Professor 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.
Chief Justice Anthony Gates handing the new regime drafted Fiji Constitution 2013 to President Epeli Nailatikau
Nazhat 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.
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:
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
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
- 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
