Role of Civil Society in ensuring that there is an independent Judiciary – Transparency International Workshop

Postdate: 07-12-2007

Role of Civil Society in ensuring that there is an independent Judiciary – Transparency International Workshop
Speech by Rev Yabaki, CCF

Introduction – What is an NGO?

A non-governmental organisation is any organisation outside the government and business. The phrase ‘non-governmental’ suggests organisations are either government or they are not. Its a term as we know which is widely used; in areas such as UN circles for instance. The term is used to make the distinction between the First sector, which is government, and the Second sector, which is industry, and includes agriculture, manufacturing and tourism

The Third Sector is more easily defined in what it is not (rather than what it is): it is not part of the government and is not primarily motivated by the need to make a profit. The Third Sector has different philosophy and worldview from the other two. It is the community non-profit sector. A variation on this is the concept of social profit. This is more positive that ‘non profit’ it also highlights the social well being arising from this sector’s work: non-governmental organisation.

The Christian Churches are seen as the world’s oldest continuous NGOs. They began as NGOs on the fringes of the Roman Empire and were heavily persecuted by the government.

In Fiji while organisations like the Fiji Women’s Crisis Centre (FWCC) and Fiji Women‘s Rights Movement   (FWRM) were created in the 1980s to deal with increasing domestic violence, sexual offences and discrimination against women in all areas of life, other rights-based NGOs have only been formed just over a decade ago. WAC began in 1993. CCF began in 1991, while Femlink’ and ECREA started just a few years ago.

CCF is the only NGO that was created directly in response to the 1987 coup, specifically to address issues such as racism, understanding about the constitution, democracy and human rights. CCF therefore educates and advocates for the Constitution, democracy, human rights and multiculturalism in Fiji. Vision of equality, justice and peace; respect the rule of law, constitution that guarantees democracy and human rights. We work with politicians, political parties, women, youth, grassroots and marginalised groups, community leaders and NGOs across the region.

CCF’s post 2000 experience

In the aftermath of the 2000 coup, there was a reluctance by the government to complete prosecutions against 2000 coup perpetrators and the government, instead was rewarding coup-related MPs and showing open sympathy and complicity with coup perpetrators. Government also increased salaries, increased VAT and introduced controversial bills such as RTU, Qoliqoli, Broadcast. Organisations working in the area of social justice, such as ECREA and WAC were finding that their poor, marginalised communities were getting worse off under the SDL government. CCF’s own experience was the government was uncooperative and not willing to consult and engage in dialogue and discussions.

CCF’s work involved elections monitoring and review, submissions and advocacy on controversial bills of parliament and the national budget, advocacy for the formation of the multi-party government, landowners and tenants workshops, constitution and human rights workshops in villages and settlements around Fiji, legal action against the unsubstantiated early release from prison of former Vice-President Ratu Jope Seniloli, engagement with the military to encourage de-politicisation and respect for the rule of law, conferences and seminars on religion and human rights to build religious tolerance, annual lectures on constitutional matters.

Following the 1987 and 2000 coups, there was a loss in confidence in the judiciary by members of the public. CCF tested the legal system by engaging in court cases to challenge issues of legality, justice and correct procedure. These were difficult and arduous activities, but very necessary for the country. In this presentation, I will outline the experience of CCF regarding the Chandrika Prasad court case and the judiciary. I will also highlight some cases of loss of confidence in the judiciary.

The Chandrika Prasad Case

On 4 July 2000, Chandrika Prasad, an Indo-Fijian farmer whose house was looted and crops destroyed during unrest in the wake of the Speight coup, sought a court order declaring that the attempt to abolish the Constitution had failed. The case was heard in the Lautoka High Court by Justice Anthony Gates on 24 August 2000. On 15 November 2000, he held that the Constitution was still in force and that the Parliament, as constituted prior to the events of May 2000, still held office. The interim civilian government appealed against this decision. The full Court of Appeal heard the case in February 2001. In a judgment delivered on 1 March 2001, the Court of Appeal first questioned its jurisdiction to decide whether the Constitution had been abrogated and, giving a positive answer, declared that the doctrine of necessity could not in this case justify the abrogation of the Constitution nor validate the installation of the interim civilian government. The Court then examined the doctrine of effectiveness, and decided that the interim government must prove it was exercising control over the State with the acquiescence of the people. The Court concluded that this had not been proved, and that the 1997 Constitution therefore remained the supreme law of Fiji. The Parliament had not been lawfully dissolved but only prorogued for six months. The office of President had become vacant when Ratu Mara resigned on 15 December 2000.

The International Bar Association observed the trial (19-22 February 2001) and reported that the proceedings were open, fair and independent.

The interim civilian government gave an undertaking to the Court of Appeal before its decision that it “would accept the decision of the Court on whether the 1997 Constitution is still in existence”. The lawful course, following the Court of Appeal decision, would have been to recall the Parliament elected in May 1999 as soon as possible. However, the interim government instead opted to dissolve the Parliament and call national elections. Laisenia Qarase was appointed as “caretaker” Prime Minister. Many people believed that the dissolution of Parliament without first recalling it was unconstitutional, and a non-governmental organisation called the Citizens’ Constitutional Forum (CCF) challenged the decision in court. Justice Michael Scott in the High Court held on 11 July 2001 that the actions of the President and interim civilian government were largely justified by necessity, however. The CCF appealed to the Court of Appeal, but the appeal was not heard until after the elections of August-September 2001, by which time the issues were moot.

The Judiciary

The independence of the judiciary is enshrined in the 1997 Constitution under section 118, which states that “The judges of the State are independent of the legislative and executive branches of government.” Section 117 provides that the judicial power of the State is vested in the High Court, the Court of Appeal, the Supreme Court and such other courts as may be created by law. The Supreme Court is the final appellate court in civil and criminal matters. It has exclusive jurisdiction to hear and determine appeals from all final judgments of the Court of Appeal, with leave of the Court of Appeal or special leave of the Supreme Court. The Supreme Court also has advisory jurisdiction, exercisable on a reference from the President. The Court of Appeal has jurisdiction to hear and determine appeals from judgments of the High Court, subject to the Constitution and requirements prescribed by Parliament. Appeals in matters arising under the Constitution or involving its interpretation are as of right.

A person who has been convicted on trial before the High Court may appeal to the Court of Appeal against conviction on any ground involving only a question of law, or otherwise with leave of the Court of Appeal. Under Section 120, the High Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings. It has also original jurisdiction in any matter arising under the Constitution or involving its interpretation. The High Court has appellate jurisdiction concerning decisions of Magistrates Courts. The High Court consists of the Chief Justice and a minimum of 15 puisne judges. Magistrates Courts are divided into three classes and have limited civil and criminal jurisdiction. They may refer any question of law to the High Court.

Post-Coup Developments

During the May 2000 coup, military Commander Bainimarama assumed executive authority and began to rule by decree. Following the purported abrogation of the Constitution, Chief Justice Sir Timoci Tuivaga was involved in drafting an Administration of Justice Decree to re-constitute the judiciary. The Fiji Law Society received information that the Chief Justice had offered advice to the military government and wrote to him on 9 June 2000 to express its concern. In his response, Sir Timoci confirmed his involvement in drafting the Decree and justified his actions by arguing that he “took the opportunity that had presented itself to ensure that the Administration of Justice Decree of the military government took cognisance of the freedom and independence of the courts to maintain a system of law and order and justice in the country”. The Chief Justice also stated that this was his pragmatic approach to the fact that “the 1997 Constitution has been unable to provide a solution to the current political and constitutional morass in the country.”

It seems that most lawyers in Fiji were dismayed at the Chief Justice ‘s conduct. However, some of the other judges supported him. Justices Michael Scott and Daniel Fatiaki of the High Court both wrote to the Law Society in response to its letter to the Chief Justice. Justice Fatiaki said that the letter was “unduly censorious” and “characterised by … a singular lack of appreciation of the realities that confront the judiciary and our nation” since the coup. Justice Scott wrote that there was “no possible justification for the [Law Society’s] nasty, cliché-ridden, and almost hysterical letter”. The Chief Justice also retaliated by refusing to allow members of the Law Society’s executive council to appear before him to argue cases. However, he lifted this ban after Ms Florence Fenton, an executive council member and partner in a private firm, began court action to challenge it.

In addition, the Chief Justice interfered in the judicial process of a case with a constitutional dimension, in which he was one of the respondents. The applicant in the case was challenging the appointment of a judge to the bench of the High Court. The Chief Justice directed that the case be removed from Justice Anthony Gates in the High Court at Lautoka to Justice Scott in Suva. Justice Gates ignored the Chief Justice ‘s direction as unlawful and published his critical judgement of the Chief Justice ‘s efforts to have the case removed to a judge of his choice.

The national human rights group, the NGO Coalition on Human Rights, urged President Iloilo to suspend Chief Justice Tuivaga and Justices Scott and Fatiaki and investigate them for misconduct. Besides the Chief Justice’s involvement in drafting the Administration of Justice Decree, the group alleged that during the hostage crisis the three judges had wrongfully advised the military government on how it might procure the dissolution of Parliament and the removal of former President Mara. The Chief Justice reportedly responded that his critics were welcome to ask the President to constitute a tribunal to investigate his actions. However, this did not occur.

The Chief Justice ‘s actions after the 2000 coup seemed inconsistent with his response to the coup of May 1987, when he upheld the (1970) Constitution and the rule of law. Chief Justice Tuivaga provoked further controversy by initially refusing to retire on turning 70 in October 2001. He did eventually retire, however, and Justice Fatiaki was appointed as the new Chief Justice in July 2002.

Administration of Justice Decree

The main features of the Chief Justice ‘s Decree were the abolition of the Supreme Court, the appointment of the Chief Justice to the Court of Appeal and a five-year extension of the Chief Justice ‘s retiring age (from 70 to 75). When the interim civilian government took over from the military, the Administration of Justice Decree was replaced by the Judicature Decree, which was to substantially the same effect. However, the Court of Appeal decision in March 2001 that the 1997 Constitution remained in force rendered the Judicature Decree null and void.

Resignation of Judges

Justice Jai Ram Reddy , the President of the Court of Appeal, resigned shortly after the promulgation of the above-mentioned Decree, as he could not abide the abrogation of the 1997 Constitution, in the drafting of which he had played a significant role as then Leader of the Opposition. Justice Reddy has since been re-appointed as a Justice of Appeal, and is currently on leave, serving as a judge on the International Criminal Tribunal for Rwanda.

Justice Ratu Joni Madraiwiwi , a High Court judge and well-known human rights advocate, also resigned in 2000, as he considered the modus operandi and involvement of Chief Justice Tuivaga in drafting military decrees “unacceptable”. Justice Madraiwiwi returned to legal practice in Fiji and in 2004 was appointed Proceedings Commissioner of the Fiji Human Rights Commission. On 10 January 2005, Ratu Joni was sworn in as Vice-President of Fiji, replacing the disgraced Ratu Jope Seniloli, who had resigned in November 2004.

A number of magistrates also resigned after the May 2000 coup.

A Divided Judiciary

On 19 March 2001, 152 members of the Fiji Law Society voted on whether to stay possible action against the Chief Justice for his alleged involvement in advising President Iloilo on matters which led to the dissolution of Parliament and the dismissal of Prime Minister Chaudhry.

Responding to the mandate given to the Fiji Law Society ‘s executive council to proceed “with appropriate action” against him, Sir Timoci said he had no regrets about his actions. He said he would resign once a full Parliament was appointed after the national elections in August 2001, but that this decision was not influenced by the Law Society. However, a local media report soon afterwards quoted him as saying he had five more years to go and early retirement would be dependent on the situation of the country and how soon a suitable replacement could be found. In the same report the Chief Justice described himself as “a fair, balanced judge and doing the best for the country though people don ‘t agree with the way I conducted my role”. He was reported as “strongly believing” that the Constitution needed changes.

In May 2001, the Citizens’ Constitutional Forum (CCF), filed a petition challenging the legality of President Iloilo ‘s decision to defy the Court of Appeal decision in Chandrika Prasad and instead appoint a caretaker government. The CCF was seeking a ruling that would force the national elections called for August to be cancelled and require the pre-coup Parliament to be recalled. Chief Justice Tuivaga allocated the case to Justice Fatiaki.

On 14 May 2001, the CCF’s lawyer, Sir Vijay Singh, asked the judge to disqualify himself because of his alleged involvement in advising the President. Justices Nazhat Shameem and John Byrne gave evidence against Justice Fatiaki. He was furious and called their actions “a clumsy, unworthy attempt” to undermine him. Judge Fatiaki suppressed a key court document published by Agence France Presse, submitted as evidence before him, saying “it was not a document to be found in the gutter”. This document was written just three days after the Speight coup by the Chief Justice and Justices Fatiaki and Scott, and advised the President (and/or the military government) that “it was evident as the events continue to unfold that there will not be a return to the status quo ante and that the 1997 Constitution may have to be amended”. Justice Fatiaki ordered the media not to publish details of this document. On 24 May 2001, he refused the CCF ‘s request that he disqualify himself on the ground of bias, but said he had decided to hand the case over to another judge anyway, because it was urgent and he would not be able to hear it for some months. He then took the unusual step of referring the case back to the Chief Justice for re-allocation. On 25 May 2001, the CCF wrote to the Court saying there would be no further attempt to disqualify certain judges from hearing its application as they were seeking a quick resolution.

The Chief Justice then allocated the case to Justice Scott, who, on 11 July 2001, substantially refused the relief sought by the CCF and upheld the President’s actions in calling for elections in August and appointing a caretaker government. Justice Scott acknowledged constitutional flaws in the way that relevant decisions had been made, but concluded they were justified by the doctrine of necessity. The alternative, in his view, would have been a serious breakdown of law and order. The CCF appealed to the Court of Appeal against Justice Scott’s decision, but the appeal was not heard until after the elections, by which time the issues were moot.

This court battle took place against the background of a worsening civil war within the bench of the High Court. In 2000, Chief Justice Tuivaga had assigned Justice Shameem to the Criminal Division, apparently to prevent her from hearing any constitutional cases, due to her views on the coup and the Constitution. Justices Gates was transferred from Lautoka to Suva and also assigned to the Criminal Division in 2001, shortly after the Court of Appeal decision in Chandrika Prasad. Justices Shameem and Byrne received written reprimands from the Chief Justice for giving evidence against Justice Fatiaki in the CCF case. Justice Byrne, an expatriate serving in Fiji on contract, was threatened with non-renewal of his contract, although this did not eventuate.

Delays and Case Backlogs

Access to justice is a long-standing problem in Fiji, owing to a combination of under-resourcing and geography. Magistrates Courts rarely visit the smaller islands or sit outside the major towns and cities. Statistics on court delays are not available, but some civil and criminal cases have continued for up to 10 years. Once source of delay is the lack of sound recording equipment or stenographers in courts, which leaves judges and magistrates to take down evidence by hand. Remand prisoners have been granted bail in a number of criminal cases on the basis that inordinate delays in bringing them to trial had resulted in a breach of their constitutional right to be tried within a reasonable time.

The situation at the Lautoka High Court is particularly bad, and many in the local legal and business community believe that the Court has been systematically neglected by successive governments. For example, on his retirement in December 2004, Justice Byrne commented that when Lautoka High Court opened in 1975, it had two judges, and the Suva High Court had three, but while the number of judges in Suva had since increased to eight, there had been no increase in Lautoka in 29 years. The Deputy Registrar of the Lautoka High Court estimated at the time that there were some 6,500 civil cases pending. The Attorney-General’s Office disputed this figure, however, suggesting it was more like 800 cases.

Since Lautoka and its surrounds are largely populated by Indo-Fijians, and comprise the rural heartland of the opposition Fiji Labour Party, some have suggested the government neglect may be racially or politically motivated.

A third judge was appointed to the Lautoka High Court in February 2005, bringing the number of judges assigned to hear civil cases there to two.

Conclusions

  1. In a society where people are still hesitant to speak out, dissension is a virtue – the ability to express opinions which differ from official held ones-    the need for Civil Society Organisations remain an important one. CSOs in Fiji were at the forefront of voicing concerns against the coup and launched into calls for power to be handed back to the government. These included organisations like FWRM, FWCC, CCF and PCPI. The Citizens’ Constitutional Forum’s own work in the area of advocacy against violations of justice, law and order, indicates that there is need for more CSO voices to speak out in this area.
  2. For the public to be confident in the rule of law, the judiciary must be independent and have a high level of integrity. They must also be seen to be independent and have a high level of integrity. CSOs and citizens of Fiji need to continually hold the judiciary accountable and demand the government not to interfere with the judiciary.

  3. Judges must not be penalised for upholding the constitution and sticking to the law. Furthermore, the administration of justice in Fiji needs to improve. There is a need to provide better buildings, qualified people, and a good support system to ensure the swift and efficient resolution of court cases.

  4. The need to remain engaged in debate and dialogues with ruling regimes is crucial, although it’s a difficult task. The regime is running from tax-payers’ money, and the grassroots level remains at a position where they are vulnerable to the government. Most ordinary citizens can only voice their concerns through CSOs. At a recent grassroots workshop on the national budget, participants raised concern on the high level of corruption in government and the wastage of resources through inefficiency, which meant not enough was left over to build basic infrastructure, which has been promised to them over the past two decades. Participants wanted to know how they can get independent information about the performance of governments and political parties, so they can make up their minds themselves about who is the best to vote for. Thus, the need for education and advocacy remains great in Fiji and there is a need for NGOs to continue working with grassroots communities and remain engaged to voice concerns and relay it on behalf of the people. Thank you for listening.

 

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