Friday, August 15, 2008

Expat Judge denounces Fiji military regime

Another expat denounces Fiji military regime
Chris Merritt, Legal affairs editor - Friday, August 15, 2008
ANOTHER expatriate judge has denounced Fiji's military-backed Government for making it impossible for judges to have "judicial effect".
New Zealand barrister Gerard Winter, who left the Fiji High Court in January, said he would be in breach of his original oath of office if he had accepted a renewed commission from the military-backed regime.
Mr Winter said he "entirely supported" the views of Australia's incoming chief justice Robert French, who also chose not to renew his commission in Fiji.
"I too would not accept a renewed appointment from the unelected military Government as the risk to the maintenance of the rule of law was too great a price to pay," Mr Winter said.
Justice French used almost identical words in May when he revealed he would not be accepted a renewed commission in Fiji.
"Accepting appointment to the highest court of that country by a military Government, the lawfulness of which is under significant challenge, comes at too high a price," Justice French had said.
Mr Winter, who was a member of the Fiji High Court before the 2006 military coup, said his decision to leave the court was a personal one.
He had reasoned that he had a duty to remain in office after the coup and uphold the rule of law so long as he was confident that his decisions had judicial effect.
"I decided to stay throughout 2007 for as long as I had judicial effect.
"I also then decided that I could not renew my warrant in 2008 if the military regime was still in power as to do so would run contrary to my original oath of office," he said.
Mr Winter's statement comes soon after Victoria's Legal Services Commissioner Victoria Marles dismissed a complaint against Victorian barrister Jocelynne Scutt for accepting judicial office from Fiji's military-backed regime.
In a letter published in today's Legal Affairs section, Ms Marles writes that she did not have authority to determine whether the state's lawyers were allowed to work "in countries that lack democratic legitimacy".
"My role as Legal Services Commissioner is to investigate complaints about lawyers and I have to do this in accordance with the law," she writes.
"Whether behaviour amounts to misconduct is determined by the legal test for professional misconduct prescribed by the Legal Profession Act 2004 and also by previous cases.
"My role is simply to determine whether the facts of any complaint satisfy these tests and whether a disciplinary tribunal is likely to find misconduct.
"Conduct which may provoke community disapproval does not necessarily meet these tests," Ms Marles writes.
When contacted in her chambers in Fiji, Dr Scutt said this week she had nothing to say about the affair.
Mr Winter, who is now a barrister in Wellington, said the military-backed regime had ascribed to itself the power to promulgate "unnecessary but convenient legislation".
"They have promulgated many convenient laws and regulations to suit their revolutionary cause -- including on occasion legislating away the courts' judgments.
"In so doing, they undermine the rule of law by eroding confidence in the fairness, predictability and transparency of justice," Mr Winter said.
Many judges in Fiji had been "wrestling with the decision of what their obligation was after a coup", he said.
He felt unable to renew his warrant as a judge because he felt the Government's actions meant he had "lost judicial effect and the Chief Justice had been removed from office by soldiers".
* The Australian Online

No comments: