COI Into The Magistrates' Courts In Fiji Report
Commission of Inquiry into the Magistrates' Courts in Fiji Report
The Commission of Inquiry into the Magistracy was set up by His Excellency, our President on 14 September, 2007 where he appointed Justice John Connors to be the Commissioner.
His Excellency appointed Justice Connors to enquire into the Magistrates’ Courts in Fiji and in particular to enquire into and report on:
- The appointment, conduct and performance of the current Magistrates;
- The operation and performance of the Magistrates’ Courts, including their Registries;
- To make recommendations for the elimination and prevention of any corrupt, improper or inefficient practices within the Magistrates’ Courts;
- To make recommendations for the efficient and effective delivery of justice by the Magistrates’ Courts of Fiji and;
- Any associated matters that may be thought relevant to the general objects of the inquiry.
The Report was to be submitted by June this year. Justice Connors submitted the Report to His Excellency on 5 May 2008.
His Excellency and his office have studied the Report and handed it to me on Friday 16 May 2008.
There are two volumes to the Report.
Volume One of the Report contains the recommendations that is suggested, be implemented as soon as possible to minimise the risk of further corruption and to maximise the efficient operation of the Magistrates’ Courts in Fiji.
Volume Two of the Report deals with specific allegations of corrupt behaviour by Resident Magistrates.
We will this afternoon make available the recommendations of the Report from Volume One. We will also highlight some of the salient observations made by Justice Connors.
Volumes One and Two shall be handed over to the Judicial Service Commission for any necessary action. Volume One shall also be handed over to the Chief Justice, the Chief Magistrate and the Criminal Justice Council.
His Excellency’s recommendations shall also be forwarded to the Judicial Service Commission.
I would like to thank His Excellency for taking this initiative. I would like to also thank Justice Connors for the enormous effort he has put into this Inquiry.
There was a lot of pressure on him. Initially, he did not get the support that one would have thought he would have got from the Fiji Law Society Council. However, a number of senior and other lawyers made submissions to the Commission.
The response he got from our citizens was very encouraging. We would like to thank them for taking the time and the initiative and in some instances taking the risk to do so.
Justice Connors took up the position when there were a lot of castigations against people who were participating in processes that were set up or supported by the Government - even though these processes are beneficial to Fiji and her people.
It should also be noted that Justice Connors received threats. There were also a lot of aspersions cast on his character and on his family. But Justice Connors persevered and focused on what needed to be done. This is perhaps a lesson for all.
If you are speaking the truth or indeed seeking the truth and if you want to bring about true democracy, true justice then you should not be intimidated or discouraged.
Justice Connors was most definitely doing the right thing – he stuck to his mandate, to his purpose as we all should.
To those people who tried to intimidate him and to those people who tried to cast aspersions on his character you can be rest assured that the Report is now in our hands.
Justice Connors found that there were many common issues that arose from the submissions received by the Commission of Inquiry. Some of these were:
1. The inadequacy of the appointment process with respect to Magistrates; the perception of cronyism; a lack of transparency in the appointment process and a lack of structure to that process;
2. The level of competence of Magistrates particularly with respect to civil suits;
3. Delay in the disposal of proceedings;
4. Inability to control the court process and the granting of adjournments unnecessarily;
5. Inadequate sitting hours;
6. Dictatorial approach to dealing with matters, particularly prisoners in custody;
7. Delay in the delivery of judgements and rulings;
9. Rudeness, bullying, arrogance and intimidation of witnesses, counsel and prosecutors;
10. Inconsistency in sentencing;
11. Inadequate provision for the servicing of the maritime Courts, particularly with the development of the tourist industry;
12. Provision of legal aid;
13. Maintenance of the Court record and sound recording and technology;
14. Bias of Magistrates;
15. Inadequate infrastructure;
16. Interference in the training of Magistrates by aid donors.
17. Lack of planning resulting in Courts being cancelled;
18. Lawyers, witnesses and others visiting Magistrates in chambers;
19. Lack of competent Court clerks;
20. Lack of disciplinary action by the Judicial Service Commission; and
21. Lack of accountability of Magistrates.
I will now highlight some of the common concerns raised by Justice Connors:
DELAY IN THE DELIVERY OF JUDGEMENTS AND RULINGS
Justice Connors noted that in Labasa, a judgement had been pending for the last 3 years. Evidence to the Commission of Inquiry revealed that a Magistrate has some 20 judgements outstanding in Labasa, and that Magistrate is no longer serving in Labasa.
Another example, Justice Connors highlighted was that a complaint was made to the Commission with respect to the civil judgements outstanding in Ba, where a Magistrate had failed to deliver judgements which were pending for two years.
In another incident a Magistrate has 41 judgements outstanding from a previous Court that the Magistrate was sitting in. These decisions have been pending now for 3- 4 years.
DICTATORIAL APPROACH TO DEALING WITH MATTERS
In Nadi, evidence was given to the Inquiry that all fresh charges were to be filed with the Registry prior to 12 midday and that persons in custody were to be brought before the Court prior to the lunch adjournment. Those persons not brought before the Court within that designated time frame were required to remain in police custody until the following day.
At Lautoka, at least one of the three Magistrates adopts a similar approach.
The point is Justice Connors found that Magistrates are employed from 8.30am to 4.30pm. And indeed they should work these hours.
When a Magistrate was asked during the Inquiry about such a practice, the Magistrate said “well who runs the court, me or the police.” Justice Connors says in response that “perhaps the more important question is – for whose benefit is the Court? The Court is for the benefit of the community, a fact that appears to be overlooked by some Magistrates.”
INADEQUATE SITTING HOURS
Statistical returns made available to the Inquiry by the Chief Magistrate indicate that most Courts are not sitting beyond lunch time. Many Courts in Suva, in particular, are sitting for as little as 10 minutes per day and are on average sitting not more than an hour.
In the West, it would appear the Courts at Nadi sit until at least lunch time and Court Number 1 at that centre sits for reasonable hours.
In Lautoka, information furnished to the Inquiry would suggest that it is normal for Courts there not to sit after the luncheon adjournment.
Justice Connors notes that there appears to be an attitude that all work including judgement writing must be completed within the working hours. In many instances both in Suva and Lautoka large parts of the day are appropriated to “grog” drinking by some Magistrates. In Suva it appears that it utilises the time of some Magistrates between 11am and 2pm. In other centres the same or lesser periods are used for “grog” drinking sessions.
It was also noted that Magistrates remuneration is far greater than civil servants, yet it would appear they in practical terms work far less hours.
ROTATION OF MAGISTRATES
Justice Connors found that some Magistrates have spent almost all of their working life in one geographic area. In a small community such as Fiji this is fraught with danger.
In other Commonwealth jurisdictions, Magistrates are required to be transferred each 3 or 5 years. There would appear to be even greater need for this to occur in a country the size of Fiji, where it is so easy for relationships to develop which may create an unhealthy situation.
He also observes that some Magistrates have resisted being transferred from one division to another when directed by the Chief Magistrate. This situation cannot be allowed to continue. The Chief Magistrate must have the unfettered capacity to move Magistrates from Court to Court, from time to time.
THE COURT RECORD
Court records have traditionally been maintained by Magistrates in their own handwriting and then transcribed when required for the purposes of appeal.
This system is fraught with danger and open to abuse. There have been many instances that have come under notice where it has been suggested that Court records are inaccurate or unreliable.
Justice Connors observes that systems that were acceptable in a bygone era certainly do not satisfy the needs of a modern system in the global economy. Fiji needs to be part of the global economy to bolster its own economy and this brings with it burdens and obligations to maintain proper standards, most relevantly in the delivery of timely justice.
BIAS OF MAGISTRATES
Submissions received indicate that some Magistrates fail to recuse themselves when they should. It is an inevitable problem in a community as small as Fiji that Magistrates are from time to time going to know in some way accused persons, plaintiffs or defendants who come before them.
Submissions were also made that those same Magistrates showed a bias against the prosecution and were in favour of the defence.
INTERFERENCE IN THE TRAINING OF MAGISTRATES BY AID DONORS
Submissions were received that aid donors have been approaching Magistrates directly and offering them trips to overseas conferences and participation in other training programmes without reference to the Chief Justice or other supervising officers.
This appears to have created some discontent amongst those Magistrates not part of the select group who apparently are invited repeatedly to participate in training programmes overseas.
It is understood that since the events of December 2006 most aid donors have refused to communicate with or acknowledge the Acting Chief Justice and it is on this basis that individuals have been approached directly.
A similar situation exists with the annual judicial conference where aid donors at times offer to provide speakers. This is done on an ad-hoc basis without any consideration as to the needs of the Magistrates.
THE REQUIREMENT FOR WRITTEN SUBMISSIONS
It was also observed that Magistrates have developed a habit of requiring counsel to make written submissions in many matters.
Justice Connors remarks that this would appear to be quite unnecessary and will do much to cause further delay in the delivery of judgements.
INADEQUATE PROVISION FOR THE MARITIME COURTS
Submissions, for example were received on behalf of the Lomaiviti Provincial Council with respect to the inadequacy of the Court sittings on Koro Island. It was submitted that with the increasing tourist developments the need for a “proper Court” was increasing.
Concerns were expressed that Courts were cancelled and there was a lack of reliability on the attendance of the Magistrate. The reasons for this lack of reliability appeared to arise from transport difficulties from time to time.
LACK OF PLANNING RESULTING IN COURTS BEEN CANCELLED
It appears from submissions made, that there is a lack of planning which results in Courts being cancelled regularly.
Instances of this occurring, were in the maritime jurisdiction together with Courts on the main islands, Viti Levu and Vanua Levu where Magistrates are called for meetings in Suva at short notice resulting in their Court been cancelled and all matters called before another Magistrate and adjourned. Further instances appear to arise when various activities take Magistrates away from their Court for a day, such as social obligations
Justice Connors notes that it seems quite inappropriate for Courts to be cancelled in this manner because it inter alia results in witnesses attending for no good purpose and counsel wasting valuable time.
ATTENDANCE IN MAGISTRATES CHAMBERS
Justice Connors notes in this respect that it has become the practice for lawyers, prosecutors, witnesses and others to visit Magistrates in their chambers.
Evidence was given before the Inquiry of this having occurred in Suva and other places. There would appear to be no legitimate reason why anybody, be they a lawyer, a prosecutor, a witness or some other person should attend upon a Magistrate in chambers.
All matters that require the presence of any of those people before a Magistrate should be dealt with in open Court.
It is the practice in other jurisdictions for the public to be completely excluded from the Magistrates’ chambers.
If Magistrates persist in entertaining lawyers and others in their chambers, they are exposing themselves to allegations at best, misbehaviour. The situation is even worse when witnesses and others are observed entering Magistrates’ chambers.
It would seem appropriate for directions to be issued, as they have in other Commonwealth jurisdictions, prohibited the entry of any member of the legal profession, the public, the Police Force or other persons to the Magistrates’ chambers.
LACK OF DISCIPLINARY ACTION BY THE JUDICIAL SERVICE COMMISSION
Justice Connors observed that a perusal of the minutes of the Judicial Service Commission in recent years would suggest that very little action had been taken, by way of an investigative or disciplinary role.
LACK OF ACCOUNTABILITY
Justice Connors notes that there is no specific monitoring of the performance of the Magistrates’ Courts and the Magistrates.
He noted that some Magistrates, at least are of the opinion that they do not have to comply with the directions of the Chief Magistrate or any other person with respect to administrative matters. They portray that any such request is an interference with their judicial independence.
This attitude, Justice Connors notes shows a complete lack of understanding of judicial independence.
In most, if not all jurisdictions throughout the Commonwealth, judicial officers are required to be accountable both in an administrative sense and also with respect to the consistency of penalties imposed.
Submissions made by lawyers to the Inquiry suggest that the standard of the Magistracy has declined since 1987.
From the material made available it would appear that there has been very little, if any, monitoring of the performance of Magistrates or the Magistrates’ Courts by the Chief Magistrate or any other senior person in recent years.
THE TRAINING OF MAGISTRATES
From the files perused, submissions made and observations made by Justice Connors, it would appear that the training of Magistrates has been very much on an ad-hoc basis.
The attendance at training sessions is not mandatory and Magistrates attend only if they wish to do so.
Justice Connors noted that in other Commonwealth jurisdictions attendance at education programmes and annual conferences are mandatory and all leave is cancelled. He asks “why such a policy is not already being adopted in Fiji.”
Ladies and Gentleman, these are some of the observations made by Justice Connors. He has further made 27 Recommendations which will be handed over to you and the salient reasons for those recommendations.
The Government believes that true justice and indeed democracy can be achieved through amongst other things strengthening our Magistracy, making it accountable and efficient.
The bulk of our population appear before the Magistrates’ Court. We have recently undertaken initiatives that would provide better and quicker access to justice. These initiatives have involved increasing the jurisdictional limit of the small claims tribunal to $5000. The response to this initiative has been extremely positive.
The Government also increased the civil jurisdictional limit of the Magistrates’ Court to $50,000. In this day and age, $15,000 as the civil jurisdictional limit of the Magistrates’ Court is too low and therefore a lot of minor cases end up in the High Court.
We are keen that the Magistracy is revamped to deliver better services and provide a real accountable and transparent justice system. We will work in conjunction with the Judiciary, the Judicial Service Commission and the Criminal Justice Council to ensure that these objectives are achieved.
In our recent visit to Singapore, the head of the Subordinate Courts and the Attorney General expressed willingness to assist Fiji to attain these objectives.
We hope to also outreach to our traditional donors to assist us achieve these objectives based on the recommendations of the Commission of Inquiry.
Sayed-Khaiyum 18 May 2008
Attorney General and Minister for Justice,
Electoral Reform, Public Enterprises and Anti-Corruption
18 May 2008