same manner as before the military takeover on 5 December 2006 and the Chief Justice’s agreement to go on leave”.
Their duty as judges was to ensure the Courts continued to function for the public. Justice Ward had however expressed concern at the meeting that the military was making orders in relation to the internal administration of justice.
Concern was also expressed at the manner of Justice Fatiaki’s removal, with one local judge suggesting that they should state their opinion that this step was unconstitutional and was concerned that a failure to do so could leave the public with the view that the judiciary had accepted it.
At the meeting, two Court of Appeal judges discussed possible methods of appointing an Acting Chief Justice, for which they said there was a need. In the course of the meeting Justice Ward suggested that the Judicial Services Commission be bypassed and that if executive power was returned to President Iloilo, it may be possible for him (the President) to make an acting appointment in order to overcome this impasse, and on the basis of a consensus of judges.
It was agreed that a further meeting be held to include the absent judges on Monday the 15 January 2007. The meeting ended at 12.30. At 3pm Commodore Bainimarama announced that he had returned executive powers to Ratu Iloilo, and Bainimarama was then sworn in as the interim Prime Minister of the country.
On 5 January 2007 the acting Chief Registrar was called to the Military Strategic Command and told that the interim arrangements of the Chief Justice to appoint Justice Ward to administer the judiciary were to be disregarded.
Another judge told a fellow judge the next day that the meeting of the judges of 4 January 2007 was in breach of the Memorandum of Understanding agreed to by the High Court judges in 2002, and that in his opinion the judges had learnt nothing from the crisis of 2000.
He told his fellow judges that he had spoken to Justices Ward and Gerard Winter and had warned them to refrain from expressing any views about the legality or legitimacy of the new political order in Fiji. As a result of the strong views expressed by the judge, there were no further meetings of the judges.
On 15 January 2007 the Interim Attorney-General Aiyaz Sayed-Khaiyum called Justice Nazhat Shameem saying that he was calling her, as she was the most senior substantive puisne judge of the High Court at the time after the CJ. He advised her that he had a discussion with the then President of the Fiji Law Society Davenesh Sharma about the need to appoint acting CJ.
The rest is history, as I have pointed out in a previous article (5 march 2007), and based on the minutes of the Judicial Services Commission, how Justice Gates came to be appointed in his current position.
Justice Shameem’s critics would later claim that she was neither Chief Justice nor Acting Chief Justice and was not therefore qualified to chair the JSC meeting or to vote, a charge which I have disputed in another column. In any event, as president of the Fiji Court of Appeal, Justice Ward could not have also constitutionally acted as CJ following the coup. Even Justice Davendra Pathik was ruled out, according to the minutes of the JSC meeting: “The person who has been with us the longest is Mr Justice Pathik. But he’s 76 and he’s not a substantive judge, he’s acting, what they call a temporary judge.
The advice from Mr (name blacked out) is that he’s

Reply
Fiji Sun Judicial Reader
18/11/2013 01:15:02 pm

The advice from Mr (name blacked out) is that he’s (Justice Pathik) expressly disqualified by the Constitution from being a substantive puisne judge.
And so his opinion is an acting judge cannot be the Acting CJ. He’s also well over retiring age, the retiring age for High Court judges is 65, retiring age for Court of Appeal judges is 70.” On 16 January 2007 Justice Shameem sent a letter to the President stating, inter alia, that “…the Chief Justice of Fiji, the Honourable Daniel Fatiaki has voluntarily gone on leave pending a judicial inquiry…In accordance with section 132(3)(a) of the Constitution the Commission therefore recommends that Your Excellency appoint the Honourable Justice Anthony Harold Cumberland Thomas Gates as the Acting Chief Justice of Fiji”.
At the time the letter was sent to the President, no judicial inquiry had been commenced against Fatiaki. On 16 January 2007 Justice Gates was sworn in as the acting Chief Justice of Fiji. On 18 January 2007 a “Presidential Instrument of Notice of Suspension of Chief Justice upon Establishment of a Tribunal To Investigative Serious Allegations of Misbehaviour Made Against Him” was published in the Extraordinary Republic of Fiji Islands Government Gazette.
It was in his acting capacity as Chief Justice that Justice Gates was now called upon to direct the administration of justice, and even to discipline those judges who seemed not to be “toeing the line”. He had to remind Justice Roger Coventry, who left the bench after the coup, that it would be disastrous to the judiciary, to the legal system and the national economy, if no appointments were made to the judiciary. Coventry was told he belonged to the old school of thought.
Meanwhile, one of the judges, Justice Bryne, was asked to run the Fiji Court of Appeal but Coventry was allegedly “furious” as he thought he should have been chosen. Coventry then began to write letters to different judges, claiming that the roistering of judges did anything other than further marginalize him.
He was also deeply concerned, he claimed, that there were formal legal challenges to the appointments of many judges who were sitting on the FCA. Justice Coventry argued that unless and until the certainty over the legality of their appointments was resolved then they should not sit in the FCA.
He was told that the FCA would now become more representative of Fiji’s diverse communities, with more local women judges because that was what the Constitution required under s134. On 10 December 2007 Justice Gates wrote to Coventry: “Re: Your observations on the Court of Appeal. I refer to your further memo of 7.12.07 on this subject.
I think you have forgotten that all judges of the High Court sit with equal power and jurisdiction. While experience might lend gravitas, it does not confer a greater jurisdiction, nor does the lack of judicial experience take back the appointed power.
All judges of the High Court who are members of the Court of Appeal by reason of their appointments, will be invited to sit on cases in the Court of Appeal.
This used to be the practice in Queensland”
One of the judges was allegedly told by Coventry that he would not agree to his junior writing a separate judgment from him. Justice Gates reminded Coventry in the same letter above: “There is English authority for the need for senior judges to accept that their decisions may be reviewed by judges who are their juniors.” He also pointed out to Coventry (with a cc to Justice Bryne): “Who is selected and for which case is a responsibility given to Bryne J., who as you know, is looking after the Court of Appeal for the time being. I take no part in the running of the Court of Appeal, nor would I presently be justified to sit in it.”
On 13 December 2007 Justice Gates again took Coventry to task, for holding an informal meeting of judges on 11 December 2007, and branded him as mischievous, disruptive and insubordinate: “I refer to your memorandum of 11.12.07.
You do not reveal that only three judges attended, yourself, Singh J and Jitoko J.
You had no authority to call an official meeting of all the judges.
I notice on the Notes you have circulated to all the judges however, you have called a meeting of all the judges.
You had no right to do so. You called it under the guise of an informal meeting and then tried to make it look official by publishing these minutes. They do not represent the views of the judiciary. You are merely being mischievous, disruptive, and since you carry no authority, insubordinate.
When you are assigned administrative duties you may carry them out. If you have not been assigned them, as here, then desist.”
Matters came to a boil when Coventry sent a memorandum to Justice Bryne dated 12 December 2007 and annexed documents addressed to Justice Gates asking for response on Justice Jocelyn Scott. Coventry had

Reply
Fiji Democracy Now
18/11/2013 01:17:23 pm

Script for a coup: Victor Lal’s latest is timely


Victor Lal has revealed the contents of two documents prepared somewhere within RFMF circles which provided the script for the coup. All of it was far above the Bainimarama brain, but he was eventually to read some of his key lines from these documents. According to the script, the aim was to hold free and fair elections under an Interim Government. No-one serving in the Interim Government would be able to stand in the elections. The three brains identified behind this plot are Aziz, Khaiyum and Vaniqi.

Coup 4.5 May 24, 2012 Bainimarama’s behind-the-scenes backers were in the judiciary

Kai Viti
18/11/2013 04:34:43 pm

Madarachods
I am a Kai Viti and I am just sick and tired of all of you and your puppets farking up my country.
WHEN ARE YOU PEOPLE GONNA LEAVE? I AM SICK AND TIRED OF ALL YOU AND YOUR BULLSHIT!

Reply
a weary-go-round and round and round
18/11/2013 05:26:59 pm

I'm sick and tired of scoundrels disguised as patriots who will not hesitate to use "race" as their last dying card. Once again, we see here the twins of pride and selfishness at play...

Now go ponder over Albert Camus wise words, “I should like to be able to love my country and still love justice.”

Reply
academia
18/11/2013 08:20:01 pm

all this academic bravadary and still the madam fails to answer the most pertinent....why is this decree legal as a constitution but not the 1997 constitution as upheld by the court of appeal????
victor can u get her to answer that please??? or some of her her supotas to do that???? Rubaball Kumar seems to be well knowledgeable to do that?
vinaka

Reply
Robert Yee
18/11/2013 10:15:22 pm

who the fuck asked that question and who the fuck you are to expect an answer? No decree discussed here only lies of CCF.

Reply
dewf
19/11/2013 09:49:33 pm

dicky bird yee, can u read??? this bk constitution is nothing more than a decree thrushed on the people..go google and find out the definition of constitution then u might start to understand that a country's constitution is that very special law by the people for the people that reigns supreme over all other laws.
this so called bk constitution does not in any way fit into that definition...so jack ur backside mate and suck up shameems asses

KAI INDIA
18/11/2013 10:04:21 pm

HEY KAIBITI, WE ARE NOT LEAVING ....YOU ARE ,SO GET PACKING AND GO PLAY RUGBY SOMEWHERE IN AFRICA....YOU MADARCHOD, LEAVE MY COUNTRY ALONE...KAI INDIA RULES !!!!

Reply
Balck Sugar
19/11/2013 01:06:56 pm

The words of the great English judge Lord Denning seems to have deserted: “For all judges on extra judicial issues, silence is the best option.”

Reply
white sugar
19/11/2013 02:49:06 pm

she is and never was judge material, she cooked and fed her bosses for promotions, the famous dinners at Nazhat Shameems house where all the judges and minister have eaten many a times for favours

Reply
Brown Sugar
19/11/2013 02:51:13 pm

It looks like Ballu Khan reporting here.

Raw Sugar
19/11/2013 03:02:02 pm

Jealousy at it's worse.

sugarcane
19/11/2013 09:54:29 pm

shameem did not know those wise words black sugar. she had an opinion on anything and everything...judicial or extra or otherwise...she just cant help herself.

Reply
Balck Sugar
19/11/2013 03:10:04 pm

White Sugar is a failed applicant for Judge's post - no wonder the jealous ass is throwing smoke.

Reply
ujjar chini
20/11/2013 12:15:57 am

white sugar never cooked or fed for favours, or used dpp position for dubious means.......yunnus rashid's name comes to mind, berenado vunibobo also comes to mind and NBF saga never got resolved or people charged because of favours for family members,,,,curry favour

Reply
Kai Viti
20/11/2013 04:37:49 am

kai india
madarachod
remember only driti and ului arrested but hundreds in the know ,,,so they still out there with missing weapons. This academic discussion is no use to you people arguing here because only the bullets will be talking soon........
run run run but the end is near

Reply
Fijileaks Editor
20/11/2013 09:49:58 am

Kai Viti and others - no abusive language, please. Loloma mada yani

Reply
Soldier
20/11/2013 04:40:36 am

eh kai india
recent army recruits 100% kai viti,,,,,,how come no kai india? oh yeah just like second world war ,,,,lamu sona to lay down lives for the nation

Reply
Processed sugar.
23/11/2013 03:52:28 pm

“Brown sugar, white sugar, black sugar raw sugar” and may I add “processed sugar” to sum up the discussion so far. Well said "weary -go-round and round and round and dewf.
Why did NS, CJ Gates and Shyster Shameen and their “supotas” not use the 1997 Immunity provision as a legal way forward in 2006 to remain “legal”??
Because of their power base and you know how this corrupts as eloquently argued by Lord Denning (black sugar) many moons ago.
But it rears its ugly head again now branded and positioned by the “might of madam in the local context"
Further, when you read the CCF Analysis 2013 (Sept 2013) then Tables 1- 4 to sum up what needs to be amended in the Fiji Government Constitution (FGC) before December 31st and I especially want to focus on Table 2 on VB/ASK’s list of Non-Negotiable Principles, the Constitution assented to by the President 6th September 2013 was put together by the same “elite few” who planned the illegal takeover of the elected government in the events that led to December 5th 2006 and wrote the deposed Prime Minister Lasenia Qarase’s conviction. They are still the same people in control of the Military Regime today. Any person with common sense given by God can see that same people with the same position wielding the same illegal brand message. Their illegal business model is all linked.
Accordingly, in this context where a Constitution is defined as a charter of fundamental laws by the people of the people for the people, the “supotas of the elite few” on this blog can never change the fundamental structural DNA no matter how hard you try with your so called “knowledge and skills” as you lack substance, character, truth, trust and moral balance. These are the intangibles of justice.
In contrast, the tangibles of injustice from the risks of illegally removing an elected government have out stripped the benefits as claimed initially by the "elite VB/ASK stooges" to remove a corrupt government. In the meantime, smoke continues and where there is smoke there is “fire”.
Driti is now telling his story for the history books.
ASK’s family company is under the microscope along with his networks to big business.
It always comes back to big business and who funded the 2006 coup and who benefits?????
Processed sugar.

Reply



Leave a Reply.

    editor@fijileaks.com

    ARCHIVES

    September 2020
    August 2020
    July 2020
    June 2020
    December 2018
    November 2018
    October 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    February 2014
    January 2014
    December 2013
    November 2013
    October 2013
    September 2013
    August 2013
    July 2013
    June 2013
    May 2013
    April 2013
    March 2013
    February 2013
    January 2013
    December 2012
    October 2012
    September 2012
    Picture
    Picture