Saturday, October 25, 2008

Constitution and the judiciary

Constitution and the judiciary
Kamal Iyer - October 25, 2008

"There are a few institutions which are vital to the maintenance of democracy and the rule of law. They constitute the life breath of the democratic way of life and the supremacy of law. Drain away this life breath and democracy will perish, the rule of law will be at an end. Inevitably, authoritarianism will take their place. History shows that the first step which a ruler takes when he assumes authoritarian power is to impair the integrity and independence of these institutions.
"The judiciary is one such institution on which rests the noble edifice of democracy and the rule of law. It is to the judiciary that is entrusted the task of keeping every organ of the State within the limits of power conferred upon it by the Constitution and the laws and thereby making the rule of law meaningful and effective". Former Chief Justice of India, Justice P.N Bhagwati speaking in January 1989, in Caracas on the subject of "The Pressures and Obstacles to the Independence of the Judiciary".
This excerpt of his speech was quoted by former President of Fiji Court of Appeal Justice Sir Moti Tikaram in a paper present to the 10th South Pacific Judicial Conference at the Fijian Resort on Yanuca Island from May 23-28, 1993. Justice Sir Moti, who was then the Vice-President of Fiji Court of Appeal, presented a paper titled "Independence of the Judiciary and Public Accountability".
The above observation by the former CJ of India and re-iterated by Justice Sir Moti in May 1993 is significant in the aftermath of the judgment of October 9, 2008 in the case Qarase and Others v Bainimarama and Others, where the Acting Chief Justice Anthony Gates, Justice Devendra Pathik and Justice John Byrne nullified the proceedings filed by Laisenia Qarase and his SDL Party in the Suva High Court. The three judges ruled that President Ratu Josefa Iloilovatu Uluivuda legitimised the overthrow of Mr Qarase's SDL/Labour Multi-Party Government on December 5, 2006, when he addressed the nation on January 4, 2007 after executive authority was handed back to him by Commodore Bainimarama. They ruled that the President used his prerogative authority under unlimited reserve powers in Sections 85, 86 and 87 of the Constitution, derived from the British monarchy.
While the Constitution doesn't contain any provisions about the President having reserve powers, the judges ruled that the supreme law of the land did not expressly remove the powers passed onto Commonwealth countries from the British monarchy.
But this isn't the first time that a court presided over by Justice Gates has given its own interpretation to the provisions of the 1997 Constitution. In the 2001 General Elections, National Federation Party candidate Prem Singh was the lone winner for his party, coming out victorious in the Nadi Open Constituency. He was later appointed as Leader of the Opposition after Fiji Labour Party Leader Mahendra Chaudhry declined to accept Ratu Josefa's appointment as Opposition Leader saying his party was part of Government (the FLP had instituted Court proceedings against Mr Qarase for violating Section 99(5) of the Constitution making the formation of a Multi-Party Cabinet mandatory as parties that win 10% or more of seats in the 71 Member Lower House are entitled to be invited to be part of Cabinet).
The FLP's losing candidate, Krishna Prasad (as well as other FLP losers in other constituencies) filed actions before the High Court, which is constitutionally the Court of Disputed Returns looking at election petitions (Section 73(1) of the Constitution). On February 8, 2002, Justice Gates, based at the High Court at Lautoka, ruled in favour of Mr Prasad. He said ticks below the line on a ballot paper were valid votes, contrary to Section 75 of the Electoral Act (1998). The Electoral Act clearly stipulates that ticks are valid votes when placed in boxes above the line on a ballot paper (which has two parts) alongside the symbol of a party. Below the line votes are only valid if numbered (like 1, 2, 3, 4...) to indicate a voter's preference. These are prerequisites of a valid vote under the Alternative Voting System.
But Justice Gates ruled that ticks below the line were valid, and when they were calculated, Mr Prasad had more votes than Mr Singh.
He then ruled that Mr Singh ceased to be a member of the House of Representatives.
Mr Singh pursued legal redress by taking the case before the Court of Appeal and ultimately to the Supreme Court seeking leave to appeal Justice Gates' decision.
The three member Supreme Court delivered its ruling on August 29, 2002. (FJSC 2; CBV0001.2202S). Court president, Justice Sir Thomas Eichelbaum, Justice Bryan Beaumont and Justice Dame Sian Elias ruled that Justice Gates had erred in his ruling. They said Justice Gates had incorrectly interpreted the Electoral Act. The first two judges granted leave to Mr Singh to appeal but at the same time dismissed the appeal. This is because Section 73(7) of the Constitution stipulates that the determination of a Court of Disputed Returns is final. On the other hand Justice Elias ruled that Mr Singh had been validly elected because Justice Gates had erred. Therefore, Mr Singh lost the case by a decision of 2-1 as natural justice could not apply because the Constitution is the supreme law, even though Justice Gates committed an error. But the Supreme Court decision meant that cases filed by failed FLP candidates like Lavenia Padarath, John Ali and Joeli Kalou were thrown out of the court.
The second judgment of Justice Gates to be overturned by a Superior Court was a ruling he made on July 17, 2003. A case was filed by the National Farmers Union and its former president Marika Silimaibau (NFU general secretary is M P Chaudhry) before Justice Gates, seeking the High Court to invalidate the Sugar Industry (Amendment) Decree of 1992.
In early 1992 the then interim regime headed by Ratu Sir Kamisese Mara promulgated this Decree to reduce the size of the elected Sugar Cane Growers Council from 111 councillors - three per sector (when it was initially established in 1985) - to 46 Councillors. 38 were to be elected - one from each Sector - and 8 to be nominated by the Minister for Agriculture who was responsible for the sugar industry.
From March 1992 until September 2000 the NFU controlled the Growers Council. In September 2000, the then general secretary of Fiji Cane Growers Association Jagannath Sami was appointed as SCGC chief executive, replacing secondary school teacher Grish Maharaj who was in control for eight years. He was appointed by NFU following its landslide win in the March 1992 SCGC polls after the NFU dominated board sacked a very competent chief executive Hardip Singh on accusations of insubordination.
In the 2001 SCGC elections, while NFU won more seats than FCGA, no organisation won an outright majority to control the 11-member board of directors. Given this scenario, the case's timing was unusual because the NFU did not challenge the validity of the decree for some 10 years until then. On July 19, 2003 Justice Gates ruled that the decree to reduce the size of the council was invalid and of no legal effect.
If this was a final ruling, it would have meant that the size of SCGC would be 114 councillors - 3 elected by farmers from each of the 38 sectors.
The State appealed Justice Gates' ruling.
The Fiji Court of Appeal heard the case on March 17, 2004 and delivered its judgment two days later on March 19 because SCGC elections were due to be held in April 2004. The three Justices of Appeal namely Sheppard, Tompkins and Ellis (Civil Appeal No. ABU0050 Of 2003S) ruled that the decree promulgated on February 6, 1992 was validated as an Act of Parliament by the 1997 Constitution. The three Justices of Appeal overturned Justice Gate's decision by saying Section 195 of the Constitution stated which decrees were repealed and which decrees were transitional - confirmed as Acts or law under the Constitution. They ruled that by virtue of Section 195(2) of the Constitution, the decree continued in force. What is baffling is this - if a decree that has been validated by the Constitution can be ruled as being invalid by Justice Gates, how can the now Acting CJ and his brother judges rule that the President can effectively rule through promulgations, proclamations and decrees until the next Parliament sits to look at their validity?
Therefore, who judges the judges? In May 1993 Justice Sir Moti Tikaram quoted Thomas Jefferson while dwelling on the issue of public accountability, "Man is not to be trusted for life, if secured against all liability to account".
In his paper Justice Sir Moti, while emphasising the independence quoted former British Prime Minister Sir Winston Churchill who said, "The principle of the complete independence of the judiciary from the executive is the foundation of many things in our island life... the judge has not only to do justice between man and man. He also ... has to do justice between the citizens and the State. He has to ensure that the administration conforms with the law and to adjudicate upon the legality of the exercise by the executive of its power."

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