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Judge Trying To Appeal Against Gates' Judgment

Judge Trying To Appeal Against Gates' Judgment
Issue No: 221; 24 November 2000

A high court judge, Justice Michael Scott, says he wants to appeal against the judgment of Justice Anthony Gates on the 1997 Constitution. Scott filed an application in Lautoka High Court asking that he be made a party to the original case.

Scott says the judgment damaged his profession, reputation and brought public scandal, odium and contempt for him. His affidavit states:

"The criticism of the three judges implied that they disregarded their oaths of office, failed to uphold the 1997 Constitution or act impartially, compromised the independence of the judiciary, set a dangerous precedent by advising Ratu Sir Kamisese Mara, advised the `usurping regime' in direct conflict with their oaths of office and hoped to get something out of the new regime".

Scott further stated that the issue of the three judges had nothing to do with the case, that he had never heard of a judge criticise another in such a manner ("without precedent and wholly improper"), that the criticisms were based on hearsay and assumptions, and that he had not been given any chance to refute them.

Judge Gates had stated in his judgment:

"It would be inappropriate, as happened here in Fiji, for 3 judges of the High Court, to provide written opinions to His Excellency and oral advice on political paths out of the impasse. It is unwise also to tender advice on the grant of immunity to the rebels for such immunity is bound to feature in future criminal prosecutions or civil litigation.. Even more unwise and dangerous a judicial precedent was the tendering of advice on the proroguing of Parliament, the appointment of an Acting Prime Minister and the dismissal of the Government. These were not appropriate judicial functions."

He continued:

"Similarly judges should not compromise their neutrality by taking an active part in advising an usurping regime. Nor should they assist in drafting decrees for the usurper. Such may attract the criticism that they were aiding and abetting the abrogation of the Constitution, indeed were acting with indecent haste to see the Constitution gone, such assistance being in obvious conflict with their judicial oaths of office. The cynical will say they hoped for something in the new regime. Such views undermine the public's confidence in the judiciary.

He stated:

"It is well known the same judges assisted in the drafting of the Administration of Justice Decree 2000 (Interim Military Government Decree No. 5 of 2000). That Decree was subsequently repealed by the Judicature Decree 2000 [ICG Decree No. 22].

In the Decrees of notoriety were the raising of the retirement age of the Chief Justice and that of the puisne judges of the High Court, and the unfathomable abolition of the Supreme Court. None of this conduct provided buttress, in the opinion of the nation as evidenced in the Press, to the institutions of the courts and the judiciary, and such drafting should never have been entered upon. There was no power to abolish the Supreme Court. No necessity compelled its abolition. It existed under the Constitution and it remains Fiji's final Appellate Court still."

Chief Justice Sir Timoci Tuivaga, Judge Michael Scott, and Judge Daniel Fatiaki were the three judges referred to by Gates.

The full judgment is found at:

Gates' decision has been hailed by a majority of the people of Fiji, including the Fiji Law Society. The law society had itself condemned Tuivaga, Scott and Fatiaki for advising and writing law rather than interpreting law.


Chiefs defer meeting Issue No: 220; 24 November 2000

The meeting of the Great Council of Chiefs has been deferred to next year.

The chiefs were supposed to meet from 27 November. In an advertisement today, the GCC secretariat announced that it was postponing the meeting to allow the provincial councils to complete their current sessions and for the committees on Mahogany and Fijian unity to complete their reports and recommendations for submission to the Chiefs meeting.

It is believed that the move to postpone the meeting was to allow the provincial councils to decide to reject the 1997 constitution and endorse the writing up of a new racist constitution.

The advertisement also stated that the GCC stresses the need to respect the Judge Gates' judgment on the 1997 Constitution as well as the regime's right to appeal the judgment. It stated that the Chiefs will wait for the final outcome of the appeal.

The Interim President, Ratu Josefa Iloilo, who this week returned from medical examinations, was reportedly furious at the postponement and demanded an explanation from Rabuka, the Chairman of the GCC.


Other races must not lead - Ravuvu Issue No: 219; 24 November 2000

If indigenous Fijians allowed other races to head the nation they would regret the decision, says the Chairman of the regime's Constitution Commission. Whether the five non-indigenous Fijians on the Commission, Joe Singh, Fred Achari, Joseph KL Maharaj, Benjamin Bhagawan and Bill Sorby endorsed this view is not clear.

Ravuvu was quoted by the media (Fiji Times, 23 Nov) as telling the submittees in Kadavu that the 1997 Constitution "has caused much bloodshed which clearly sow the indigenous people's strong objections towards it". He further stated: "It was a constitution that brought much instability and will continue to do so if not changed".

Ravuvu is the University of the South Pacific's Professor of Pacific Studies. The USP caters for the multi-racial community of Fiji as well as students from 11 other nations of the Pacific. The University has given Ravuvu leave to do this work. It has also released another academic, Samoan National, Leulua'ialii Tasi Malifa, a lecturer at the University's School of Law, Emalus Campus, Vanuatu, to work as legal counsel for the Ravuvu Committee.

Fiji citizens have now begun to question the ability of the USP to serve the non-indigenous Fijian students, particularly non-indigenous Fiji students, without bias when university academics hold racial supremacist views.

END 24 November 2000

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