Justice Delayed

This posting was written by anonymously by lawyers reviewing the military's appointment of Justice Anthony Gates as acting Chief Justice:

By Anonymous Contributors,
Special to Intelligentsiya

Every party charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time

Constitution, section 29(3)

It is a legal, if not a general, truism that “justice delayed is justice denied.” The Canadian Charter of Rights and Freedoms contains a provision similar to that in Fiji’s Bill of Rights set out in Chapter 4 of the Constitution. In considering how long was too long the Supreme Court of Canada held that, where a trial judge had taken eleven months to rule on a motion for a directed verdict in a criminal trial, the rights of the accused under the Charter had been infringed. Over the period of eleven months there were no fewer than nineteen adjournments. The Supreme Court on appeal ordered a stay of the proceedings, which put an end to the prosecution. Courts may be somewhat slower to grant relief in civil matters, but the general principles apply. Delays in the delivery of an interlocutory ruling are less excusable, since they tend to interfere with the fair conduct of the hearing.

Fiji has since 2002 had a Code of Judicial Conduct, which is available on the Internet.. As the Chief Justice noted in his Foreword: “Since 1972 almost every major judiciary has adopted a code of conduct or ethical principles for the guidance of its judges and magistrates.” Fiji’s Code reflects the Bangalore Principles of Judicial Conduct which are now widely accepted as defining the international standards for ethical conduct by members of the judiciary. It sets out a number of principles under a series of headings. Under the heading Competence and Diligence Principle 6.3 it is provided that:

A judicial officer should perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness.

A judge who does not deliver a decision with reasonable promptness is in breach of the Code of Conduct, and also in breach of the breach of the rights of the parties under the Constitution, which he or she has sworn to uphold. The judicial oath provides:

I, AB, do swear that I will well and truly serve the Republic of the Fiji Islands, in the office of [….]. I will in all things uphold the Constitution, and I will do right to all manner of people in accordance with the laws and usages of the Republic, without fear or favour, affection or ill will. So help me God.

Under the provisions of section 138 of the Constitution a judge may be removed for “misbehaviour”. While unreasonable delay in the delivery of the occasional decision, for reasons which are explicable, would not in the ordinary course amount to “misbehaviour”, a repeated pattern of such delays, in the absence of reasonable explanation, almost certainly would.

On 7 January Commodore Bainimarama instructed the Chief Justice, Daniel Fatiaki to go on leave or be dismissed. If the office of chairperson of an independent service commission is unable to preside, the remaining members may elect on of their number to preside: section 144(1). There is provision for the appointment of an acting member by the President on the advice of the Prime Minister after the latter has consulted with the Leader of the Opposition: section 144(2). Clearly no such advice can have been and was given. However on 16 January Justice Shameem called and purported to chair a meeting of the Judicial Services Commission, the chairmanship of which under the Constitution is reserved for the Chief Justice, The same day she wrote to the President, Ratu Josefa Iloilo, recommending that her colleague and close friend, as well as another outspoken critic of the Chief Justice, be appointed Acting Chief Justice. Justice Gates was sworn in by the President, the ceremony being delayed to accommodate the presence of the military commander and Interim Prime Minister, Commodore Bainimarama. Leaving to one side the question of the legitimacy of the appointment, and whether the oath taken by His Lordship was of the same character as that which caused Justice Shameem to consign Ratu Rakuita Vakalalabure to prison for six years, later reduced by the Supreme Court to four years, after an ill-fated attempt by the Judge to intervene in the appeal, an attempt which the Supreme Court characterized as “unheard of” and “unprecedented”, the choice of Justice Gates as Acting Chief Justice was curious to say the least, having regard to the purposes of the appointment, which included introducing efficiency in the legal system.

It is curious because in the context of delays in the delivery of decisions, His Lordship is outstanding as the worst offender, having reserved in excess of forty cases for decision, either for ruling or judgment, and having failed to deliver a decision within what by any standards could be considered a reasonable time. In one such matter he adjourned for a ruling on notice in December 1999. In over half of the cases, the adjournment was for a ruling. The most recent of these was in mid 2004, but most date from the period 1999 to 2001. Decision is awaited on all of them.

A ruling frequently does not dispose of a case with finality, as does a judgment, at least so far as court of first instances is concerned. It is doubtful whether a case which has been picked up part-heard by counsel and by the presiding Judge after a period of years can be determined fairly, and this is without regard to the practical prejudice to either or both parties occasioned by the delay in the delivery of a decision, whether that be a ruling or a final judgment. Take, for example, an action for possession by the owner of a rented property. The tenant has not paid rent, or has trashed the premises, or both. The owner takes action to regain possession. The Judge sits on the decision for a period of years, while the tenant continues the failure to pay rent, or the trashing of the premises, or both. Where the proceedings are for the custody of a child , three parties are involved not least of whom is the child. The child may remain in the custody of a wholly unsatisfactory parent while the Judge sits on the file, and all parties remain in a state of uncertainty. In one matter before his Lordship the plaintiff sought an injunction preventing the payment of land rents to the recently decided head of a Fijian mataqali and yavusa. His Lordship heard this straightforward matter in early January 2000. The judgment, which ran to a mere sixteen paragraphs, was delivered towards the end of June 2005. Presumably the parties were kept out of their money in the meantime, or perhaps they simply gave up and settled it between themselves, vowing never again to return to court.

In another case in which his Lordship presided, the matter was heard on 9 November, and 15 December 2000. Judgment was delivered on 19 August 2005. On appeal, the Court of Appeal observed:

No explanation has been advanced for such an inordinate delay. To the hapless appellant it must have seemed the least straw in a case that had, by then, dragged on for fifteen years os that the six year old victim is now of woman of twenty four or five and still seeking some finality in her claim. No delay of this magnitude can be justified but a final delay of nearly five years after a hearing waiting for judgment is the antithesis of justice and deals a heavy blow to public confidence in the court system as a whole.

Does such a pattern of delay on the part of a Judge if established constitute “misbehaviour” for the purposes of removal.? It almost certainly does, and surely merits the referral of the conduct of the Judge to the Tribunal, which is to be established to look into the conduct of the Chief Justice. Failure to do so will bring the system of justice into disrepute. It has already been the subject of comment that, notwithstanding the assumption of the onerous responsibilities of Acting Chief Justice, which have led him to move the hearing of all his listed criminal trials to another Judge, and notwithstanding the substantial backlog of long outstanding decisions, the Acting Chief Justice still found time to entertain in chambers, not in open court, applications brought by the Human Rights Commission on behalf of suspended military lawyers, and the son of Interim Finance Minister, Rajesh Chaudhry, represented by Justice Shameem’s sister, and his former employee, the much criticized Dr Shaista Shameem. Why the Human Rights Commission should be representing lawyers, with the resources to instruct private practitioners, and whether it is within the statutory mandate of the Commission to do so is a question for another day. Today’s question has to be:

Quis custodet custodes?

So far as the rights of citizens under the Constitution are concerned, who does watch the watchdogs?

• The authors are practising lawyers. In the interests of themselves, their colleagues, and their clients, it is considered prudent that they should remain anonymous.