Misleading report
Fiji Sun 11/7/2007 7:25:44 AM
In Dr. Brij Lal's series of articles entitled "The process of political readjustments - the aftermath of the 2006 coup," he made a bad error of fact in relation to myself as Chief Justice and two other judges concerning the abrogation by the military of the 1997 Constitution on 29 May 2000.
Dr. Lal wrote"Another institution similarly embroiled in controversy after the coup was the judiciary. The causes of the division in it go back to the aftermath of George Speight's attempted coup in May 2000. Differences arose in the judicial ranks over the Chief Justice Timoci Tuivaga's advice supporting the military's proposal to abrogate the 1997 Constitution to resolve the impasse. In this stance he was reportedly supported by two fellow judges Michael Scott and Tuivaga's successor as Chief Justice, Daniel Fatiaki."
The above statement is misleading in that I gave no such advice as alleged by Dr. Lal. How he attributed to me something that never occurred is most surprising from a normally perceptive and careful political and social analyst.
The military's action regarding the 1997 Constitution which was entirely unilateral caught everyone by surprise. The chronology of events during the May 2000 political crisis does not bear out the unfortunate statement made by Dr. Lal. If I may say so, it is always in the interest of factual reporting that historical records should not be rehashed for whatever reason by public commentators.
With all due respect to the Chief Justice Emeritus; How, When and Where the historical record is rehashed, is simply not his prerogative to make. Nor is he in any position to dictate how history views his derailed train of decision making.
Amnesty International article contradicts Tuivaga's recollection of history:
Chief Justice Timoci Tuivaga, who had blamed the Constitution for Fiji’s ongoing political instability and urged substantial amendments, retired in September. He was replaced by Daniel Fatiaki who was appointed Chief Justice despite controversy over his role, with Timoci Tuivaga, in the drafting of post-coup emergency decrees which purported to abolish the Supreme Court and the Constitution. In November, the government nominated Timoci Tuivaga for the International Criminal Court. The Chief Justice and non-governmental organizations in Fiji had supported Indo-Fijian High Court judge Nazhat Shameem’s nomination.
A reknown legal mind, the late Sir Vijay Singh raises serious questions in an article published in the Journal of South Pacific Law, regarding Tuivaga's decisions after the 1987 coup in Fiji. This is an excerpt:
A DIMINISHED JUDICIARY*
By Sir Vijay R Singh**
Despite the Chief Justice Sir Timoci Tuivaga's explanations, judges, lawyers and lay persons at home and abroad remain profoundly perturbed at his enthusiastic engagement in politically charged extra-judicial business. Judicial independence is far too important a public interest issue not to be publicly discussed when the occasion demands, lest silence induced by tact or timidity be misconstrued as acceptance of the unacceptable. A judge who strays beyond his judicial functions cannot escape public scrutiny and criticisms of his extra-judicial activities.
In 1987, all superior court judges had courageously demonstrated their commitment to uphold the constitution and the rule of law and endured harassment of all kinds. Judge Kishor Govind was imprisoned at Naboro and Judge Rooney held under house arrest for days. All eventually resigned rather than serve under a military regime. Sir Timoci Tuivaga CJ was one such judge but although he was later recalled to the bench, we lost most of the others for good. They deservedly stood high in universal pubic esteem. But sadly, the CJ's recent conduct has caused much dismay. Sir Timoci advised the President on the Constitution's provisions that he could invoke to dismiss the Coalition government. The President acted accordingly.
At issue is not the correctness of the advice -- although that, too, is highly questionable -- but the propriety of judges acting at all as the President's legal counsel. The entirety of the legal profession in the public and private sector, and talent abroad, was available to the President. The severely denounced decision of Australian Chief Justice Garfield Barwick to advise Governor General John Kerr how to dismiss Prime Minister Gough Whitlam in 1975 should have been a salutary signal to any judge not to follow a disreputable precedent. But the Chief Justice did just that, and he cannot evade the consequential commotion.
An even graver grievance concerns the CJ's draft of a decree for the military to promulgate that purported to re-establish the judiciary, and in the process, also to abolish the Supreme Court. This was far from being a benevolent involvement, as Sir Timoci would like us to believe, because implicit in his drafting of the decree were hazardous assumptions of great constitutional and political significance. Firstly, that the military had at that point in time acquired the authority in law to rule by decree, and secondly and accordingly, the judiciary and the constitution from which it drew its authority, went out the window together when the military claimed to have 'wholly removed' the constitution.
Also, for about a hundred years the Privy Council in London had been our final court of appeal and, after the establishment of the Fiji Court of Appeal, the highest of our three superior courts structure. Until, of course, a lieutenant colonel deposed the Queen in 1987 and thereby severed our access to Her Majesty's Privy Council.
To fill the void, the Supreme Court of Fiji was created but the decree Sir Timoci helpfully draft abolished the Supreme Court. Neither the military nor the CJ has claimed paternity of this eccentricity -- that amputation of the highest of our courts was essential surgery to successfully address our afflictions, the foremost of which then were the safe release of the hostages and the restoration of law and order.
The military, for its part, sought to distance itself from this most peculiar prescription for the treatment of our ills. It published a statement two days after the decree, assuring all that "the judiciary has not been tampered with" (Sunday Times 11 June p.25).
Weighty questions inevitably arise. Did the military make the incorrect statement because it did not know that the CJ drafted decree had in fact abolished the Supreme Court? And that thereupon Lord Cooke, Sir Gerard Brennan, Sir Moti Tikaram, Sir Keith Mason and Mr Justice Toohey had been summarily dismissed? Also, that the CJ had installed himself as a judge of the Court of Appeal?
The military's unawareness of these and other aspects of the decree may explain its incorrect statement, but that excuse will inevitably transport the CJ to even a lower and more perilous perch. Was he less than frank with Commodore Frank Bainimarama and kept him in the dark of the decree's important provisions?
Whose agenda required the Supreme Court's abolition -- the military's or Sir Timoci's opposition to the Court, and why? If the military's, why did the CJ not seek the Law Society's support to preserve the long established judicial system, instead of completely ignoring the legal profession while he collaborated with the military?
Did Sir Timoci's adventures cause or contribute to the resignations of Justices Jai Ram Reddy as President of the Court of Appeal and Ratu Jone Madraiwiwi as a High Court judge? And might we not lose more judges who find the CJ's modus operandi unacceptable, as shown up in Judge Anthony Gates's ruling last week in a matter when Sir Timoci tried to have a case in which he is a defendant assigned to a judge of his selection?
And crucially, what, in Sir Timoci's view, is the source of his present claim to be the Chief Justice? Is it the Constitution that he was sworn to uphold, or the military decree that he obligingly drafted to restore his and other judicial offices? The two propositions are mutually exclusive; they cannot reside under the same roof at the same time. Sir Timoci cannot escape these and other disquieting questions -- all products of his questionable conduct in office.
In his typically understated fashion, Peter Knight, then Law Society President, had observed: "The Chief Justice had other options open to him." Expediency, arbitrary decision-making, acting as the executive's legal counsel and the military's legal draftsman were not in Mr Knight's contemplation. Sic transit gloria.
*This article first appeared in the Fiji Times of October 17, 2000.
** Sir Vijay R Singh
Sir Vijay Singh's read law in London and is a Barrister of the High Courts of England, Australia and Fiji. He was a Minister in Ratu Mara's pre and post-independence governments and also Attorney General and Speaker of the House. Sir Vijay is presently in private practice in Suva.
Even the Wikipedia article on Sir Timoci Tuivaga, actively corrects his own account of the events. The excerpt:
Coup controversies
Tuivaga upheld the independence of the judiciary in the wake of the two military coups that rocked Fiji in 1987. His actions in a later coup in 2000, however, generated much controversy. Together with two other judges, Michael Scott and Daniel Fatiaki (who later succeeded him as Chief Justice), Tuivaga advised the then-President, Ratu Sir Kamisese Mara, to abrogate the Constitution, as requested by the Military. Mara refused and resigned on 29 May.
An Interim Military Government, headed by Commodore Frank Bainimarama took power, abrogated the Constitution, and promulgated the Administration of Justice Decree, which Tuivaga had drafted. This decree abolished the Supreme Court, made the Chief Justice the President of the Appeal Court (of which, according to the constitution, he had previously been barred from membership). Another decree extended the retirement age of the Chief Justice from 70 years to 75. Fiji Law Society President Peter Knight condemned Tuivaga's actions, saying, "The eyes of the profession, the nation and the world are upon the judiciary.
It cannot be seen to openly condone criminal activity. It should as a matter of record that it will continue to occupy and function in its judicial role in the same uncompromising manner as it had done prior to 19th May." (These changes to the judiciary were subsequently reversed by a High Court decision to reinstate the Constitution on 15 November 2000. This decision was upheld by the Appeal Court on 1 March 2001).
Tuivaga was subsequently sued by members of the deposed government of Prime Minister Mahendra Chaudhry for his role in abrogating the constitution, which all judges were bound by oath to uphold.
In an interview with the Daily Post on 15 June 2000, Tuivaga defended his role, saying it was not an endorsement but a practical acknowledgement of "reality." "While a de facto government is in place it is impossible for me as Chief Justice not to acknowledge its actual existence as a matter of political reality," he said. The Interim Military Government, which he called "the only viable alternative government," needed to be recognized, he said, given the "situation triggered by the state of insurrection in the country which so far has proved insidiously intractable".
These changes to the judiciary authorized by the decrees that Tuivaga had drafted were subsequently reversed by a High Court decision to reinstate the Constitution on 15 November 2000. This decision was upheld by the Appeal Court on 1 March 2001. That year, he turned 70, the retirement age mandated by the restored Constitution. On 1 August 2002, Daniel Fatiaki succeeded him as Chief Justice.
Failed ICC candidacy
Following his retirement as Chief Justice, the Fijian government nominated Tuivaga as Fiji's candidate for a position on the new International Criminal Court (ICC). His role in the 2000 coup came back to haunt him, and the Fiji Law Society strongly criticized his nomination. In what the Fijian government saw as a humiliation, he was forced to withdraw his nomination during the balloting on 9 February 2003, when Samoan candidate Tuiloma Neroni Slade outpolled him.
Reconciliation and Unity Commission
In May 2005, Tuivaga spoke out in favour of the government's proposed Reconciliation and Unity Commission, which would, if established, have the power to compensate victims of offenses related to the 2000 coup, and amnesty to its perpetrators, subject to presidential approval. Tuivaga cautioned, however, that the workability of the arrangement would depend on the good will of the parties involved.
On 26 May 2005, the Rev. Akuila Yabaki of the Citizens Constitutional Forum expressed concern at reports that Tuivaga might be appointed to chair the proposed commission, reports downplayed by both Prime Minister Laisenia Qarase and Opposition Leader Mahendra Chaudhry.
Under investigation
In the wake of the military coup which deposed the Qarase government on 5 December 2006, Interim Attorney-General Aiyaz Sayed-Khaiyum announced on 22 January 2007 that there would be an inquiry into allegations concerning the role of the judiciary in the events of 2000. It was reported that Tuivaga might be subject to the inquiry. [1] In a letter to the Fiji Sun on 23 January, Tuivaga expressed surprise, saying that the Constitution of Fiji makes no provision for investigating retired members of the judiciary.
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