REVAMPING THE JUDICIARY
Nakarawa holds a Doctor of Philosophy in Law from the University of Waikato in New Zealand. He was a law assistant professor at the Fiji National University and previously served as the Assistant Commissioner of Corrections from 1998 to 2001.
PART 1
This article analyses the judiciary’s performance following coups and its subsequent developments.
Let us not deceive ourselves; coups are unlawful actions that alter a country’s fundamental institutional structure.
Understanding these institutional shifts is crucial as coup instigators systematically dismantle judicial safeguards to facilitate their agenda.
Thus, it is essential to examine the impact on the quality of our judicial institutions during the coup and the transition period to the present. Judges in the context of this discussion include Magistrates.
Historical Background
Socrates proposed four essential qualities of a good judge: “to listen respectfully, to respond wisely, to deliberate earnestly, and to adjudicate impartially.”
However, no predetermined formula or exact science exists to achieve these ideals.
Traditionally, judges adopted a passive role, primarily ensuring adherence to procedural rules while allowing advocates on each side to present their cases.
The prevailing belief was that if the process remained fair, litigants, aided by their legal representatives, would effectively present the required evidence and arguments within the confines of procedural guidelines, ultimately leading to a just resolution.
The rise in self-represented litigants, increased attention to domestic violence issues, and the emergence of new social science and jurisprudential methodologies have collectively transformed the role of the 21st-century judge.
No longer confined to arbiters of facts and law, modern judges are also expected to be skilled communicators and advocates for the judiciary.
Additionally, problem-solving courts and a focus on procedural fairness have expanded the judge’s responsibilities beyond traditional adjudication. They are now required to engage actively in addressing societal challenges and fostering effective communication with all stakeholders involved in the legal process,
The community’s acceptance of the court hinges on faith and trust—the belief that judges will render fair decisions, treat all individuals with respect and dignity, and maintain the integrity of their esteemed roles within society. Confidence in the judiciary’s daily operations or specific cases is not solely reliant on individual outcomes or judgements.
Fairness in this context encompasses the substance of what is said and how it is communicated. It provides all parties a reasonable and comprehensive opportunity to present their arguments and evidence.
Moreover, fairness entails demonstrating respect towards all individuals involved in the case, including parties, legal representatives, and witnesses.
The effects of coups on the Judiciary
In military coups throughout history, the judiciary has often been targeted to consolidate power and legitimise the coup.
By controlling the judiciary, the coup’s perpetrators can ensure that legal challenges to their actions are suppressed, and their authority is solidified. This often involves removing judges perceived as obstacles or may resist the new regime’s agenda.
The 1987 coups, for example, resulted in the incarceration of some judges and the removal of others following the abrogation of the 1970 Constitution. This highlights the judiciary’s importance in upholding the rule of law and its potential vulnerability in times of political upheaval.
The 2006 Coup
The significance of the 2006 coup lies in the apparent involvement of senior judiciary members and the legal profession before or after the event. This collaboration raised serious concerns about these institutions’ commitment to upholding the rule of law.
In the aftermath of a coup, the rule of law is often undermined, and ordinary citizens look to lawyers for leadership and guidance. However, when these figures demonstrate indecision or engage in elusive undertakings, it aggravates the already severe implications of the coup immediately and in the long term. It erodes public trust in the legal system and weakens the foundation of democratic governance.
Therefore, the lack of clarity and leadership from the legal community during such turbulent times exacerbates the challenges faced by society in restoring democratic norms and the rule of law.
The division that existed in the judiciary after the 2006 coup can be traced back to the events of the 2000 coup.
During that time, the Chief Justice, Sir Timoci Tuivaga, and two of his colleagues chose to engage with the military government that had taken control.
These engagements primarily involved vetting the Judicature Decree, which included provisions that improved the conditions of the Chief Justice.
This sparked criticism from the other members of the judiciary and the president of the Fiji Law Society at the time.
Following Sir Timoci Tuivaga’s tenure, Hon Daniel Fatiaki succeeded him as Chief Justice in 2002. Fatiaki was among the judges who supported his predecessor in his interactions with the military government.
However, a division emerged between Judge Fatiaki and three other judges – Byrne, Gates, and Shameem JJ who maintained an appropriate legal distance from the military government and its actions.
The bitter division within the judiciary surfaced after the 2006 coup and the suspension of the Chief Justice, Daniel Fatiaki, in 2007. Madam Justice Shameem assumed the role of chairing the Judicial Services Commission (JSC). She defended her actions by citing an opinion obtained from a Queen’s Counsel.
However, it is notable that no specific provision in the constitution authorised a substitute to chair the JSC in place of the Chief Justice. Despite this, Justice Shameem proceeded with her involvement in the commission, highlighting the ambiguous and legally questionable circumstances surrounding the actions taken following the coup.
Given the underlying tensions and divisions within the judiciary, it’s unsurprising that the interim military government led by Voreqe Bainimarama initiated a comprehensive purge of the judiciary.
Indeed, recruiting judges from Sri Lanka and controlling the appointment of local judges through contracted terms served to consolidate control over the judiciary without regard for democratic governance or the rule of law.
By handpicking judges who were perceived to be sympathetic to the regime, the separation of powers essential for a functioning democracy was undermined.
Over time, this practice deteriorated the quality of judicial service, as judges may have been selected based on political allegiance rather than merit or impartiality.
Additionally, the perception of judicial independence suffered greatly, as the judiciary appeared to be under the ruling regime’s direct influence rather than impartially upholding the law.
As a result, public confidence in the judiciary reached an all-time low, further eroding the foundations of democracy and the rule of law in Fiji.
This highlights the profound impact of politicising the judiciary on a society’s governance and legal system.