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City Desk
25 May, 2009  
Fiji's bogus judiciary

Tony Gates is back as Chief Justice of Fiji … London silk advises Fiji lawyers not to accept judicial appointments from unconstitutional regime … Sacked Australian judge defends the patch

imageAnthony Cumberland Thomas Gates, the dual Australian-British citizen, has taken up the poisoned chalice and is back as Chief Justice.

He was sworn-in on Friday by the illegally installed President at Government House Suva.

He should have gone home and had a good shower afterwards.

Three other judges were also sworn-in: Daniel Gounder, Davendra Pathick and Sosefo Inoke.

Mary Muir was also signed-on as a resident magistrate.

On Monday (May 25) the elderly Australian (Lord) John Byrnes was also sworn-in as a High Court judge. He’s originally from Ballarat and says he’s an Irish peer.

Gates’ reappointment was not anticipated.

It was on his watch that the three Australian judges on the Court of Appeal last month found that Frank Bainimarama’s seizure of power in December 2006 was illegal, as was the dismissal of the Prime Minister Laisenia Qarase and the dissolution of parliament.

The expectation was that he would be on the nose with Frank & Co and stay put at his home in Sri Lanka.

The swearings-in of the junta judges were conducted against the background of three lawyers being detained and questioned by the military regime over their alleged involvement in an anti-government blog.

Richard Naidu and Jon Apted from the firm Munro Leys and Tevita Fa, an adviser to Qarase, had their computers confiscated and examined. They were all later released.

Naidu and Apted have acted for the Fiji Times for a number of years.

On Sunday (May 24) Gates was reported by Fiji Radio as giving this explanation for taking up the appointment:

“All of us [judges] were dismissed [in 1987, after the second coup that year]. Though we felt we held the moral high ground, the ordinary people of Fiji were left abandoned. It took the continuing Chief Justice Sir Timoci Tuivaga many years to restore the numbers and many years more to catch up on backlogs and resources. The departure of the judges then can only be described as disastrous.”

* * *

imageAlso to hand, comes an exquisite advice out of 3 Hare Court in London.

James Dingemans QC (pic) and James Hawkins were asked for an opinion by the Fiji Law Society on three issues:

* The constitutionality of the Administration of Justice Decree (which took effect after the judiciary was sacked in April).

* Whether within the ambit of the rule of law, members of the Fiji Law Society can engage in discussions with the President of the country in relation to judicial appointments.

* Whether it is lawful for members of the Fiji Law Society to appear before a court constituted under the Administration of Justice Decree.

Dingemans (who was counsel assisting the Hutton inquiry into the death of British government scientist Davis Kelly) and Hawkins conclude that the decree infringes the Constitution and is inconsistent with the rule of law.

It would breach their code of ethics for members of the Fiji Law Society to accept appointments as judges or to become involve in the system of appointment.

They add that lawyers may continue to appear before the courts, so long as they do nothing to assist the usurpation of power.

You can read the advice from London HERE.

* * *

imageRebuffed by an ungrateful Fiji junta, sacked judge Thomas Hickie (pic) has turned to the media to unburden himself of a bundle of disappointments.

He released to The Australian a response by unnamed Fiji judges critical of the IBA Human Rights Institute’s report on the rule of law in Fiji.

That report was issued in March and titled, in accordance with its conclusions, Dire Straits.

In the response the undisclosed judges accused the IBA of a series of errors in its report and questioned its authority to investigate.

The article in The Australian, Fired judges on the attack over IBA claims coyly didn’t name the sacked-judges who authored the attack.

Some of the text of the ex-judges’ critique was published, but which judges?

Their response is unsigned. The copy sent to the IBA is also unsigned.

Some of the criticisms in the document bear a striking resemblance to those made by former Justice Hickie.

See, When backlogs lead to payback where he chastises ABA president Tom Bathurst for issuing a caution about accepting judicial appointments in Fiji.

Also see, Hickie defends courts’ integrity.

Could it remotely be possible that Hickie himself is an author of the authorless “attack over IBA claims”?

* * *

Hickie is reported as saying:

“I cannot sign back up under the present decree. For me, as an expat, it was time to go.”

But why back out now?

The analysis of the manner of the appointment of Hickie and others in the IBA report may have had a sobering impact on some of those initially attracted by the prospect of judicial preferment in Fiji, to which they were unlikely to aspire in Australia.

The facts are worth considering.

The judicial oath is set out in a schedule to Fiji’s Constitution:

“I, ... , do swear that I will well and truly serve the Republic of the Fiji Islands, in the office of … I will in all things uphold the Constitution; and I will do right to all manner of people in accordance with the laws and usages of the Republic; without fear or favour, affection or ill will. So help me God.”

The schedule provides for an affirmation in similar form.

Before assuming their commissions judges, such as Hickie and the other post-coup appointees, presumably swore or affirmed before Fiji’s militarily re-installed President.

Leaving aside the question of which manifestation of the Republic it was that they were about to serve, they swore or affirmed to uphold the Constitution, having actual or constructive knowledge that they were being appointed in breach of the provisions of Chapter Nine, governing appointments to the judiciary.

Arguably, lawful appointments were impossible in the absence of those persons whose approval was required under the Constitution in order to ensure the independence of those appointed.

Those persons had been unlawfully dismissed shortly after the December 2006 coup.

At least that much follows from the decision of junta’s judicial appointees in the Court of Appeal in allowing an appeal by the deposed Prime Minister Laisenia Qarase.

* * *

Hickie started his career at the Australian Legal Aid Office, which later was absorbed into the NSW Legal Aid Commission.

He has two brothers, Dr Ian Hickie, the prominent expert on depression, and David Hickie, a former editor of The Sun-Herald and The Sydney Morning Herald.

David also wrote the famous book about corruption in the Bob Askin period in NSW, The Prince and the Pauper.

Tom Hickie went on to undertake academic studies into the history of Rugby Union in Sydney. He received a PhD for his work on this engrossing topic.

He also wrote the history of the Sydney University Rugby Club.

Tom Hickie proved an absolute work horse in Fiji, determined to get through the backlog of cases and get the High Court’s judgments published in a timely fashion.

He also dished out some stiff treatment to critics of the regime that appointed him.

In dealing with contempt proceedings against a local newspaper, he embarked upon a turgid examination of that branch of the law of contempt known as “scandalizing the court”.

As recently as 1911 the High Court of Australia viewed the offence as practically “obsolete”.

Hickie’s 85 pages of reasons were largely redundant, the accused having pleaded guilty.

Their offence was to have published a letter to the editor that made a clumsy attack on the independence of three named judges, claiming the judiciary had been “tainted” since the removal of Chief Justice Daniel Fatiaki and the appointment of the Acting Chief Justice Anthony Gates, another Australian (via England).

While not stated, the letter to the editor implied the tainted elevations to the bench included those of Hickie and the other Australians appointed and reappointed under the auspices of Gates.

It might have been argued that Hickie was disqualified from hearing the matter on the ground of interest and apprehended bias.

There were still a number of judges appointed prior to the coup in December 2006 who could have heard and determined the charges.

imageHickie sentenced Netani Rika, the editor of the News Ltd owned Fiji Times to three months imprisonment, suspended upon him entering into a good behaviour bond for two years.

He discharged the chief executive and acting publisher, Rex Gardiner (pic), without conviction upon him entering into a similar bond for 12 months and fined the company $100,000 to be paid within 27-days.

The publisher, Evan Hannah, was shortly afterwards deported.

Any criticism of the appointment of judges in the newspaper was effectively muzzled.

Hickie’s reasons are subject to appeal.

The IBA report, while it sets out the background to the appointment of judges by the junta after the December 2006 coup, does not express a view on the lawfulness of those appointments.

The Fiji Law Society had brought proceedings questioning the validity of those appointments.

The IBA does draw attention to what it considered questionable decisions by Australian appointees, including stays of proceedings challenging the actions of the military regime and the abuse of contempt proceedings in order to silence its critics.

* * *

Those proceedings are now moot.

The Administration of Justice Decree published by the militarily installed President prohibits the bringing or continuation of proceedings questioning actions by the regime after December 2006, including immigration decisions.

The Constitution has been abrogated and the judges dismissed.

The junta has placed censors, who screen out unsympathetic media reports, in newsrooms.

Supportive judges are no longer required to muzzle critics.

A complaint in April 2008 to the NSW Legal Services Commission, and to the NSW Bar Association by a prominent local critic, Angenette Heffernan and the Pacific Centre for Public Integrity, about the conduct in Fiji of three Australian appointees to the bench did not receive a response.

Ms Heffernan took refuge in New Zealand and her employer, the PCPI, is no longer able to operate in Fiji.

Hickie attacked the organisation in an appeal to which neither Heffernan nor her employer were parties.

An interim injunction, protecting her against Commodore Bainimarama and the military, granted by a courageous local High Court judge commissioned prior to the coup, was lifted in a decision heard and determined before the publication of the IBA’s report by two Australian barristers, Randall Powell and Ian Lloyd, commissioned by the regime as judges of appeal.

The same two barristers, after publication of the IBA report, formed part of the bench that found the purported exercise of reserve powers by the President to be unlawful, and granted the appeal of the deposed Prime Minister Qarase.

See Justinian’s earlier Fiji coverage


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