March 16, 2012

Anthony Gates: The Constitution is Indestructible

As paraphrased from Prof Anne Twomey's paper, the now current illegal and treasonous “Chief Justice” Anthony Gates gave a ringing endorsement of the indestructibility of the Constitution in Koroi v Commissioner of Inland Revenue [2001] FJHC 138, pp 10-11 where he said:

"The American Constitution has been amended on several occasions during its long history, but for that lengthy period of its existence it has suffered surprisingly few amendments.

The Constitution's very indestructibility is part of its strength. It is not possible for any man to tear up the Constitution. He has no authority to do so. The Constitution remains in place until amended by Parliament, a body of elected members who collectively represent all of the voters and inhabitants of Fiji. During a period of dire emergency it may endure suspension, if such a suspension will ultimately see the Constitution supported, and ensure its re-emergence...

Even in the case of a Glorious Revolution, the provisions in the constitution for constitutional amendment must eventually be followed. The doctrine of necessity may come to the aid of such a revolution in its earliest days. But the Constitution never goes away, and can never be dismissed or abrogated in a Decree or Proclamation.

In this respect, it has the quality of the Holy Books. The books themselves may be torn up, but the precepts and the teachings are indestructible, memorised by their adherents. The man lying tortured on the rack may be forced to say whatever his torturers may wish him to say, but his inner thoughts remain unchanged. The fundamental law represented in a Constitutional document may only be changed in accordance with that Constitution. The Constitution provides for its own mutation. Usurpers may take over as they have in other jurisdictions, and in some cases rule for many years apparently outside of, or without the Constitution. Eventually the original order has to be revisited, and the Constitution resurfaces... Even the Glorious Revolution must eventually be tamed by the Constitution. For the courts cannot pronounce lawfulness based simply on the will of the majority. Nor can lawfulness be accorded to the tyranny of the mob. That way leads to the guillotine. Such tyranny lacks universal morality and the courts will not assist usurpers simply because they are numerous, powerful, or even popular.

A proper role for the courts when extra-constitutional change occurs is to pronounce on matters of necessity, where actions have been taken whilst accompanied with sufficient justice and rightness... Even then the supreme law can only be changed securely by traversing the path provided for such change within the Constitution. Decrees or proclamations purporting to abrogate the Constitution, or to act in conflict with it, are of no effect and are unlawful. They are made without the scrutiny, debate and approval of parliament. The people will only accept laws imposing taxes, imposts, penalties and punishments upon them if such imposition had the approval of their elected representatives in Parliament."

No comments: