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Journal of South Pacific Law - Fiji Islands Crisis By Sir Vijay R Singh**
Despite the Chief Justice Sir Timoci Tuivaga's explanations, judges, lawyers and lay persons at home and abroad remain profoundly perturbed at his enthusiastic engagement in politically charged extra-judicial business. Judicial independence is far too important a public interest issue not to be publicly discussed when the occasion demands, lest silence induced by tact or timidity be misconstrued as acceptance of the unacceptable. A judge who strays beyond his judicial functions cannot escape public scrutiny and criticisms of his extra-judicial activities.
In 1987, all superior court judges had courageously demonstrated their commitment to uphold the constitution and the rule of law and endured harassment of all kinds. Judge Kishor Govind was imprisoned at Naboro and Judge Rooney held under house arrest for days. All eventually resigned rather than serve under a military regime. Sir Timoci Tuivaga CJ was one such judge but although he was later recalled to the bench, we lost most of the others for good. They deservedly stood high in universal pubic esteem. But sadly, the CJ's recent conduct has caused much dismay. Sir Timoci advised the President on the Constitution's provisions that he could invoke to dismiss the Coalition government. The President acted accordingly.
At issue is not the correctness of the advice -- although that, too, is highly questionable -- but the propriety of judges acting at all as the President's legal counsel. The entirety of the legal profession in the public and private sector, and talent abroad, was available to the President. The severely denounced decision of Australian Chief Justice Garfield Barwick to advise Governor General John Kerr how to dismiss Prime Minister Gough Whitlam in 1975 should have been a salutary signal to any judge not to follow a disreputable precedent. But the Chief Justice did just that, and he cannot evade the consequential commotion.
An even graver grievance concerns the CJ's draft of a decree for the military to promulgate that purported to re-establish the judiciary, and in the process, also to abolish the Supreme Court. This was far from being a benevolent involvement, as Sir Timoci would like us to believe, because implicit in his drafting of the decree were hazardous assumptions of great constitutional and political significance. Firstly, that the military had at that point in time acquired the authority in law to rule by decree, and secondly and accordingly, the judiciary and the constitution from which it drew its authority, went out the window together when the military claimed to have 'wholly removed' the constitution.
Also, for about a hundred years the Privy Council in London had been our final court of appeal and, after the establishment of the Fiji Court of Appeal, the highest of our three superior courts structure. Until, of course, a lieutenant colonel deposed the Queen in 1987 and thereby severed our access to Her Majesty's Privy Council.
To fill the void, the Supreme Court of Fiji was created but the decree Sir Timoci helpfully draft abolished the Supreme Court. Neither the military nor the CJ has claimed paternity of this eccentricity -- that amputation of the highest of our courts was essential surgery to successfully address our afflictions, the foremost of which then were the safe release of the hostages and the restoration of law and order.
The military, for its part, sought to distance itself from this most peculiar prescription for the treatment of our ills. It published a statement two days after the decree, assuring all that "the judiciary has not been tampered with" (Sunday Times 11 June p.25).
Weighty questions inevitably arise. Did the military make the incorrect statement because it did not know that the CJ drafted decree had in fact abolished the Supreme Court? And that thereupon Lord Cooke, Sir Gerard Brennan, Sir Moti Tikaram, Sir Keith Mason and Mr Justice Toohey had been summarily dismissed? Also, that the CJ had installed himself as a judge of the Court of Appeal?
The military's unawareness of these and other aspects of the decree may explain its incorrect statement, but that excuse will inevitably transport the CJ to even a lower and more perilous perch. Was he less than frank with Commodore Frank Bainimarama and kept him in the dark of the decree's important provisions?
Whose agenda required the Supreme Court's abolition -- the military's or Sir Timoci's opposition to the Court, and why? If the military's, why did the CJ not seek the Law Society's support to preserve the long established judicial system, instead of completely ignoring the legal profession while he collaborated with the military?
Did Sir Timoci's adventures cause or contribute to the resignations of Justices Jai Ram Reddy as President of the Court of Appeal and Ratu Jone Madraiwiwi as a High Court judge? And might we not lose more judges who find the CJ's modus operandi unacceptable, as shown up in Judge Anthony Gates's ruling last week in a matter when Sir Timoci tried to have a case in which he is a defendant assigned to a judge of his selection?
And crucially, what, in Sir Timoci's view, is the source of his present claim to be the Chief Justice? Is it the Constitution that he was sworn to uphold, or the military decree that he obligingly drafted to restore his and other judicial offices? The two propositions are mutually exclusive; they cannot reside under the same roof at the same time. Sir Timoci cannot escape these and other disquieting questions -- all products of his questionable conduct in office.
In his typically understated fashion, Peter Knight, then Law Society President, had observed: "The Chief Justice had other options open to him." Expediency, arbitrary decision-making, acting as the executive's legal counsel and the military's legal draftsman were not in Mr Knight's contemplation. Sic transit gloria.
*This article first appeared in the Fiji Times of October 17, 2000.
Sir Vijay Singh's read law in London and is a Barrister of the High Courts of England, Australia and Fiji. He was a Minister in Ratu Mara's pre and post-independence governments and also Attorney General and Speaker of the House. Sir Vijay is presently in private practice in Suva.
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