Tuesday, March 06, 2007

Justice Gates as Acting CJ

How Gates reached the top

By VICTOR LAL - www.sun.com.fj - 5 March 2007

As the fate of the judiciary precariously hung in the balance following the suspension of the Chief Justice Daniel Fatiaki from official duties, a meeting of the Judicial Services Commission was called at short notice in the chambers of the senior substantive High Court judge Justice Nazhat Shameem at 4pm on 15 January 2007. Present were her, the president of the Fiji Law Society, Devanesh Sharma, and the chairman of the Public Service Commission Rishi Ram.
The purpose of this meeting, the discussions that took place for the next half an hour, and the resolution that resulted in the appointment of Justice Anthony Gates as acting Chief Justice, is contained in the minutes of that meeting titled “Judicial Services Commission Meeting held on 15/1/07, Justice Nazhat Shameem’s Chambers at 4.00pm”. Earlier in the morning, Justice Shameem had already discussed the purpose of the meeting with Mr Sharma by telephone, and in welcoming Mr Sharma and Mr Ram to her chambers at 4pm; she thanked them for making themselves available at short notice. The purpose of the meeting was the appointment of acting CJ due to the absence of the head of the judiciary - Mr Fatiaki. Madam Shameem, as the minutes of the meeting refer to her, began by stating as follows: “We need to have some emergency measures to try and move the judiciary along. Now, what’s happened is that under the Constitution the Judicial Services Commission is made up of three people. I know Mr Sharma is well aware of this and I don’t need to brief him again as we discussed the matter on the telephone this morning.”
Basically, Justice Shameem told the two, the JSC is chaired by the Chief Justice, and is made up of the President of the Law Society and the Chairman of the Public Service Commission. Now, she said, one suggestion was that “the two of you could make appointments to the judiciary without a Chief Justice but there is a difficulty with that because you would not be consulting members of the judiciary”. According to the legal advice the judiciary had been given that would be quite wrong and “we should have somebody from the judiciary there”. The legal advice that the judiciary had received was that in the absence of the Chief Justice, the senior substantive puisne judge should chair the JSC. So when it was suggested to Justice Shameem that morning, as she disclosed to Mr Sharma and Mr Ram, that she should do that, she discussed the matter with Mr Sharma, and he agreed that really “we should have got to meet and recommend whatever appointment is necessary”. Justice Shameem told the two as follows: “The judiciary is really in a pretty difficult situation at the moment, and I have to say that one of the saddest things about the kind of situation is that our judges may fall out over the issue of judicial leadership. It is important that we preserve judicial collegiality and independence, so that is the reason why we’ve decided to have this meeting, and the only thing holding it up today is whether we have a Chairman of the PSC.
“This morning we were told it was Mr Hector Hatch, and then we were told there was no Chairman, and then we were told by the AG’s chambers and by Mr Sharma that Mr Ram’s appointment was imminent.” She told the two, as she had already explained to them, “I don’t want to take any part in making decisions about appointments of any other judges or the extension of contracts of any other judges, or even on the basis of the CJ’s absence”. Justice Shameem said it may well be in the next meeting with whoever was the acting CJ, “you may decide that you would like to ask the CJ to come back, and that is entirely within your powers as the JSC so this is just a stop-gap holding decision until such time as we have a substantive CJ”. She told them that she thought the logical person to be made acting CJ would have been the President of the Court of Appeal because he did seem to be the president of the highest court they had at the moment in the absence of the CJ. Unfortunately, her attention had been drawn to s.127(a) of the Constitution which says the President of the Court of Appeal cannot be the CJ and the CJ cannot be the President of the Court of Appeal. She then pointed out as follows: “Mr Sharma agrees that such an appointment is not possible.”
In other words, the law prevented them. So what was the alternative, Justice Shameem asked, and suggested as follows: “So what I suggest, and please correct me Mr Sharma, especially you, (I’m very aware that you’re counsel) and I’m usually the judge, so this is one time you can stop me if I’m wrong) I suggest that we simply start at the top, with the most senior High Court judge, and let’s just discuss each judge, as a commission.” The person who had been with the judiciary for the longest was Justice Pathik. But he’s 76 and he’s not a substantive judge; he is acting, what they call a temporary judge. The advice from Mr (the minutes have blacked out his identity) was that Mr Pathik was expressly disqualified by the Constitution from being a substantive puisne judge. And so an acting judge could not be the acting CJ. Mr Pathik’s also well over retiring age. The next most senior judge for consideration for the acting CJ’s post was Justice Shameem but as she had already explained to both Mr Sharma and Mr Ram, “I’m not interested in this particular job in any capacity either acting or substantive. I’m never likely to be which is why I’ve agreed to chair this meeting”. The next person was Mr Justice Anthony Gates, and the next person down from Jutsice Gates was Mr Justice Jitoko, and the next person was Mr Justice Connors. So what Justice Shameem did in the midst of all this was to ask Justice Gates what were his views about that, to which he said that he would be honoured if indeed the commission came to that view. “That’s all the information that I have that I’ve gathered since morning, and we are open to whatever discussion we should have,” she told the two of them.
At this moment Mr Sharma replied as follows: “Madam, I will go back to my council very briefly to discuss one of the things I told them that we would support you. Would it be possible that you are prepared to in fact reconsider your decision because logically you are the most senior puisne judge? “The fact of the matter is I would rather still ask you to consider that appointment because you’ve got ranking. I know for a fact you don’t feel that you want to accept this position but it is proper that you should. I wish to take it back to my council because my council might come back and say that we would like to ask Justice Shameem to accept.” In reply, Justice Shameem said: “They can certainly ask and that would be a great honour to hear your request.” Mr Sharma: “I personally would prefer that if we go down the ranking and keep to the chronology of our judges that you should seriously think about taking up the appointment.” Justice Shameem thanked Mr Sharma but once again categorically replied that, “I have never been interested in that position with or without a military coup. I’ve explained this very carefully also to Mr Justice Gates, when I asked him. He was very uncomfortable because I’m the senior judge and he asked me to consider it. However I told him that one of the greatest pleasures in my life is going to court and hearing the stories of ordinary people. And I don’t want to stop doing that and I certainly don’t want to do any administrative job at all, certainly at this stage of my career, and I’m simply not interested, Mr Sharma. I can understand if the council would like you to say that I am honoured to hear it.”
According to the minutes, Mr Sharma again intervened: “As president, it is my view specifically that as the most senior puisne judge you ought to be given the post and I know the reasons why you feel you’re not interested, but I think the offer should be put to you.” Justice Shameem again thanked Mr Sharma, to which he said, “Would you like to reconsider it?” Justice Shameem: “No, this is one decision I am quite certain about. Otherwise I would not have agreed to chair this meeting as it would have been quite improper had I also been a contender.” In reply, Mr Sharma told her that he and Mr Ram had a lot of time for Mr Justice Gates, because actually he thought Mr Gates had good administrative skills too. “So I personally don’t have any problems,” Mr Sharma said with Mr Gates. “He says he’s happy to take up the position and I think we should now seriously think about Justice Gates.” Replying, Justice Shameem said if Justice Gates had said no, she would have gone to Justice Jitoko, but Justice Gates had already said that he would be honoured, and that was alright with her. She said Justice Gates was more concerned about the seniority aspect because “you know the judiciary is very seniority conscious, but I did explain that I really was not going to consider that”.
At this point she turned to Mr Ram: “How do you feel about that Mr Ram?” In reply, Mr Ram said he would go along with Mr Sharma, and support Justice Gates’ appointment. Justice Shameem again turned to Mr Sharma, asking him whether he would like to talk to his council, or did he think that this was something they would fully support. Mr Sharma told Justice Shameem that he was sure that at the end of the day, “I have looked at Mr (identity blacked out in the minutes) opinion too and I think that’s a solid opinion. All we are doing is basically going down the rank of puisne judges and if he’s happy to take on the challenge then I think that we should go ahead and inform the Minister for Justice”. Justice Shameem than suggested to Mr Sharma that once the appointment was made, and assuming that the A-G agreed, then what could be done was perhaps for Mr Sharma to approach the acting CJ, in this case Justice Gates, and ask for another JSC meeting to discuss the matter of the CJ. “We need the JSC to be functioning,” she stressed.
Why? There was the matter of the Court of Appeal judges’ contracts coming to an end, and of course the March session, and some of the judges’ appointments were lapsing in January. “This is why I was told that this meeting was so crucial that we have to at least get the administration running and then from there the commission can continue to sit,” Justice Shameem said. Her only question was “is this proper, lawful and constitutional thing to do and now I’m satisfied of that”. Mr Sharma replied that he also had worked with the legal adviser, whose identity has been blacked out in the minutes. “He’s reasoning is perfectly sound, so I think that we can take it from here that we could recommend to the A-G the Minister of Justice in his capacity that let’s go ahead and finalise this so that we have our next meeting as quickly as possible.” According to the minutes, the Attorney-General was then consulted in the presence of the commission on the telephone. He agreed to the appointment of Justice Gates as acting CJ after the process of reasoning of the JSC was explained to him. Justice Shameem thanked Mr Sharma and Mr Ram for attending the meeting. She said, “I will inform His Excellency the President tomorrow by letter”. The meeting concluded at 4.30pm.

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