Special to Intelligentsiya
Yesterday’s Fiji Sun of 5 March purports to publish extracts of the minutes of the 15 January 2007 meeting of the Judicial Services Commission (“the Commission”) chaired by Justice Nazhat Shameem under Victor Lal’s byline. It was this meeting that appointed Justice Gates as Acting Chief Justice. Assuming for the sake of argument it is an accurate reflection of the proceedings, several issues need to be considered.
It was the first meeting of the Commission since the forced removal on leave of Chief Justice Fatiaki by the military on 2 January 2007. Yet according to these Minutes, Justice Shameem contented herself with dealing with the need to appoint an Acting Chief Justice in the place of Chief Justice Fatiaki. His arbitrary removal some two weeks before appears to have made little impression on her, not to mention its implications for the rule of law and the independence of the judiciary. The only passing reference she makes to the latter is that the next meeting (presumably with the ACJ present), could then decide whether to ask the CJ to return. She appeared more concerned by the need for a temporary replacement than with the illegality of the Chief Justice’s removal.
Justice Shameem justified her convening and chairing of the Commission on the basis of an opinion tendered by one Gerard McCoy QC. Justice Shameem is as familiar with the provisions of the Constitution as any constitutional lawyer. She ought to have known there was no specific provision in the Constitution authorizing her to chair the Commission meeting in the Chief Justice’s absence. The point is that nowhere in the Constitution does it enable the senior substantive Puisne Judge to preside over the Commission in the absence of the Chief Justice. McCoy’s opinion can only have reached that conclusion by either relying on the common law and/or, reading into the Constitution various inferences to achieve a strained result. For Justice Shameem to proceed in reliance on Gerard McCoy’s opinion reflected on her judgment. For she was doing so in the knowledge that her senior colleague had been removed from office by force. Nonetheless, she proceeded undeterred and apparently unconcerned by the aid and comfort she was giving the usurpers, which was sealed with a telephone call to the Interim Attorney-General.
According to these purported Minutes, Justice Shameem was supported by the President of the Fiji Law Society, Devanesh Sharma. If the minutes are to be taken at face value, he apparently never raised the issue of the Chief Justice’s removal by the military. Neither did he see it fit to question the propriety of Justice Shameem’s actions in presiding over the Commission meeting, but readily accepted the McCoy opinion justifying Justice Shameem’s participation. Mr Sharma appeared only too ready to endorse the appointment of either Justices Gates or Shameem as Acting Chief Justice. It did not appear to concern him that this had been precipitated by the actions of the military. That any endorsement of an Acting Chief Justice would amount to collaboration appears to have been lost on him.
The purported Minutes of the Judicial Services Commission meeting of 15 January 2007 make for interesting reading. For someone not aware of the setting, they seem harmless enough. However, it is this context that conveys the enormity of the Commission’s actions.
In one brief moment, before the constitutionality of events post 5 December 2006 had yet to be determined, the senior substantive Puisne Judge and the President of the Law Society agreed to an acting replacement of the illegally suspended Chief Justice, with the concurrence of the invalidly appointed Chairman of the Public Service Commission. With Justice Gates acceptance of the Acting Chief Justiceship, the complicity of some on the bench and at the bar was complete.