1. Further to our Alert on the Abrogation of the Fiji Constitution and the resulting termination of all judicial appointments, the new Fiji Government has issued a decree relating to the administration of justice. As with our earlier Alert, this one is practically, rather than constitutionally, oriented. We do not comment on the legality of this or other Decrees made under the “new legal order”. That is not a matter we can predict. A comparative table between the “old” and “new” regimes is set out below.
The old v the new
2. The Decree sets up a judiciary similar in appearance to the one it has replaced with three levels of superior courts. Appointment to the Magistracy is also provided for. However, the legal status of Magistrates’ Courts and other inferior courts (for example, the Employment Relations Tribunal) is not clear. Although such courts, created by statute as opposed to the Constitution, are apparently still in existence and continue to operate, the transitional provisions of the Decree could be interpreted to mean that they too have been “revoked”. It is not clear what is intended.
3. Of more concern are other aspects of the transitional provisions. They take a (predictably) heavy-handed approach. They terminate any litigation, which was previously before the Courts challenging the legality of the 2006 coup. They also ban any legal challenges to the April 2009 one and any legislative instrument made after the coups.
4. However, the transitional provisions go further. They also terminate (among others) any proceedings, “of any form whatsoever” challenging events between the December 2006 coup and the April 2009 coup, including proceedings:
(a) to challenge any decision made by a Minister of the interim Government
(b) to challenge any decisions made by the Minister for Immigration and officials of the Department
(c) to challenge any decision by the State made between 5 December 2006 and 7 January 2007 to terminate the employment of any State employees.
5. The language of the transitional provisions does not expressly state that the proceedings cannot be re-issued or that new proceedings on those grounds cannot be brought. However, if the new courts interpret them that way, (a) above could have serious commercial consequences. For example, any business that has challenged, or may in future need to challenge, a Ministerial decision of the Interim Government by way of judicial review, or even statutory appeals to the Court under ordinary legislation, is now shut out. Ministerial decisions may have been made unlawfully which have yet to emerge or affect citizens or businesses. Ministers, of course, do not just make constitutional or coup-related decisions. They make ordinary administrative decisions affecting the daily lives of ordinary citizens and corporations and the future planning of business.
6. Clearly any judges who accept appointment under the “new legal order”, and who are required to take an oath to uphold the Decree, must logically consider themselves bound by the laws under the new legal order and would presumably decline to hear any such challenge. The new Chief Registrar has in any case issued a notice indicating that any proceedings involving any of the banned claims will not be accepted for issue.
Termination of judicial appointments and re-appointment
7. The Revocation Of Judicial Appointments Decree 2009 on 10 April 2009 terminated the appointments of all judges and magistrates.
8. As of today’s date (12 May 2009) no appointments have been made to the High Court, Court of Appeal or the Supreme Court. The High Court remains closed, although it is possible to file papers at the Registry.
9. The only judicial appointments made have been to the Magistracy with the re-appointment of the Chief Magistrate and seven other magistrates. The Magistrates’ Courts are currently only hearing criminal matters.
10. Subject to the transitional provisions terminating proceedings described above in paragraphs 3 and 4, any proceedings pending and not determined by the Courts prior to the abrogation of the 1997 Constitution are deemed to continue on under Decree.
11. However, it would be of concern to businesses with litigation still before the Courts that cases that have been heard but upon which a judgment has not been pronounced may have to be re-litigated if the original judge or magistrate is not reappointed.
12. The full consequences of the termination of the courts, all judicial appointments and challenges to the acts of the Interim Government between 5 December 2006 and 9 April have yet to be seen.
13. However, in the immediate term, the situation remains uncertain for businesses that have cases currently pending before the Courts, or that have current claims that need to be litigated.
14. Where early resolution is necessary or desirable, businesses may have to consider alternative dispute resolution (“ADR”) mechanisms such as mediation and commercial arbitration.
15. Please contact Jon Apted (on direct dial +679 322 1812 or firstname.lastname@example.org) or Nicholas Barnes (on direct dial +679 322 1843 or email email@example.com) if you have any queries regarding on-going or prospective litigation or wish to discuss ADR alternatives.
COMPARATIVE OF OLD AND NEW REGIMES
|Issue||1997 Constitution regime||New regime||Comment|
|Independence||Independence protected by Constitution (entrenched legislation)||Independence protected by s.4 of the Decree||Independence is legislated but not entrenched. Under the new regime this independence could be removed or affected by a further Decree.|
|Courts structure||No visible change to the previous structure of (in ascending order) High Court; Court of Appeal; Supreme Court|
|Jurisdiction, general administration, rights of appeal||Largely unchanged except no Court now has jurisdiction to accept, hear and determine or entertain any challenges to the abrogation of the 1997 Constitution or the validity of any Decrees made by the President since 10 April 2009|
|Qualifications for judicial appointment||At least 7 years’ practice in Fiji or holding of high judicial office in Fiji or other prescribed country||Holding of judicial high judicial office in Fiji or another prescribed country or at least 10 years’ post-admission legal or academic experience in Fiji or in another prescribed country||The level of post-admission experience required of a judge is increased by three years and the required post-admission experience now includes legal or academic experience|
|Judicial Service Commission (JSC)||Appointed by the President and comprised of:• Chief Justice• Chairman of Public Service Commission
• President of Fiji Law Society
|Appointed by the President and comprised of:• Chief Justice• President of Court of Appeal
• A lawyer with at least 15 years’ post-admission practice to be appointed on the advice of the Attorney-General
• A non-lawyer appointed on the advice of the Attorney-General
|Previously the JSC included the President of the Fiji Law Society, a member whose appointment the government could not, directly or indirectly, control. The Law Society President’s position on the JSC has now been removed, in favour of a lawyer appointed on the advice of the Attorney-General, who also advises on the appointment of an additional “lay-member”.|
|Quorum||Majority of 2 out of 3||The Chief Justice and one other (of the three members)|
|Appointment of Judges||The Chief Justice is appointed by the President on the advice of the Prime Minister after consultation with the Leader of the Opposition. All other superior Court Judges are appointed by the President on the recommendation of the JSC following consultation by it with the Attorney-General and relevant Parliamentary Committee||• The Chief Justice and President of the Court of Appeal are to be appointed by the President following consultation with the Prime Minister and Attorney-General.• Until the President makes appointments to the JSC and directs that it should commence its functions, all appointments to other judicial offices are to be made by the President in his discretion• Thereafter these judicial officers are appointed by the President on the recommendation of the JSC after it has consulted the Attorney-General|
|Appointment of other Judicial officers||Appointments by the JSC after consulting the Prime Minister and Leader of Opposition||Appointments by the JSC after consulting the Prime Minister and Attorney-General|
|Retirement||The Chief Justice, Court of Appeal and Supreme Court Judges retire at the age of 70, and High Court Judges at 65||The same retiring ages are provided for, but now fixed term contracts after the retiring age are permitted|
The information and opinions in this Legal Alert are for general information purposes only. They are not intended as specific legal or other professional advice and should not be relied upon or treated as a substitute for specific advice. Munro Leys can accept no responsibility for any loss arising from reliance on the general information contained in this Legal Alert.