Robert French | May 02, 2008
AUSTRALIANS enjoy one of the worlds most durable constitutional democracies.
Changes of government occur within a constitutional framework. For Australian judges, it does not matter that the government which appointed them loses office. Their legitimacy, authority, independence and responsibilities are unaffected.
Six Australian judges have, in the last year or so, found themselves in the unusual situation of being members of a court in a country whose elected government has been removed by the countrys military.
The elected government has been replaced by a ministry chosen by the military, appointed by the President, and collectively designated the "Interim Government". It is headed by the military commander, Bainimarama, as "Interim Prime Minister".
The country is Fiji. The Australians serve as part-time members of its Supreme Court. The Supreme Court is Fijis final court of appeal, occupying a position equivalent to that of the High Court of Australia. It usually sits twice a year in Suva. It decides criminal, civil and constitutional cases.
All the Australians on the court were appointed by the elected government under the Constitution nearly a year before the military takeover of December 2006. Their appointments expire at the end of this year or early in 2009.
While the Interim Government has promised democratic elections in March 2009, the current commissions of most of the Australian judges will have expired by then.
Three are Federal Court judges - Justices Ron Sackville, Mark Weinberg and me. The other three, from the NSW Supreme Court, are justices Keith Mason, David Ipp and Ken Handley.
Two questions confronted the judges after the coup. The first was whether they should continue in office under their pre-coup commissions. The second was whether, when the current commissions expire, they should accept renewed appointments from the Interim Government, if they were offered.
For my part, after discussion with colleagues, the answers are clear: yes to the first question and no to the second.
The Australian judges on the Supreme Court of Fiji have the constitutional authority to decide cases coming before that court when it sits and, to that extent, the authority and the duty to uphold the rule of law in Fiji.
By continuing to serve, they do not take any position on the lawfulness of the Interim Government. That is a matter which they might have to decide if proceedings challenging the legality of the Government were to reach the Supreme Court during the balance of their terms of appointment. That is unlikely because those proceedings are still in the lower courts and will probably be there for some time.
If by chance such a case comes before the court in one of its sittings later this year, then the serving judges will not be compromised by having been appointed by the Interim Government.
The position is different for a judge appointed by the Interim Government. Even so, it is not black and white.
Judges and courts will be necessary to maintain the basic framework of the rule of law, which is essential to the continuance of civil society in Fiji. But such an appointment may be seen as involving an implicit bargain with the Interim Government.
The judge so appointed may vow honestly and fearlessly to uphold the rule of law in accordance with his or her oath. But when faced with a challenge to the lawfulness of the government itself, such a judge could be seen to have a conflict of interest.
Can a judge decide that the government which appointed him or her lacked the legal authority to do so? The Interim Government has argued that its takeover was lawful and justified by a doctrine of constitutional necessity.
For judges appointed by that Government, there may be a perception that they have implicitly accepted that the lawfulness of the Government will not be questioned.
As a part-time judge of the Supreme Court since 2003, it has been my privilege to be able to contribute to the rule of law in Fiji and, indirectly, to the development of the legal profession and the local judiciary. That contribution has been shared with a number of senior judges from Australia and, in the past, New Zealand.
Important decisions that we made included two relating to the operation of the multi-party cabinet under the Fiji Constitution. Despite that history of involvement, I could not in conscience accept an appointment from the Interim Government.
While continuance of the rule of law is of vital importance to Fiji, the implicit bargain involved in accepting appointment to the highest court of that country by a military government, the lawfulness of which is under significant challenge, comes at too high a price.
On the other hand, if, as all interested parties hope, the Interim Government holds true to its promise and Fijis constitutional democracy is "rebooted" by free and fair elections in the first half of next year, the position will be different.
The position which I have taken is not novel. Each of the Australian judges appointed under the previous government has continued to serve on the Supreme Court. After the military takeover the judges of the High Court of Fiji, which is the principal trial court, said they would remain committed to their judicial oaths to uphold the Constitution and that the court would remain open and accessible to the public.
In a statement released on December 13, 2006, the International Commission of Jurists welcomed that commitment, describing the judiciary as "the last remaining pillar of democracy in Fiji". Some judges of the Court of Appeal, which is immediately below the Supreme Court in the hierarchy, served out their commissions after the coup, but refused to take renewed commissions under the Interim Government. Some High Court judges have taken the same position.
In February 2007, one of the architects of Fijis Constitution, Dr Brij Lal, commented on the role of expatriate judges in that country. He expressed grave concern about the departure of the Court of Appeal judges. He acknowledged the wealth of experience and expertise which expatriate judges brought and which had served Fiji well.
Their continued presence was "symbolically important as well as practically necessary". He said that Fijis legal fraternity was small and that their courts needed the regular infusion of experienced judges from outside.
Much has been written about the role of judges in countries affected by coups. There are constitutional issues of some complexity as well as issues of conscience which each individual must consider.
Australian judges involved in the Supreme Court of Fiji after the coup have had to consider the benefits gained from their continued contribution to the rule of law against the risk that they may be perceived to have made an implicit bargain with a government whose legality is in question.
The answers I have arrived at to the questions that I have posed are my own. My hope is that Fiji will return to a democratic government in the near future and that Australian judges, including me, will again be able to offer assistance in its legal and constitutional development.
Robert French is a judge of the Federal Court of Australia
Source :
http://www.theaustralian.news.com.au/story/0,25197,23631157-16953,00.html
Photo :
http://www.steindls.com.au/images/main/hammer.jpg