The Administration of Justice Decree 2009 appears as an extra-ordinary gazette of Thursday April 16, 2009. It is Decree Number 9.
The Decree has been backdated to come into force on April 10, 2009, the day the Constitution was abrogated. This doesn’t make any sense as for the next one month all Courts will be closed as announced by the regime this week.
Judicial Services Commission
No 16 of the Decree establishes the Judicial Services Commission (JSC) that consists of:
(a)The Chief Justice, who is to be its Chairperson
(b)The President of the Court of Appeal
(c)A legal practitioner with not less than 15 years experience to be appointed by the President on the advice of the Attorney-General
(d) A person not being a legal practitioner, appointed by the President on the advice of the Attorney-General
16 (2) states the quorum of the Judicial Service Commission shall consist of the Chairperson and one other member. That means the CJ or the Court of Appeal President; CJ and a lawyer or the CJ and a person not being a legal practitioner can make judicial appointments.
Furthermore the Chief Registrar is to the Commission’s Secretary. This means former army lawyer Ana Rokomokoti, who was appointed as a magistrate by the regime after the coup and is now the Chief Registrar will be the Commission’s Secretary.
The Decree is different from the Constitution. Section 131 of the Constitution that lawfully established the Judicial Service Commission defines the membership as : -
(a) the Chief Justice who is to be its Chairperson
(b) the Chairperson of Public Service Commission; and
(c) the President of the Fiji Law Society.
From three members the membership of the Commission has been increased to four. Most seriously, the Fiji Law Society has been totally excluded from the decision making process of appointments to the Bench. Also out is the Public Service Commission Chairperson.
Number 17 of the Decree states the Chief Justice and Court of Appeal President are appointed by the President on the recommendation of the JSC.
Under Section 132 of the Constitution the Chief Justice is appointed by the President on the advice of the Prime Minister following consultation with the Leader of the Opposition.
32(2) of the Constitution states that the appointment of judges of the Supreme Court and Justices of Appeal including Court of Appeal President are appointed by the President on the recommendation of the JSC following consultation by it with the Minister (AG and Justice Minister) and the relevant Sector Standing Committee – which has been the Justice Law and Order Committee.
Retirement age of judges
Number 21(1) of the Decree states the term of appointment of the Chief Justice, President of the Court of Appeal or a judge of the Supreme Court expires upon his or her reaching the age of 70.
21(2) of the Decree states the term of appointment of puisne judges expires upon them reaching the age of 65. But 21(3) states the above rules do not prevent the President from appointment a Chief Justice, Court of Appeal President, a Supreme Court judge, a Justice of Appeal Court or a puisne judge of the High Court, who have reached the retiring ages as stipulated in 21(1) and 21(2) from being appointed on a fixed term contract for which the applicable retiring age shall not apply.
This means that in the event Judge John Byrne or Judge Davendra Pathik are eligible for appointment. Pathik is already over 78.
On the other hand Section 137 (1) of the Constitution states that the term of appointment of a Chief Justice, the President of Court of Appeal, judge of the Appeal Court or judge of the Supreme Court expires upon him or her reaching the age of 70. 137(2) states the President of Appeals Court, a Judge of the Appeal Court or a judge of the Supreme Court may be appointed for a term or one or more sessions of the Court concerned upon reaching the age of 70.
137(3) states the term of a puisne judge of the High Court expires at the age of 65.
137(4) states that a puisne judge can be appointed for a minimum term of 4 years and maximum term of 7 years but the appointment CANNOT be extended beyond the age of 65.
23(1) of the Decree revokes all appointments made under the Constitution – pursuant to the Fiji Constitution Amendment Act Revocation Decree 2009 and Revocation of Appointment of Judicial Officers Decree 2009.
21(2) states all proceedings started in the Courts before the abrogation of the Constitution and not yet determined shall continue on , with the exceptions being 7 types of court cases outlined in 21(3).
21(3) wholly terminates the following types of Court proceedings that are yet to be determined – started in accordance with the provisions of the Constitution. This means: -
(a) Cannot challenge the validity of any Promulgations, Decrees and Declarations made between December 5, 2006 to April 9 2009, on any ground whatsoever
(b) Cannot challenge any decision of the President and the Head of the State made between December 5 2006 to April 9 2009o any grounds whatsoever
(c) Cannot challenge any decision of a Minister made between December 5 2006 and April 9 2009 on any ground whatsoever
(d) Cannot challenge any decision made by he Minister responsible for Immigration, the Permanent Secretary for Immigration, Director of Immigration & employees of the Immigration Department from December 5 2006 to April 9 2009, to remove a person from Fiji, on any ground whatsoever
(e) Cannot challenge any decision of the President, or the Executive or the Government or employees of the Government to terminate any employment (whether in a public office or not) between December 5 2006 and January 7 2007, on any ground whatsoever
(f) Cannot challenge any decision of the Judicial Service Commission made between January 7 2007 and April 9 2009 (including any challenges to the composition of Judicial Service Commission) on any ground whatsoever, or any decision made by a judicial officer made in administrative capacity, including the making of the Rules of any Court or any directions, on any ground whatsoever; and
(g) Cannot challenge any decision of the Executive or of the Government or of the employees of the Government made between December 5 2006 and April 9 2009, on the grounds of being inconsistent with or contrary to the Constitution.
This means all cases challenging the legality of the interim government have been nullified. The regime’s intention to appeal the Fiji Court of Appeal ruling that ruled that the events of December 5 2006 were illegal is no longer necessary.
Persons like Jagannath Sami (ousted Sugar Cane Growers Council CEO), Ratu Sakiusa Tuisolia (deposed CEO of Airports Fiji Ltd), FNPF ousted CEO Olota Rokovunisei and his deputy Foana Nemani to name a few can no longer challenge their terminations.
The judiciary has basically been turned upside down by the regime. On 4th January 2007, Frank Bainimarama while returning Executive Authority to the President Iloilo gave 25 reasons for executing the coup against Laisenia Qarase’s Multi-Party Government. Reason number one given by Bainimarama was “the persistent and deliberate of persons supporting the unlawful takeover of Government in 2000 in the Qarase led SDL Governments of 2001 and 2006”.
Bainimarama’s 2nd reason was “the double-speak of SDL Government in saying they supported the rule of law but freed or facilitating the freeing of coup convicts on extra-mural supervision”. He said “SDL made mockery of or justice system and fundamentally undermined the integrity of our judiciary and rule of law”.
What his regime has done through this Decree is unprecedented in Fiji’s 22 year coup plagued history. The regime has put to shame the scales of justice. They have outlawed through illegal means all legal redress cases of citizens affected since the start of the 4th coup.
Iloilo’s actions smack of hypocrisy and double-speak. In accepting the return of Executive Authority from Bainimarama, he established 11 mandates for the interim regime. The first of these was “to continue to uphold the Constitution”. Why then abrogate the Constitution following consultations with Bainimarama.
Fiji is now becoming another Burma. The RFMF is consolidating power by suppressing all fundamental rights and freedoms of its citizens.