Tuesday, April 28, 2009



by Kevin Maguire

The recent removal of the judiciary in Fiji by the military should come as no surprise to those who have followed events in the Fiji judiciary since the coup in 2000. Following that coup, serious divisions occurred in the judiciary over the relationship of some of its judges with the then illegal government.

These divisions have existed up until the recent dismissal of the judiciary by the Fiji military. All attempts to resolve the divisions have failed with some members of the judiciary becoming intransigent, losing a proper sense of objectivity and failing to consider the overall good of the judiciary and ultimately the citizens of Fiji. These divisions weakened the judiciary and respect for the independence of the judiciary in Fiji.

The extent of the bitterness of this dispute evidenced itself in the coup of 2006, when following the removal of the Chief Justice two judges acted to replace him. These judges were, Justice Nazhat Shameem who usurped the role of the Chief Justice on the Judicial Services Commission, and Justice Anthony Gates who accepted the role of acting Chief Justice. Their actions were driven by these divisions in the judiciary and were opportunistic acts of vengeance against their “enemy” Chief Justice Daniel Fatiaki.

This could not have occurred without the military removing the Chief Justice in the first place, and therefore giving the opportunity for Justices Shameem and Gates to do what they did and to ultimately take power in the judiciary. This further weakened the already weak judiciary by placing those that took power in the judiciary in the debt of the military. These actions therefore came at a price, in that the military now expected the judiciary to support their illegal coup. The military would rightly have concluded that the judiciary was now compromised and could be expected to support them.

The judiciary largely fulfilled this expectation with the unconscionable delays in the important constitutional cases that had been filed in the courts, the marginalisation of the Appeal Court which led to their mass resignation, the overturning of injunctions made against the military, to name a few events following the removal of the Chief Justice. Finally the judiciary delivered the grand prize, the judgement in the Qarase case in the High Court of Fiji which “legalised” the coup.[i]

The military would have been pleased with the support of the judiciary up to that point. It would have therefore come as a shock to them to see the judgement that was handed down by the Appeal Court which overturned everything that the military had planned for itself and Fiji. It should not have come as a surprise to anyone that a now very weak, divided and hopelessly compromised judiciary should be removed. The military would have felt betrayed and acted with swift vengeance in removing those that they believed were in their debt; the judiciary.

One should go back to the events of January 2007 and the removal of the Chief Justice to suggest that the judiciary may have survived the actions of the military following the coup if it had remained united and strong in the face of it. They had a plan for some time on how they should act if the military again launched a coup but ultimately this all fell apart when Justice Shameem, acting without reference to the panel of judges who were then deciding what to do about the removal of the Chief Justice, acted in the manner she did to replace her “enemy” the Chief Justice and which ultimately, and hopelessly, compromised the independence of the judiciary.

There should be an independent enquiry into what happened to the judiciary in Fiji and the actions of all judges since the coup in 2000, including some of those foreign lawyers who accepted judicial positions in Fiji and who so willingly immersed themselves in these controversies. No one involved should be allowed to rewrite history about their role in these sorry events in Fiji.

There are many lessons to be learned about the protection of the independence of the judiciary and the rule of law from what happened in Fiji. These lessons are not only for Fiji to consider, but also for the rest of the world who believe that the independence of the judiciary is fundamental to democracy and its role in protecting the rights of all citizens to live their lives free from oppression. The Fiji judiciary ultimately failed the good citizens of Fiji and it should not be allowed to happen again. An enquiry is needed.

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