Wednesday, February 18, 2009

Fiji judiciary is a fragile institution because of coup culture - (Part Four)

Fiji judiciary is a fragile institution because of coup culture - (Part Four)

www.sun.com.fj - 2/18/2009

In the course of legal arguments the Supreme Court heard that Justice Michael Scott’s alleged hostility towards Justice Nazhat Shameem resulted in his refusing to attend a judges’ retreat in 2003.
In his opinion the “three judges, Byrne, Shameem and Gates JJ were guilty of grave misconduct’” which resulted in the judiciary in general, and himself in particular, having been brought into disrepute. He had canvassed that perhaps on retirement he might launch legal action seeking declaratory relief and damages from them.
In the previous column I recalled the judgment of Justice Kenneth Handley who had ruled against the summons on behalf of Justice Shameem that the Supreme Court had been inappropriately and improperly constituted in that case, because one of the judges, Justice Scott, was disqualified from sitting because of his actual or ostensible bias.
Justice Shameem being dissatisfied with Justice Handley’s direction, then filed an application to the Supreme Court to review that decision.
What follows next is contained in the Supreme Court judgment of Justices Mark Weinberg, Keith Mason and John von Doussa in Vakalalabure v State [2006] FJSC 3; CAV0003U.2004S (1 May 2006). The application to review was supported by affidavit sworn by Justice Shameem on 28 October 2005. To that affidavit, she exhibited the correspondence that had passed between the Chief Justice Daniel Fatiaki and herself after she discovered that Justice Scott had sat on the appeal.
She went on to state that on 19 October 2005, she had instructed Chen Bunn Young of Young & Associates, solicitors of Lautoka, to file an application to intervene in the proceedings. She said that she had been informed by Mr Young that the summons and her earlier affidavit had been lodged with the Supreme Court Registry by Young’s Suva agents on that same day.
The affidavit then concluded: “I am further informed by my counsel and verily believe that on Friday 21 October 2005 (at the request of Shiu Sami, Clerk on behalf of the Registrar of the Supreme Court), my counsel thinking that he was attending an informal meeting with the Honourable Chief Justice and Justice Handley found himself in the chambers of Justice Handley alone who thereafter informed counsel that he would deliver a ruling. On the same day my counsel wrote a letter to Justice Handley and copied to the Chief Justice which letter was exchanged simultaneously with a receipt of ruling titled ‘Direction’ by Justice Handley.”
Justice Shameem annexed to this affidavit a copy of her counsel’s letter dated 21 October 2005. That letter purported to record the circumstances of Young’s meeting with Justice Handley in his Lordship’s chambers earlier that morning.
In substance, Young claimed that he had been told that the meeting would be “informal”, and that he need not bring with him any legal materials. He said that he had been taken by surprise when Justice Handley had referred to “making a ruling”. He claimed that he had not regarded the meeting as a “hearing”, and that he had only attended as a courtesy, in response to a request from the Chief Justice and Justice Handley. In effect, the tenor of his letter was to challenge the validity of Justice Handley’s “direction” on the basis that Justice Shameem had been denied natural justice.
Her case was heard before Justices Weinberg, Mason and von Doussa. She was represented by Young, P. Joseph and Gerard McCoy - later the State’s QC in the Qarase-Bainimarama case. It was submitted on her behalf that the direction given by Justice Handley to the Registrar was, relevantly, an “order” within the meaning of that expression in s.122(5) of the Supreme Court Act. Her application was for leave to intervene, which Justice Handley had summarily rejected. It was not an appeal from Justice Handley’s decision.
On behalf of Justice Shameem, it was submitted that Justice Scott was automatically disqualified from sitting on the appeal from Justice Shameem because of his “past and ongoing implacable hostility and animosity” towards her.
That submission was supported by reference to one matter, in particular, that emerged from the affidavit sworn by Justice Shameem on 19 October 2005. It concerned a letter dated 29 January 2003 written by Justice Scott to the Chief Justice in which he advised that he would not be attending a judges’ retreat scheduled for February 2003. He explained that the events of May 2000, and subsequent months, had resulted in a very serious split in the judiciary. He said that in his opinion three judges, Byrne, Shameem and Gates “were guilty of grave misconduct” which resulted in the judiciary in general, and himself in particular, having been brought into disrepute.
He said that as a result he had had no social dealings for the past two years with the three judges. He canvassed various options. One of these options was to commence legal proceedings seeking declaratory relief and damages. He said that given his position as a judge of the High Court, he did not think it would be appropriate to initiate legal proceedings at that stage. He added that he would not find himself so constrained if he were to exercise his option to retire in April 2004.
But, as Justices Weinberg, Mason and von Doussa noted, “Scott JA did not spell out in his letter precisely the cause of action that he might rely upon if he initiated any legal proceedings. It may reasonably be inferred that he had in mind a claim for defamation. The fact remains, however, that Scott JA did not retire in April 2004, and has not instituted any legal proceedings against Shameem J or either of the other two named judges”. Counsel for Justice Shameem submitted that it was of fundamental importance to the rule of law that public confidence in the independence and impartiality of the courts be maintained. It was essential to that end that members of the judiciary act, at all times, without bias, for or against any party. Not only must they be impartial, they must be seen to be impartial.
It was submitted that it was impossible for Justice Scott, having threatened to sue Justice Shameem, and having never withdrawn that threat, to be regarded as unbiased in relation to any appeal from one of her judgments.
Her counsel submitted that Justice Handley had erred in summarily directing that her application for leave to intervene be rejected on the basis that she lacked standing in this matter. They submitted that Justice Handley took an unduly stringent view of what an applicant for leave to intervene had to show in order to be granted intervener status.
Justice Shameem’s legal counsel submitted that in Fiji the rules governing standing were broader, and more flexible, than Justice Handley had appreciated. They submitted that she had standing, in the matter, under an orthodox application of those rules, by reason of several important factors.
The first of these factors was the unique position in which Justice Shameem found herself. She alone (apart from Justice Scott) was in a position to appreciate the full extent of his hostility towards her. Others may have had an inkling of the difficulties between them, but not the full extent of the problem. In addition, she alone had access to the correspondence addressed to her, and other material necessary to establish the malice that she claimed he bore towards her.
The second factor was the specific duty that she had, by virtue of her judicial oath, to uphold the Constitution. It was noted that judicial officers alone, among those whose oaths are prescribed in the Constitution, are required, in terms, to swear or affirm to uphold the Constitution. In other words, she had a duty, under the Constitution, to bring to the attention of the Supreme Court any matter that would undermine public confidence in the judiciary if it were not properly addressed.
The third factor was the lack of any alternative means by which Justice Scott’s unwillingness to recuse himself could be formally addressed by the Court. It was plain, from the fact that Justice Shameem’s initial letter to the Chief Justice had not resulted in Justice Scott disqualifying himself, that he had no intention of doing so. Although the matter might have been dealt with in other ways, such as by being drawn to the attention of the Attorney-General, and by providing him with whatever evidence there was to support the claim of actual bias, it was submitted that the course adopted by Justice Shameem, of seeking leave to intervene in this proceeding, had been entirely appropriate.
In the end, the three Supreme Court judges ruled: “In our view, irrespective of whether Handley J applied too narrow a test of standing when he directed the Registrar to reject Shameem J’s application, as we think he did, Shameem J does not have standing, under the common law, as we understand it to be, to intervene in this appeal. If we were wrong about that, we would nonetheless refuse leave to intervene as a matter of discretion.”
In the final analysis, there was always the residual power, as exercised by the House of Lords in Pinochet No.2, to overturn a decision of a Court that included a judge who sat in a matter, when he ought not to have done so, said the three judges.
The hostility that existed between Justices Scott and Shameem, the three judges noted, appeared to be reciprocal, and “is now a matter of public record. It is known that their difficulties go back at least as far as the tumultuous events of May 2000. Their differences are obviously both real and personal. It is a matter of regret that there appears to be little that can be done to persuade them to reconcile”.
While accepting Justice Shameem’s contention that she was better placed than either Ratu Rakuita Vakalalabure or the Director of Public Prosecutions, to appreciate the level of hostility that she regarded Justice Scott as manifesting towards her, and that she was in a better position to place evidence before the Court that might support her claim of actual bias on his part, “neither of these facts, if true, gives her ‘a special interest’ in the proceeding of a kind that would warrant granting leave to intervene”.
According to the three judges: “She is no more bound, by virtue of that position, to uphold the Constitution, than is any other citizen of this country, irrespective of whether that person has taken an oath to do so.”
The very fact that Justice Shameem had herself expressed hostility towards Justice Scott meant that a cloud hovered over her own objectivity in this unfortunate matter, said Justices Weinberg, Mason and von Doussa. “Courts of final appeal that permit intervention generally look to satisfy themselves that the prospective intervener can contribute information or submissions beyond the ken of the parties. In the present case information has been drawn fully to the attention of the Supreme Court, as presently constituted. Suffice it to say, it does not present an overwhelming case. “The material emanating from Scott JA is hardly current, and it requires a leap to proceed from a finding that Scott JA does not get on with Shameem J (whether with, or without, good cause) to a finding that his Lordship would be false to his judicial oath,” said the three judges.
The ruling effectively deprived us of any further disclosures of the hostility that was generated by the 2000 coup.
TO BE CONTINUED
The views expressed are those of Victor Lal and not of the Fiji Sun.

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