Fiji Sun

REVAMPING THE JUDICIARY

- Dr Jalesi Nakarawa READ PART II IN NEXT WEEKEND’S EDITION.

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.

 ?? ??
 ?? Former Chief Justice Daniel Fatiaki. ?? Wholesale Change to the Judiciary
Former Chief Justice Daniel Fatiaki. Wholesale Change to the Judiciary
 ?? ?? Fiji’s first woman High Court Judge Nazhat Shameem.
Fiji’s first woman High Court Judge Nazhat Shameem.
 ?? ?? Former and late Chief Justice Sir Timoci Tuivaga.
Former and late Chief Justice Sir Timoci Tuivaga.
 ?? Former Chief Justice Anthony Gates. ??
Former Chief Justice Anthony Gates.

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