Sunday, March 04, 2007

Fiji's Constitutional Dilemma


Source: www.intelligentsiyablogspot.com

PROFESSOR JAMES CRAWFORD is Professor of International Law, at the University of Cambridge.

Constitutional Forum vs President

I AM instructed that even though there have been threats by the Commander to abrogate the Fijian Constitution, the Commander has not purported to do so. As there has been no attempt to establish a “new legal order”, there is no scope for the application of the doctrine of effectiveness, as outlined by the Court of Appeal in Prasad.

In any event, if the Fijian Constitution was not - as the Court of Appeal held in Prasad - abrogated by the events of the earlier coup, it certainly has not been abrogated now. It follows that, subject to the possible application of the doctrine of necessity (discussed below), the lawfulness of any actions is to be assessed by reference to the 1997 Constitution of Fiji and any laws in force under it.

In fact the relevant provisions are to be found in the Constitution itself. 19. Section 118 of the Constitution provides that: The judges of the State are independent of the legislative and executive branches of government.

Section 131 of the Constitution establishes a Judicial Services Commission in the following terms: Republic of Fiji Islands v Prasad [2001] FJCA 2 (1 March 2001)
(1) This section establishes a Judicial Service Commission consisting of: (a) the Chief Justice who is to be its chairperson ; (b) the chairperson of the Public Service Commission ; and (c) the person who is from time to time the President of the Fiji Law Society.
(2) In addition to the functions conferred on it elsewhere in this Constitution, the Judicial Service Commission may investigate complaints about judges and judicial officers of courts subordinate to the High Court and may take disciplinary action against them.
(3) The members of the Judicial Services Commission are entitled to such allowances as the Parliament fixes.

Section 132 of the Constitution deals with the appointment of judges:
(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 inister 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.

Section 138 of the Constitution deals with the removal of judges:
(1) A judge may be removed from office for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and may not otherwise be removed.
(2) Removal of a judge from office must be by the President pursuant to subsection 6
(3) If the President considers that the question of removing a judge from office ought to be investigated, then: (a) the President appoints : (i) in the case of alleged misbehaviour—a tribunal, consisting of a chairperson and not less than 2 other members, selected by the President from among persons who hold or have held high judicial office in Fiji or in another country prescribed by the Parliament; and (ii) in the case of alleged inability to perform the functions or office - (a) a medical board, consisting of a chairperson and 2 other members, each of whom is a qualified medical practitioner; (b) the tribunal or medical board inquires into the matter and furnishes a written report of the facts to the President and advises the President whether or not the judge should be removed from office ; and (c) if the tribunal or medical board advises that the judge should be removed from office, the President may remove the judge from office.
(4) If the question of removing a judge from office has been referred to a tribunal or medical board under subsection (3), the President may suspend the judge from office and may, at any time, revoke that suspension. (5) The suspension of the judge from office ceases to have effect if the tribunal or medical board advises the President that the judge should not be removed from office. Question 1: The initial displacement of Justice Fatiaki The first question I am asked is whether the circumstances in which Justice Fatiaki “agreed” to go on leave on 3 January 2007 (as set out in paragraph 7 above) were lawful under the Constitution. It is obvious they were not. For a judge to be confronted by members of the military and given instructions to agree to go on leave or be “terminated” is an obvious violation of the Constitution, in particular section 118.

If there are credible allegations against a judge, section 138 provides the applicable procedure, which only the President can trigger . On 3 January 2007 the President had been removed; even after his reinstatement, no action was taken under section 138 until 18 January 2007.

Thus at the time of the Judicial Services ommission’s purported meeting of 15 January 2007, the Chief Justice could not be considered as lawfully on leave. Question 2: The meeting of Judicial Services Commission 25. Section 131 of the Constitution establishes the Judicial Services Commission and provides that it “consists” of certain specified persons. However, it does not stipulate a quorum or require all members to take part in every decision of the Commission, and there may be circumstances in which it is necessary for a meeting to be held where the Chief Justice is unavailable. In such circumstances the Commission may validly meet and transact business even in the absence of the Chief Justice. This appears from section 132(3)(a) of the Constitution, which allows the appointment of an acting Chief Justice “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” (emphasis added).

In my opinion these conditions may be triggered by an actual state of affairs, and are not dependent upon the characterisation of the state of affairs as lawful or not. For example if the Chief Justice was being unlawfully detained by the military, it might be necessary for the Commission to make an acting appointment - although of course any action taken by the Commission with a view to furthering an unlawful coup (as distinct from maintaining as far as possible the lawful functioning of the courts pending the Chief Justice’s release) would itself be unlawful.

Thus it would have been necessary for the other members of the Judicial Services Commission, constituted under Section 131 of the Constitution, to ask whether the Chief Justice was genuinely unable to be present at their meeting for any reason. The Commission could not simply take the word of the military on the point; it would need to satisfy itself that there really was no prospect of the Chief Justice attending. It is not, however, necessary to discuss the motives of the Judicial Services Commission at its meeting of 15 January 2007 or whether they asked themselves the relevant question under section 131. Even if the Commission was seeking simply to maintain continuity, the decision had to be taken by the remaining persons who under section 131 constitute the Commission. Justice Shameem was neither Chief Justice nor Acting Chief Justice and was not therefore qualified to chair the meeting or to vote.

Under the Constitution it is not open for a person who is not a member of the Judicial Services Commission to sit in the place of an absent member. In this respect it is relevant to note section 173(7) of the Constitution, which provides that: The validity of the transaction of business of a commission is not affected if someone who was not entitled to do so took part in the proceedings. It is striking that this section does not apply to the Judicial Services Commission, which is not one of the commissions to which, pursuant to section 169, Part 4 of the Constitution applies.

The fact that section 173 does not apply to the Judicial Services Commission reinforces the conclusion that it was not open for Justice Shameem to take part in the proceedings in the place of the Chief Justice. I also note that questions have been raised as to the validity of the appointment chairperson of the Public Service Commission. I understand that Commander Bainimarama sacked the previous chairperson of the Public Service Commission and that a new chairperson was subsequently appointed by the President.

In the circumstances where the meeting of 15 January 2007 was already invalidly constituted by reason of the participation of Justice Shameem, it is not necessary to consider the elevance of this additional issue.

30. Two arguments might be raised in support of the validity of the purported recommendation of 15 January 2007, notwithstanding that the Judicial Services Commission was improperly constituted. First, it might be argued that the doctrine of necessity could operate to validate the appointment of the Acting Chief Justice. According to the decision of the Court of Appeal in Prasad: The doctrine of necessity enables those in de facto control, such as the military, to respond to and deal with a sudden and stark crisis in circumstances which has not been provided for in the written Constitution or where the emergency powers machinery in that Constitution was inadequate for the occasion. Prasad (Unreported, Fiji Court of Appeal, Casey J (Presiding), Barker Kapi, Ward and Handley JJA, 1 March 2001).

31. The Court of Appeal did not need to decide on the exact limits of the doctrine of necessity. The Court did however cite the following formulation given by Haynes P in Mitchell v Director of Public Prosecutions in the Court of Appeal of Grenada: I would lay down the requisite conditions to be that: (i) an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the State; (ii) there must be no other course of action reasonably available; (iii) any such action must be reasonably necessary in the interest of peace, order, and good government ; but it must not do more than is necessary or legislate beyond that; (iv) it must not impair the just rights of citizens under the Constitution; (v) it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such. It is for this court to pronounce on the validity (if so) of any unconstitu­tional action on the basis of necessity, after determining as questions of fact, whether or not the above conditions exist. But it is for the party requiring the Court to do so to ensure that proof of this is on the record. Such validation will not be a once-for-all validation, so to speak, it will be a temporary one, being effective only during the existence of the necessity. If and when this ends, the right constitutional steps must be taken forthwith, that is, within a reasonable time,

32. Leaving aside the issue of whether an “imperative necessity” existed in the present case, it can not be said that in the circumstances there was “no other course of action reasonably available”. A reasonably available and constitutionally valid course of action was open to the Judicial Services Commission. In particular, the remaining two members of the Commission could have met to appoint an Acting Chief Justice, if satisfied that the Chief Justice was in truth “unable to perform the functions of office”.

33. Secondly, it may be that the Attorney General sought to “substantially comply” with the terms of section 131 of the Constitution by requesting Justice Shameem, the “Senior Substantive Puisne Judge” of the High Court, to chair the meeting in the place of the Chief Justice. But it is the Constitution, Mitchell v Director of Public Prosecutions [1986] LRC (Const) not the Attorney-General, which determines the composition of the Commission, and (as noted above) there was no impossibility for the remaining two members of the Commission to meet, even if the Commission had formed the view that the Chief Justice really was “unable” to be present. Nor can Justice Shameem’s presence be ignored: she chaired the meeting and conveyed its recommendation to the President, even though she was not qualified to be present. In my opinion, her role meant that there was substantial non-compliance with section 131. 8

34. For these reasons, in my opinion, the recommendation conveyed by Justice Shameem on 16 January 2007 was invalid. Question 3: Validity of the appointment of the Acting Chief Justice

35. It follows from this that the President did not appoint the Acting Chief Justice on the basis of a valid “recommendation of the Judicial Service Commission”, within the meaning of section 132(3) of the Constitution.

36. This conclusion is supported by the decision of the Justice Gates himself in Koroi v Commissioner of Inland Revenue. Following the 2000 coup in Fiji, the Interim Civilian Government enacted a decree that revoked certain exemptions from VAT which had been granted by the previous government . Justice Gates declared the decree to be unlawful on the basis that the appointment of the Prime Minister and Cabinet was unlawful and therefore the caretaker government had no power to advise the President to pass the decree.

37. Evidently a failure to comply with constitutional requirements can invalidate judicial appointments. In Adams v Adams Sir Jocelyn Simon P considered the validity of the appointment of a Rhodesian judge. In 1965 the Rhodesian government declared independence and purported to enact a new constitution (the 1965 Constitution). In the earlier case of Madzimbamuto the Privy Council had decided that the only lawful constitution of Rhodesia was that which existed prior to the declaration of independence (the 1961/1964 Constitution).” While the judge in question was personally qualified under the 1961/1964 Constitution, his appointment was invalid because he had not taken the oath of office required by the 1961/1964 Constitution ; instead he had taken an oath under the 1965 Constitution.

38. On the other hand, it is the case that Judge Gates in his apparent capacity as Acting Chief Justice is a de facto officer. The Court of Appeal in Prasad recognised that the following statement by Lord Pearce in Madzimbamuto represents the law of Fiji: I accept the existente of the principle that acts done by those actually in control without lawful validity may be recognised as valid or acted upon by the courts, with certain limitations namely (a) so far as they are directed to and reasonably required for ordinary orderly running of the State, and (b) so far as they do not impair the rights of citizens under the lawful Constitution, and (c) so far as they are not intended to and do not in fact directly help the usurpation.

39. In my opinion the validity of the actions of the Justice Gates, acting in his de facto capacity as Acting Chief Justice, are to be assessed by this standard.


Professor James Crawford, University of Cambridge

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