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Fiji Law Society v Judicial Services Commission, ex parte Gates [2008] FJHC 395; HBJ008.2007S (27 November 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


JUDICIAL REVIEW NO. HBJ0008 OF 2007S


IN THE MATTER of an Application by FIJI LAW SOCIETY
for leave to apply for Judicial Review and for Stay under
Order 5 rule 3(2) of the High Court Rules 1988


AND IN THE MATTER of the decision of the Judicial Services Commission
dated 15th January 2007 to recommend to Ratu Josefa IIoilovatu
Uluivuda that the interested Party be appointed
Acting Chief Justice of Fiji


AND IN THE MATTER of the decision of Ratu Josefa IIoilovatu Uluivuda
to appoint the Interested Party as Acting Chief Justice of Fiji


BETWEEN:


THE FIJI LAW SOCIETY
APPLICANT


AND:


THE JUDICIAL SERVICES COMMISSION
FIRST RESPONDENT


AND:


HIS EXCELLENCY RATU JOSEFA ILOILOVATE ULUIVUDA
SECOND RESPONDENT


AND:


RISHI RAM
THIRD RESPONDENT


AND:


THE HONOURABLE JUSTICE NAZHAT SHAMEEM
FOURTH RESPONDENT


AND:


AIYAZ SAYED KAIYUM
FOURTH RESPONDENT


AND:


THE HONOURABLE JUSTICE ANTHONY
HAROLD CUMBERLAND THOMAS GATES
INTERESTED PARTY


Date of Hearing: Monday, 24th November 2008, Suva
Date of Judgment: Thursday, 27th November 2008, Suva


COUNSELS:
APPLICANT: Mr S. Ram
RESPONDENTS: 1st, 2nd, 3rd and 5th: Mr A. K. Narayan
RESPONDENT 4th: Mr C.B. Young
INTERESTED PARTY: Mr V. Maharaj


JUDGMENT


Introduction


1. On 15 January 2007 a meeting was held in the chambers of Shameem J at the High Court. It was attended by Mr Devanesh Sharma and Mr Rishi Ram. The meeting was a meeting of the Judicial Service Commission. The decision of that meeting was to recommend to the President that Gates J be appointed acting Chief Justice.


2. The decision of the meeting was conveyed to His Excellency the President of Fiji by letter from Shameem J. On 16 January 2007, the President appointed Gates J to be acting Chief Justice.


Application for judicial review


3 An application for leave to apply for judicial review of these two decisions was filed on 16 April 2007. That application was accompanied by an affidavit purporting to verify the facts. It also was accompanied by a document entitled Statement of Facts.


On 12 June 2007, an inter-partes Motion for leave to judicially review and for a stay of the decision was filed. The Applicant for judicial review was the Law Society of Fiji.


4. The respondents to the application are respectively:


(1) The Judicial Service Commission


(2) His Excellency the President of Fiji


(3) Mr Rishi Ram, acting as Chairman of the Public Service Commission


(4) Shameem J


(5) The Attorney General


5. In addition, Gates J was joined as an "interested party". All persons who were joined as parties to the proceedings were represented by counsel. The Law Society was also represented by counsel.


6. The application presently before the court is the application for leave to apply for judicial review.


A short history


7. To understand what this case is about and how it came to be that it was necessary to call a meeting of the Judicial Service Commission requires some examination of the history of the matter. The introductory component of that history been taken from the judgment of the High Court (Gates ACJ, Pathik & Byrne JJ) in Qarase v. Bainimarama [2008] FJHC 241. The passage is as follows:


[32] On 7th March 2006 the incumbent President, Ratu Josefa Iloilovate Uluivuda, was re-appointed for a further term of 5 years as President of Fiji. His Excellency's appointment was made in conformity with section 90 of the Constitution. Throughout the circumstances of this case the President remained constitutionally in office.


[33] Following a General Election in May 2006 the plaintiff Mr Qarase was re-elected to Parliament and was re-appointed as Prime Minister. He led a government comprising 36 members of his own party, the SDL, and two independent members, thereby commanding the confidence of the House of Representatives, with a majority of 38 members in a 71 seat House.


[34] For the previous 18 months or so onwards prior to 5th December 2005 the military and the Government of the day were descending into a relationship of increasing ill will and conflict. Matters grew worse following the formation of the new Government in May 2006. Public and private exchanges between the Commander of the RFMF on the one hand and the Prime Minister on the other were both hostile and acrimonious.


[35] In late October 2006 the RFMF issued a confidential paper with a series of requests to the Government of Mr Qarase.


[36] In the paper the RFMF requested a "public declaration by the Government that the events of 2000 was illegal." There had been a civilian coup in Fiji in 2000. The military wanted the Ministry of Reconciliation to undertake an education programme to inform the public of this fact, and the removal from public office of all those who were involved and implicated. It wanted this education so that the people would respect the rule of law and understand the standard of leadership required of future leaders.


[37] The army wanted the withdrawal of 3 bills, the Reconciliation Tolerance and Unity Bill, the Qoliqoli Bill and the Land Tribunal Bill. It stated the bills were unconstitutional, controversial and extremist in nature, and would "not bring forth peace and stability that we seek as a young nation." It was said the bill had the potential to create conflicts in the indigenous race. The bills were "deviously constructed to capture the minds of the Fijians that it is ideal for them. In reality, it is a quest to buy votes for political expediency and supremacy."


[38] It wanted the investigation against the Commander completely withdrawn. The investigations by the Commissioner of Police were viewed as an attempt to weaken the institution, and continuation of the May 19th 2000 plot by rebels in turn continued by the SDL Government.


[39] It sought the termination of the contract of the Commissioner of Police, Mr Andrew Hughes. It claimed Mr Hughes had compromised his position under political pressure. Foreign influences had been at work. "His office is no longer neutral and impartial in handling state affairs. Hughes unfortunately played a part" it said "in the strategic plan to remove the Commander RFMF in his absence."


[40] It alleged that Hughes was "the front of the Australian Government in its ground strategy in neo-colonialism, weakening the RFMF and had the potential to cause instability in Fiji." The RFMF sought his immediate removal, so as to restore trust and co-operation between the RFMF and the Police.


[41] It sought reconsideration of the arming of the Police Tactical Response Unit. This was considered an unhealthy development where Rules of Engagement would not be clear. It was stated this was another instance of foreign influence, along with Australian police uniforms, all said to be part of the Australian strategy of total domination over the country.


[42] The Army said there was to be no foreign military or police intervention, and pointed out that it was a clear violation of independence and sovereignty. The RFMF was intact and strong. The Foreign Minister's statement adopting the Biketawa Declaration was an option neither advised nor acceptable. It was rather a catalyst to instability.


[43] The RFMF sought the removal of the commercial arm of the Native Land Trust Board. The NLTB must focus on its core functions and secure the medium and long term stability of land leases.


[44] There were long standing issues the RFMF had with the Ministry of Home Affairs which were neither responded to nor addressed. These concerned force structure, non-payment of allowances [JE8], Ration allowances, promotions, and the development of operational relationships with other forces.


[45] Finally the RFMF stated the greatest threat to Fiji's national and economic security was "lack of good governance under the present cloak of democracy." It was quite wrong to blame long standing economic woes on the military's stand off with Government. "Under that cloak, corruption and abuse of office, economic downturn and uncontrolled debts, foreign influence and discriminatory policies are becoming the order of the day. These have slowly destroyed the nation and enslaved the people and the country to a poor state."


[46] On Friday 27th October 2006 the Prime Minister indicated the Government would not resign. On 3rd November 2006 the Commissioner of Police announced that the Commander would be investigated for sedition.


[47] Efforts were made through the Great Council of Chiefs to try to resolve the impasse. A meeting was also organized to take place in Wellington, New Zealand on 29th November 2006 between the Prime Minister and the Commander. They met as arranged. On Saturday 2nd December 2006 a meeting took place in Suva between the President, the Vice-President, the Commander, and later between the Vice-President and the Prime Minister. Meanwhile on the same day Foreign Ministers of the Pacific Islands Forum met in Sydney.


[48] In the early evening of Monday 4th December 2006 the Prime Minister came by car to attend the President. Eventually he came away from the front gates of Government House without seeing him. On the Prime Minister's view he was treated discourteously by the soldiers on duty.


[49] By the morning of Tuesday 5th December 2006 the RFMF had taken control of the streets of Suva. The Commander assumed executive authority of the State. Later that evening an Extraordinary Fiji Gazette notice was issued in which the Commander stated that:


"At approximately 1800 hours tonight Tuesday 5th December 2006 I have with much reluctance assumed executive authority of the country and henceforth declared a State of Emergency."


[50] The Gazette notice stated: "The primary objective of the Interim Military Government is to take the country towards good governance, rid us of corruption and bad practices and at the same time provide the well being of Fiji and its people at the earliest possible opportunity." The normal day to day affairs of the country were to continue as usual.


[51] On the same evening the Commander gave an address to the nation concerning the Public Declaration of Military Takeover. In it he referred to the deteriorating state of Fiji and that the Government was "unable to make decisions to (save) our people from destruction."


[52] He explained about the security situation, the checkpoints, patrols, and that police and army would work together to ensure everybody's security. He went on to refer to the Government Ministers and said:


"All the Ministers from the last government have been given as from tomorrow one month to vacate their government quarters and return all government property in their possession. They will be paid a severance pay of one months pay. There is no intention on the Military to arrest these Ministers. We only ask that they live their daily lives and not interfere in the process that is now taking place."


[53] He said:


"RFMF over the years have been raising security concerns with the Government, in particular the introduction of controversial bills, and policies that have divided the nation now and will have very serious consequences to our future generations."


[54] He continued:


"These concerns have been conveyed to the Prime Minister in all fairness and sincerity with the country's interest at heart. Apparently, all RFMF concerns were never accepted with true spirit. All my efforts to the government were to no avail. Instead, they turned their attention on the RFMF itself. Despite my advice, they tried to remove me and create dissension within the ranks of the RFMF; the institution that stood up and redirected the Nation from the path of doom that the Nation was being led to in 2000. Qarase has already conducted a 'silent coup' through bribery, corruption and introduction of controversial Bill."


[55] He said it was clear to him that the "Government has no intention of solving this crisis." On his visits to the President over the preceding days His Excellency had expressed concern over the crisis point reached. The Commander referred to Presidential powers to dismiss a Prime Minister under section 109(1) of the Constitution in the President's own judgment, should exceptional circumstances exist. He then said he was stepping into the President's shoes since His Excellency appeared to have been blocked from exercising his constitutional powers by those surrounding him or who were putting undue pressure on him.


[56] He explained:


"This is indeed an unusual and exceptional situation, which was not envisaged by the framers of the Constitution and which requires special steps to preserve the Constitution and maintain the integrity of the Nation-State of Fiji."


[57] He stated he would now dismiss the Prime Minister and appoint Dr Jona Baravilala Senilagakali as the Caretaker Prime Minister to advise the dissolution of Parliament. "Following the dissolution of Parliament", he said "an announcement will be made regarding the formation of a caretaker or interim Government to steer Fiji. After a proper census and electoral system is in place the caretaker Government will facilitate democratic national elections as provided for under our Constitution."


[58] He said the takeover would not be permanent.


"When the country is stable and the Electoral Rolls and other machineries of Elections have been properly reviewed and amended, elections will be held. We trust that the new government will lead us into peace and prosperity and mend the ever widening racial divide that currently besets our multicultural nation."


[59] Before concluding he gave an assurance that the rights of all citizens of Fiji were protected and that they would respect the international conventions on Human Rights and humanitarian law He added:


"I plead to the international community to first learn and understand the situation here in Fiji before you take action"


[60] Mr Senilagakali duly signed an advice to the President for dissolution of Parliament on the 6th December 2006. The self-proclaimed President, Commodore Bainimarama acknowledged the advice and gave the order for dissolution.


[61] In his pleadings Mr Qarase stated "The next morning the Prime Minister escaped from Suva..." The defendants claim he left Suva that day, 6th December 2006, only to return to Suva on the 4th October 2007. In his evidence Mr Qarase said he returned on 1st September 2007.


[62] On 22nd December 2006 the Bose Levu Vakaturaga, or Great Council of Chiefs, met in Suva and issued a statement. The Great Council has no parliamentary functions. But in addition to its Fijian Affairs Act functions the Great Council, under section 90 of the Constitution following consultation with the Prime Minister, is the appointing body for the office of President, Fiji's Head of State.


[63] In its statement it advised the President "to continue to personally exercise executive authority in accordance with the Constitution of the Republic of the Fiji Islands in his official capacity."


[64] The Great Council recognised that in view of the action of the military the Government of Mr Qarase had been rendered ineffective and incapable of discharging its constitutional responsibilities. It said:


"In the circumstances, there being no other viable alternative, the GCC regretfully advises the Prime Minister, Laisenia Qarase to tender his resignation to the President, Ratu Josefa IloilyvateUluivuda."


[65] The Great Council recommended the President "being the repository of executive authority" to appoint an interim administration and to return Fiji to early elections within a stipulated time frame. It wanted the key stakeholders to enter urgent discussions in good faith to work constructively towards finding a legal solution to restore democracy. It urged negotiations with a view to an Accord to facilitate the resignation of the legal government and for a road map to take Fiji forward.


[66] The crucial premise, it referred to, was "the need to protect and preserve the public interest." It made recommendations for the appointment of an Interim Government of National Unity, and a Privy Council, and foreshadowed the passing of necessary decrees.


[67] The Great Council urged the Government to prepare an appropriate and fair formula for compensating all MPs who were members of both Houses of Parliament. It suggested a Commission of Inquiry to investigate credible allegations of corruption and a working party "to review the elements that contributed to the current political crisis."


[68] On 4th January 2007 Mr Senilagakali tendered his resignation as Caretaker Prime Minister to the Commander. In the afternoon of the same day the Commander purported to hand back executive power to the President and made the following address to the nation:


"Fellow citizens, Following the Republic of Fiji Military Forces intervention in our country's Government, Executive and public institutions and my stepping into the shoes of the President Tui Vuda Ratu Josefa Iloilo I now return all executive authority to His Excellency.


As I stated on 5 December 2005 the actions of the RFMF were precipitated by the impasse between the SDL Government and the RFMF. The RFMF throughout this impasse had wanted to resolve the matter constitutionally, legally and expeditiously.


The RFMF's assumption of executive authority, through its commander was predicated and supported in law. The Akuila Yabaki case had established through Justice Scott's ruling that the President had certain reserve powers under section 109(1) of the Constitution. In addition to this ruling Justice Scott also held that in some unusual or extreme situations a departure from the normal requirements of the Constitution is permitted. This departure or extra-constitutional steps are justified under the doctrine of necessity. Strictly speaking the decision of Justice Scott has not been overturned and therefore is binding and valid law.


Given the circumstances prevailing at that time I had exercised those extra constitutional steps. Notwithstanding the legal ability to carry out what I as Commander and the RFMF did, this course of action was undertaken with great reluctance but it was necessary to steer our beloved nation into peace, stability, a just solution and to above all preserve our Constitution.


It was also essential to maintain to maintain the sovereignty and territorial integrity of the nation-state of Fiji.


I would like to now set out some of the key reasons and issues that created and led to the impasse:


The persistent and deliberate involvement of persons supporting the unlawful takeover of Government in 2000 in the Qarase led SDL Government. This includes the Governments after the 2001 and 2006 Elections;


The double speak of the SDL Government. On the one hand saying that they supported the law but on the other freeing or facilitating the freeing of coup convicts on extra-mural and/or compulsory supervision orders with unsubstantial reasoning. These actions made a mockery of our justice system and fundamentally undermined the integrity of our judiciary and the rule of law;


The continued appointment of those tainted by the events of 2000 to diplomatic and senior government positions;


The failure of the Police Force to investigate all the 'shadowy figures' behind the 2000 coup including Qarase who had requested me to remove the President. Despite this request the Police Force were determined to instead investigate me, my officers and the RFMF as a whole;


The politicization of prison services;


The regular visits by Government officials to Korovou to Prison to meet prisoners who supported the illegal takeover in 2000 and the mutiny. Some of these prisoners are accorded special treatment in prison and referred to as 'cultural advisors' to the prisoners.


The racist and inciteful speeches made by SDL parliamentarians which were never checked by Qarase. These speeches caused fear and tension in minority communities and our society as a whole. We also noted with concern the increased incidents of sacrilege aimed at minorities;


The repeated acts and incidents of Government and civil service corruption including SDL politicians. Those involved continued to be members of the cabinet, those holding senior Government positions and civil servants;


The growing cycle of corruption, clientalism and cronyism also involved the extremely unhealthy influence and involvement of certain businessmen and women in the governmental decision-making processes;


The failure of the Qarase Government to pass any anti-corruption legislation in the past 5 years despite the growing and repeated acts of corruption which has undermined the very foundations of our civil service and institutions and the economy;


The determination by the Qarase led Government to pass acts of Parliament which would have inevitably increased indigenous Fijian nationalism, led to dispute between provinces, indigenous Fijians themselves, created ethnic tension, undermined the rule of law and the independence of our constitutional offices including the Judiciary and compromised the right to fair hearing and representation. I refer in particular to the Reconciliation, Qoliqoli and Land Claims Tribunal Bills;


The exclusion of the RFMF from the National Security Council but repeated inclusion of the Police Force which indicated a refusal to hear the Military point of view on security and governance issues;


The manipulation of the criminal justice system for political reasons. The investigations against me and the RFMF arose from a National Security Council decision and not from the independent decision of the Commissioner of Police himself;


The threat of and references to the use of regional forces and intervention by the Qarase Government to try and influence the resolution of our own internal problems;


The threat of an Australian invasion as shown by the inciteful and hostile remarks made by Alexander Downer the unexplained presence of an Australian Defence Force Helicopter within Fiji’s EEZ and the frequent references to the Biketawa declaration made this threat a real one. Recent revelations confirm this position;


The consideration of foreign intervention was viewed to be a serious threat to Fiji's sovereignty and independence. It will always be resisted. Under section 104 of the Constitution the Prime Minister is to keep the President informed generally about issues relating to the governance of Fiji. He was never informed of this foreign presence;


On the Biketawa declaration itself, the declaration states that the Government:


-Needs to be committed to good governance exercising authority in a manner that is open, transparent, accountable, participatory, consultative and decisive but fair and equitable;


-Ensure equal rights for all citizens regardless of gender, race, colour, creed or political belief; and,


-Must uphold the democratic processes and institutions which reflect national and local circumstances, including the rule of law and the independence of the judiciary, just and honest government. The Qarase Government had failed to adhere to many of these agreed principles of governance;


18. The repeated and persistent attempts to change the command structure at the RFMF since 2000 and the rewarding of those who had made those attempts;


19. Most seriously, the large Government deficit, the failure of the SDL Government to cut spending, the failure to revive the sugar industry, the failure to solve the land problem, the racist and selective education policies, the rapidly deteriorating public health services, the escalating poverty, the hike in interest rates, the lack of employment opportunities given the growing number of school leavers, the almost inevitable devaluation of the Fiji dollar, the neglect to increase our exports vis-à-vis our growing reliance on imports creating a critical balance of payments situation and the overall serious economic situation created by bad governance, mismanagement, corruption, disrespect for the rule of law and the undermining of democratic values since 2000;


20. The manner in which the 2006 elections were conducted was characterised with discrepancies. The fact that no census was conducted before the elections meant that serious breaches of the Constitution occurred, the fact that there were so many additional ballot papers printed for no good reason and the fact that unexplained procedures were adopted;


21. The fleeing from Suva of the Prime Minister and his Cabinet and although it was only for a couple of days instilled a lack of confidence in the Government and negated claims that the Government was in fact in charge;


22. The untimely absence of leave of the Commissioner of Police at a crucial juncture in our country and his seemingly political bias was of grave concern;


23. Qarase and certain members of his Cabinet sought to incite certain members of our community to rebel against the RFMF and thereby did not have regard for the welfare and security of all our citizens and compromised national security;


24. On the morning of 5 December the President asked Qarase to come and see him and he refused to do so simply because he was fearful that the President would have asked him to resign or dismissed him. Clearly Qarase as Prime Minister abdicated his responsibilities by refusing to listen to the President who is the Head of the state;


25. The President was prevented by some including the Vice-President from exercising his constitutional powers. We were as a nation in a state of limbo.


These events and circumstances ladies and gentlemen demonstrate that the actions and inactions of the SDL Government and the circumstances that they had created undermined the core values and the very spirit of democracy, constitutionalism, the rule of law, a fair, equitable, just and non-corrupt government and society. The RFMF as stated previously believes in the rule of law and has and shall adhere to the Constitution. Indeed it not only adheres to the rule of law and the Constitution but more importantly believes in the adherence to the spirit of the law and the Constitution. I would like to thank my officers and all members of the RFMF who have shown true leadership, fortitude and determination. They have sacrificed much to safeguard our nation and our constitution. They have been a source of strength and resolve. I would also like to thank all citizens of this beloved country of ours who have remained calm and dealt with the circumstances with fortitude. They have indeed shown us tremendous support and provided much strength.


I thank Dr. Jona Senilagakali who was appointed as Caretaker Prime Minister at a time when it was probably not popular to do so. He has this morning tendered in his resignation. I would like to thank the Tui Vuda who has been tremendously supportive of our actions and continues to support us. We trust his wisdom and believe that he will exercise his Executive Power with resolve. Given the legal, constitutional and indeed defensible basis of our necessary actions I appeal to all our citizens including the now former Prime Minister Qarase, our neighbours and the international community, to support and work together for the betterment of our beloved nation and its people.


I now hand over executive authority to the President.


God bless Fiji."


[69] The President subsequently addressed the nation and said:


"Good Citizens of our beloved Fiji Islands.


I know that the events of the past few weeks have been trying on all of us.


In particular in early December we were at cross roads at which hard and decisive decisions needed to be made.


I was, as has been noted by the Commander of the Republic of Fiji Military Forces, unable to fully perform my duties as I was prevented from doing so. I do not wish to elaborate further on this point but I can state that they were predominantly cultural.


In any case, given the circumstances I would have done exactly what the Commander of the RFMF, Commodore Josaia Vorecie Bainimarama did since it was necessary to do so at that time.


These actions were also valid in law.


Therefore, I fully endorse the actions of the Commander of the RFMF and the RFMF in acting in the interest of the nation and most importantly in upholding the Constitution.


I thank him and his men and women for having the courage to step in.


I also thank him and the RFMF for handing back all the executive powers.


I thank the civil service, the Police, the Judiciary and other governmental institutions in remaining faithfully at their posts. I thank the good citizens of this beloved country of ours who have gone about their ordinary business.


It is now necessary to move on, look ahead and to take steps to enforce a genuine democracy, look forward to working with the overseas governments, international organizations and our regional neighbours and appeal to them all to recognize our need to find a Fiji based solution while upholding the Constitution.


I will therefore, shortly after consultation with capable people, announce an Interim Government to take us smoothly to the next elections.


The mandate of Interim Government will be as follows:-


To continue to uphold the Constitution;


Where necessary facilitate all legal protection and immunity, both criminal and civil, to the Commander, officers and all members of the RFMF;


Give effect to the actions of the RFMF including the respective suspensions, dismissals and temporary removal from office of civil servants, Chief Executive Officers, those appointed by the Judicial Services and Constitutional Services Commissions, the Judiciary and Government appointed Board Members;


Steady our economy through sustained economic growth and correct the economic mismanagement of the past six years;


Lift up the living standards of the growing poor and underprivileged of our country;


Restructure the Native Land Trust Board to ensure more benefits flow to the ordinary indigenous Fijians;


Eradicate systemic corruption by including the setting up of an Anti-Corruption Unit through the Attorney-General's Office and set new standards of Governmental and institutional transparency;


Improve our relations with our neighbours and the international community;


Take our country to democratic elections after an advanced electoral office and systems are in place and the political and economic conditions are conducive to the holding of such elections;


Immediately as practicable introduce a Code of Conduct and Freedom of Information provisions; and


Give paramountcy to national security and territorial integrity of Fiji.


I thank each and every one of you for your patience and forbearing. I urge all to strive for a better Fiji.


God bless Fiji."


[70] On 5th January 2007 the President appointed the Commander as Interim Prime Minister. From 8th January 2007 onwards various Cabinet Ministers and other State Ministers were appointed by the President acting on the advice of the Interim Prime Minister. They were assigned responsibilities by the President pursuant to section 103(2) of the Constitution.


8. It is appropriate to quote the whole of this passage so that all concerned can see what is being followed. One minor edit has been made, but other than that the quotation is intact. Ordinarily it would not be appropriate to take judicial notice of such recent history. However, with the broad assent of all parties to this application, it is appropriate to treat this outline as the starting point for a recitation of the events which are relevant to this proceeding. It is worth noting that in the addresses by Commodore Bainimarama and His Excellency the President, there are references to the judiciary remaining in their posts.


9. However, some additional facts are necessary to deal with the specific issues in this application. Some of the items that are mentioned hereunder may well be controversial either as to basic fact or as to emphasis. That will be dealt with in due course.


(1) 5 December 2006. On 5 December 2006, Shameem J deposes to presiding over a trial in the High Court. (Affidavit, Shameem J sworn in 11 December 2007). It appears that she learned of the takeover of executive authority of Fiji by Commodore Bainimarama. The following day she received a message from Fatiaki CJ asking her to meet with the judges who were, apparently, at a conference at the Fijian Hotel. It would appear that Shameem J was unable to attend the conference due to the continuance of the trial already referred to. Shameem J deposes that she attended the Fijian Hotel on 7 December 2006 and signed a letter which is exhibited as "E" to her affidavit. The document was a media release and the critical component of the release was that the judges expressed that they remained committed to the judicial oath to uphold the Constitution, the right to all manner of people in accordance with the law and that the duty of the courts was to uphold the law. The media release also declared that the court will remain open and accessible to the public as normal. The document is dated 6 December 2006. In her affidavit, Shameem J then observes that she continued to try the case that she had previously been hearing.


(2) 3 January 2007. Shameem J next deposes to events on 3 January 2007 in respect of which she says that she saw Commodore Bainimarama on television reading a press release to the effect that the Chief Justice and the Chief Magistrate had been asked to go on leave and that they had agreed to do so. He also said on this television broadcast that there would be a judicial enquiry.


(3) 3 January 2007. On 3 January 2007 two military officers, Capt Teleni and Colonel Mohammed Aziz attended of the chambers of the Chief Justice Daniel Fatiaki. According to the affidavit of Fatiaki CJ, and sworn on 29 August 2008, Capt Teleni told the Chief Justice that Commodore Bainimarama had instructed him to request the Chief Justice to go on leave to allow for an enquiry into numerous complaints about the judiciary. Fatiaki CJ then deposes: "I asked Capt Teleni whether there was any alternative to my going on leave, but Capt Teleni stated categorically that the only alternative was my termination." The Chief Justice then deposed that he asked whether he could consult others but was left in no doubt that he could consult all he liked but it was leave or termination. The word "termination" would appear to have been understood by the Chief Justice to (see paragraph 8 of the affidavit) to his "immediate dismissal and physical removal from Office by Commodore Bainimarama." The Chief Justice deposed that he then received a letter apparently signed by Commodore Bainimarama which thanked him for "agreeing to go on leave on full pay effective immediately until further notice to allow a full, proper and unrestricted enquiry into the judiciary and the judicial system as a whole." It may be pertinent to note that the letter in the ante-penultimate paragraph says "In your absence, the Judiciary will continue to run as an independent institution."


(4) 3 January 2007. On 3 January 2007, the Chief Justice appears to have drafted a memorandum to the judges of the courts of Fiji. The memorandum purports to be signed by Chief Justice Fatiaki. There was no suggestion during the course of the hearing that it did not in fact come from the Chief Justice or was not signed by him and the court proceeded on the basis that it was a genuine document.

The document says:


"By now most, if not all of you, will be aware of my decision to go on leave indefinitely at the request of the military to facilitate the conduct of an "enquiry into the Judiciary and the judicial system."


As my decision was taken at very short notice and without any opportunity to consult with anyone and after office hours, it was not possible to make interim arrangements to cover my absence from the office.


This memorandum serves therefore to inform you all that I have verbally requested Hon. Justice Gordon Ward, the President of the Court of Appeal and he has agreed, to "hold the fort" in my absence.


Needless to say I am confident that you will all give him every support and assistance that he may need during my absence from office." [emphasis in original]


The memorandum of the Chief Justice is exhibited as annexure "G" to the Affidavit of Shameem J sworn on 11 December 2007. There is no evidence about precisely when this memorandum was drafted. It must have been drafted after the visit by the military to the office of the Chief Justice to which reference has already been made but before he left that Office. Shameem J deposes that she received a copy of the memorandum. (Affidavit, Shameem J paragraph 25). There is certainly nothing which suggests that either Capt Teleni or Colonel Mohammed Aziz were somehow standing over him when it was written. If that had happened one would have expected that Chief Justice Fatiaki would have mentioned that in his affidavit. There is no suggestion in the memorandum that the cause of his going on leave was that he was left with the choice of doing so or being dismissed from his post.


(5) 4 January 2007. On 4 January 2007 there was a meeting in the judges Common Room of some of the judges. The meeting appears to have been brought about as a result of the communication of the Chief Justice dated 3 January 2007 referred to immediately above. The meeting proceeded upon the basis that in fact the Chief Justice had agreed to go on leave. In the initial part of the minutes (which appear to be prepared by Ward P), there is no reference that Fatiaki CJ was forced to go on leave. It appears that at the outset of the meeting in the Common Room that the memorandum of Fatiaki CJ was accepted at face value. Later in the documentary record of the meeting in the Common Room, it would appear to be suggested that Fatiaki CJ was forced to go on leave by the military. The notes of meeting were written by Ward P. There is no information in the notes which reveals the source of the information that the taking of leave was not voluntary. The essence of what is recorded as having been agreed is the judges and the court staff should continue to execute their duty as normal. The record noted that there was also a discussion of the constitutionality of the removal of Fatiaki CJ. Anxiety was expressed that the military were picking off the head of each section. It was resolved that consideration should be given to making a public statement that there could be deferred for a short while. This memorandum or record is to be found at exhibit "H" to the affidavit of Shameem J. Shameem J (exhibit "I" the affidavit of Shameem J) suggested some amendments to the record which indicated that perhaps there was not complete unanimity as to the constitutionality of the departure or removal of Fatiaki C.J. In her affidavit, Shameem J (paragraphs 30-32) noted that during the meeting there was discussion of possible methods of appointing an acting Chief Justice "for which they said there was a need". One of three methods discussed at the meeting, apparently suggested by Ward P, was that the Judicial Service Commission be bypassed and that the judges approach the President to appoint an acting Chief Justice on the basis of a consensus of the judges. It would appear (Affidavit, Shameem J paragraph 32) that this suggestion was deferred to a later meeting.


(6) 5 January 2007. On 5 January 2007 the acting Chief Registrar revealed that he had attended the Strategic Command of the military on that date and had been told by Capt Teleni that the "posting of the Acting Chief Justice and Chief Magistrate will be resolved later." Futher, the advice written by the Chief Justice (apparently a reference to his memorandum dated 3 January 2007) in relation to the position of the Ward P should be disregarded. Further, the acting Chief Registrar related in his memo that "the advice on Acting appointments will be relayed to us as soon as possible". The memorandum concludes with a note that the President of the Court of Appeal had been advised of this matter. The document is exhibited as "J" to the affidavit of Shameem J. One curious matter not commented upon hitherto is that it bears the stamp asserting that it was received on the 8th of January 2007 at the Chief Justice's Chambers.


(7) 8 January 2007. On 8 January 2007 Shameem J received the memorandum from the Acting Chief Registrar dated 3 January 2007.


The meeting of the Judicial Service Commission


10. The next major event was the meeting of the Judicial Service Commission on 15 January 2007. Exhibit "A" to the affidavit of Shameem J is a record of that meeting. It appears to have been compiled from a tape recording of the meeting taken by the personal assistant of Shameem J. It is clear from the terms of the record of the meeting that the only topic for discussion was the need to have an acting Chief Justice. Shameem J told the meeting that she was present and chairing the meeting in the absence of the Chief Justice because, on the basis of legal advice received, she should do so on that basis that she was the senior substantive puisne judge. Early on in the meeting, Shameem J is recorded as saying "We need to have some emergency measures to try and move the judiciary along." Later in the meeting she says "The judiciary is really in a pretty difficult situation at the moment, and I have to say that one of the saddest things about this kind of situation is our judges may fall out over the issue of judicial leadership. It is important that we preserve judicial collegiality and independence, so that is the reason why we've decided to have this meeting, the only thing holding it up today is whether we have a chairman of the PSC." On the second page of the record Shameem J foreshadows that the appointment is simply a "stop-gap holding decision until such time as we have a substantive CJ." When she said "until such time as we have a substantive CJ" whether she meant the return of Chief Justice Fatiaki or the appointment of a new Chief Justice is not clear.


11. Shameem J expressed the opinion that the President the Court of Appeal would not be eligible by reason of section 127(a) of the Constitution. Then in certain other judges are considered and she indicates that Gates J has indicated that he would be prepared to accept the position if the Commission took the view that he was an appropriate appointment. The President of the Law Society then indicated that he wished to say that Shameem J should reconsider her position having declared that she did not wish to be the acting Chief Justice. Shameem J reaffirmed that she did not think that she wished to accept the position. At least twice the meeting records that she was asked to reconsider this matter and that she stood firm. The chairman of the Public Service Commission went along with the President of the Law Society in saying that he would have preferred that Shameem J accept the position. He recognized that the next realistic candidate was Gates J. He indicated that he was prepared to go along with that appointment as acting Chief Justice.


12. During the course of the meeting there was reference to an opinion which had been given by Mr Gerard McCoy, QC. It is not absolutely plain that Shameem J had actually read the opinion (this implies no criticism) as opposed to have been told about effect of it. If she had not read it, it is pretty clear that she had had the essence of the opinion related to her. The President of the Law Society expressed his support for the conclusions. Again, it is not clear whether he had seen the opinion or had merely had the effect of it related to him. Towards the end of the meeting he says "I also have worked with Gerard McCoy too. He's (sic) reasoning is perfectly sound, so I think we can take it from here that we could recommend to the A-G as the Minister of Justice in his capacity that lets go ahead and finalise this so we can have our next meeting as quickly as possible."


13. In the course of the meeting, Shameem J indicated that once an acting Chief Justice was appointed it would then be imperative to have another meeting of the Judicial Service Commission as soon as possible. The reason given by ShameemJ was that there was a necessity to discuss the matter of the Chief Justice and contracts of certain judges and appointment of certain judges lapsing shortly. She concludes "This is why I was told this meeting was so crucial that we have to have at least get the administration running and then from there the Commission can continue to sit. My only question was is this proper, lawful and constitutional thing to do and now I'm satisfied of that."


14. The record of the meeting suggests that the Attorney General was then consulted over the telephone and he apparently indicated his agreement with the course proposed by the Judicial Service Commission.


The President appoints Gates J


15. The following day, Shameem J wrote to His Excellency the President conveying the recommendation of the Commission.


16. On 16 January 2007, Gates J was appointed as acting Chief Justice.


The application for judicial review - relief sought


17. On 13 April 2007, the Law Society filed an application for judicial review. The relief requested was an order in the nature of certiorari removing into the High Court for the purpose of quashing the decision of the meeting of the Judicial Service Commission in so far as it recommended to his Excellency the President that Gates J be appointed as acting Chief Justice. The next prayer was for a declaration that the decision meeting of the Judicial Service Commission on 15 January 2007 was without jurisdiction and was and is accordingly void and of no effect. Further the application seeks an order in the nature of certiorari seeking to quash the decision of His Excellency the President on 16 January 2007 making the appointment of the Acting Chief Justice. A similar declaration that the appointment was void and of no effect was sought.


18. The application was accompanied by an affidavit of Tupou Draunidalo, then Vice President of the Law Society of Fiji.


Status of parties at meeting of judicial Service Commission


19. At the hearing of the application for leave to apply for judicial review, the status of the parties at the meeting of the Judicial Service Commission was queried by counsel appearing for the Law Society. Clearly, Mr Sharma was at that time the President of the Law Society and there is no issue about his status. The second issue concerns the status of Mr Rishi Ram the record of the meeting suggests that he attended as chairman or acting chairman of the Public Service Commission. The only query to the validity of his appointment appears in paragraph 7 of the affidavit of Tupou Draunidalo, the then vice President of the Law Society. There she says:


"The Chairman of the Public Service Commission, appointed under the constitution, Steward Huggett, had been purportedly removed by the Commander of the Republic of Fiji Military Forces or the Second Respondent sometime after 5 December 2006 and replaced by the Third Respondent."


That paragraph concludes. "I, together with the other members of the Council [of the Law Society of Fiji] had concerns about the lawfulness of the removal of Mr Huggett, and consequently the appointment of Mr [Rishi] Ram, to replace him." The simple position is that there is a long distance between having "concerns" about the validity of Mr Ram's appointment and providing any admissible evidence to support the contention that at the time of the meeting of the judicial Service Commission that he was not in fact the chairman or acting chairman of the Public Service Commission. There is nothing whatever in this point.


20. There is also no issue about the capacity in which Shameem J attended the meeting. At all material times she did nothing other than attend as, she said, as the senior puisne judge. The real issue is, of course, whether, absent the Chief Justice or, perhaps, an acting Chief Justice, she was entitled to be at the meeting at all. That brings into play section 131 of the Constitution. It will be necessary to return to this issue in due course.


Leave to apply for judicial review: test


21. The law in relation to the circumstances in which this court may grant leave to apply for judicial review is set out in Fiji Airline Pilots Association, v Permanent Secretary for Labour & Industrial Relations [1998] FJCA 14. There, the Court of Appeal holds that the basic principle is that the Judge is only required to be satisfied that on the material available and disclosed is what might, on further consideration, turn out to be an arguable case in favour of granting relief.


Arguments as to whether leave should be granted


22. Counsel for the Fiji Law Society then outlined what he characterised as an arguable case in support of leave.


23. The first contention is that the Judicial Service Commission was not properly constituted because the Chief Justice was not present. He argues that section 131 of the Constitution which establishes the Commission, requires that the Chief Justice (or the acting Chief Justice) be present. It was common ground that if there was an acting Chief Justice, his presence would satisfy the requirement. In answer to questions from the Court, counsel for the Law Society was driven to submit that section 131 provides a complete code as to the notion of a valid quorum of the Judicial Service Commission.


The position of the Judicial Service Commission under the Constitution


24. The Judicial Service Commission has a number of important functions under the Constitution. Under section 132(2), the judges of the Supreme Court, the Justices of Appeal (including the President of the Court of Appeal) and the puisne judges of the High Court are appointed by the President on the recommendation of the Judicial Service Commission. Under section 132(3), the Judicial Service Commission must be consulted in relation to the appointment of an acting Chief Justice and acting puisne judges. In some cases listed in section 134, the Judicial Service Commission can actually make the appointment of certain judicial officers such as Magistrates. Under section 131(2), the Judicial Service Commission, in addition to the functions conferred on it elsewhere in this Constitution, the Judicial Service Commission may investigate complaints about judges and judicial officers of courts subordinate to the High Court and may take disciplinary action against them.


25. In addition, the Judicial Service Commission is concerned with aspects of detention in emergency (Constitution, section 23); freedom of movement in Fiji (Constitution, section 34); and the appointment of the Solicitor-General (Constitution, section 113). It might be argued that the idea the Judicial Service Commission should be out of action as it were for any length of time because of the absence of a Chief Justice or acting Chief Justice is potentially a serious matter.


26. There is a slight anomaly in relation to the Judicial Service Commission in that in section 131(3) it is referred to as the Judicial Services Commission.


Chief Justice


27. The office of Chief Justice is established under the Constitution. The mode of appointment of the Chief Justice is provided by section 132 of the Constitution as follows:


(1) The Chief Justice is appointed by the President on the advice of the Prime Minister following consultation by him or her with the Leader of the Opposition.


The Constitution also contemplates the possibility that the Chief Justice will not be able to perform in his office from time to time. Section 132(3)(a) of the Constitution provides as follows:


(3) The President may, on the recommendation of the Judicial Service Commission following consultation by it with the Minister:


(a) appoint a judge or a person who is qualified for appointment as a judge to act as Chief Justice during any period, or during all periods, when the office of Chief Justice is vacant or when the Chief Justice is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office;


28. The Constitution says something about what the Chief Justice does. He is required to make rules for the High Court: Constitution, section 41. The Chief Justice may be required to establish a tribunal into the conduct of either the President or the Vice-President: Constitution, section 93. The Chief Justice takes the Oath of Allegiance from the President or the Vice-President: Constitution, section 94. The Commission on the Prerogative of Mercy may in some circumstances receive reports from the Chief Justice: Constitution, section 115. Section 126 of the Constitution provides that the High Court consists of the Chief Justice and a number of puisne judges that is not less than 10 or such greater number as the Parliament prescribes. The Chief Justice also sits on the Supreme Court. In addition the Chief Justice has a wide responsibility for the leadership and running the Judiciary. Traditionally the Chief Justice is the spokesman of the judiciary both in Fiji and, often, internationally. There are also a number of important budgetary and administrative functions which fall on the shoulders of the Chief Justice.


29. It was suggested in argument that a critical issue to be determined is whether Fatiaki CJ was, in truth, on leave. With respect, in relation to the construction of sections 131 and 132 and in relation to the circumstances in which there can conceivably be an appointment of an acting Chief Justice, that is not the issue. The issue is whether when the Chief Justice is:


(1) absent from duty or


(2) absent from Fiji or


(3) for any reason, unable to perform the functions of office. [emphasis added]


Being "on leave" is but one way in which one could satisfy any of the above. The Judicial Service Commission would have to consider whether one of those three circumstances arose. The issue would be the same for the President.


30. Plainly, the Constitution contemplates that either the Chief Justice or the acting Chief Justice would be present in meetings of the Judicial Service Commission. For example, where it is necessary to appoint an acting Chief Justice to stand in for the Chief Justice while the latter was on leave, the obvious and plain mode of dealing with this would be for the Chief Justice to convene a meeting of the Judicial Service Commission at the time before the Chief Justice goes on leave so that an acting Chief Justice can be appointed. However, the difficulty which immediately and obviously arises is that there may be circumstances where this orderly form of appointment does not occur. The obvious, but not the only, example of this is where the Chief Justice dies suddenly. It requires little imagination to envisage circumstances in which the orderly arrangements posited immediately before this example might not occur. The question would then be how to deal with the situation. One possibility would be the urgent and rapid appointment of a new Chief Justice. However, it is almost childishly naive to suggest that this could always be done with speed. After all, given the multiple role of Chief Justice as judge, leader of the judiciary and in some respects administrator, the recruitment of such a person could very well take some time. On any view, the Chief Justice occupies a unique role in the public life of Fiji and quick and urgent replacement may not always be an option. (That said, there may be circumstances in which the obvious successor to the Chief Justice can be identified straightaway. The more fundamental point is that this is hardly guaranteed or, realistically, could be constitutionally assumed.)


31. The point of all of this is that it may be that while the search for and/or contemplation of the merits of a candidate or candidates for the permanent post of Chief Justice will take some time and it would almost certainly be necessary, in those circumstances, to appoint an acting Chief Justice. If that situation is contemplated, a question which needs to be addressed is now, absent the recently deceased Chief Justice, the Judicial Service Commission could properly sit and recommend to the President an interim arrangement in the form of an acting Chief Justice. In the course of the submissions, the possibility was contemplated of two members of the Judicial Service Commission sitting ie the chairman of the Public Service Commission and the President of the Law Society sitting alone. At first blush, this would appear to be an unattractive approach given that one of the crucial components of the entire concept of a Judicial Service Commission is that there is the "view" from the judiciary via either the Chief Justice or the acting Chief Justice. It becomes perhaps less attractive the more one reviews the role under the Constitution of the Commission.


32. Counsel for the Law Society contended that the true construction of the Constitution in relation to the issue as summarised in the preceding paragraph should be a matter which is resolved by the Court after a full consideration of arguments. As has been noted in the course of the recitation of the underlying facts in this case, the impugned meeting of the Judicial Services Committee (or some of them) may have had access to an opinion from Mr McCoy, QC. Whether that opinion is right or wrong is not to the point. It is, as counsel for the Law Society argued, of not inconsiderable importance that a court give a construction to the Constitution. This in no way diminishes the opinion to which reference has been made. The Court has not seen it. For better or for worse, a copy has not been provided to the parties. I infer that the original or a copy of the opinion is in the custody and control of the Attorney-General. However, as counsel for the Law Society pointed out, what matters is the construction of the Constitution by this Court.


Case for Applicant is arguable


33. The construction of section 131 and 132 of the Constitution contended for by counsel for the Law Society is an arguable construction. I say this notwithstanding the contentions advanced by counsel for the 1st, 2nd, 3rd and 5th Respondents. The essence of those submissions is that the Constitution by its very words is obviously not a complete code on the Constitution of the Judicial Service Commission. Counsel for the 1st, 2nd, 3rd and 5th Respondents argues, in my view with considerable force, that where it is not possible for the Chief Justice or, if necessary, the acting Chief Justice to sit, it is at least appropriate if not necessary to have a senior member of the judiciary sit in and chair the meeting. As he submitted, this is not simply because it is necessary or desirable to have the "view" of the judiciary on important appointments, but because of the importance in constitutional terms of the Judicial Service Commission. In my judgment, those submissions are formidable and may well provide the complete answer to the contention as advanced on behalf of the Law Society. However, that does not render the submissions on the part of the Law Society unarguable. In my view, subject to a number of matters to which I will shortly refer, the Applicant, the Law Society of Fiji has demonstrated a sufficiently arguable case to justify leave to apply for judicial review to be granted.


34. In the course of argument, counsel for the Law Society suggested that Shameem J was wrong about the eligibility of Ward P and Pathik J. My first reaction to that issue is that she is correct. However while it is an interesting question, it does not fall for determination in this case because the whole thrust of the case for the Applicant is not who was selected, the issue is whether the meeting was properly constituted and whether absent the Chief Justice or a validly appointed acting Chief Justice, the meeting was a valid meeting of the Judicial Service Commission.


Countervailing considerations


35. However, before the court could consider granting leave there are a number of other matters which require consideration. The first is in relation to what is commonly referred to as the doctrine of necessity. That may arise where on a proper construction of the relevant provisions of the Constitution the impugned meeting did not meet the requirements of the Constitution. It has been held in Fiji and elsewhere that this is a well-established principle of constitutional law. In Prasad v Republic of Fiji [2000] FJHC 121 Gates J observed "The courts have recognised the existence of a law of necessity. Such a law permits emergency action to be taken validly in times of extreme crisis, such action being in normal circumstances illegal." A starting point for any analysis of the content of that doctrine and its potential applicability to this case is to be found in Mitchell & Others v Director of Public Prosecutions & Another [1986] LRC (Const.) 35. There Haynes P observed:


(3) I would lay down the requisite conditions to be that:


(i) an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the State;


(ii) there must be no other course of action reasonably available;


(iii) any such action must be reasonably necessary in the interest of peace, order, and good government; but it must not do more than is necessary or legislate beyond that;


(iv) it must not impair the just rights of citizens under the Constitution;


(v) it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such.


(4) It is for this court to pronounce on the validity (if so) of any unconstitutional action on the basis of necessity, after determining as questions of fact, whether or not the above conditions exist. But it is for the party requiring the Court to do so to ensure that proof of this is on the record.


(5) Such validation will not be a once-for-all validation, so to speak, it will be a temporary one, being effective only during the existence of the necessity. If and when this ends, the right constitutional steps must be taken forthwith, that is, within a reasonable time.


It is not intended to undertake an exhaustive analysis of the law in this regard. In Republic of Fiji Islands v Prasad [2001] FJCA 2, Mitchell & Others v Director of Public Prosecutions & Another (above) was one of the formulations of the law which were considered by the Court of Appeal. Whatever the precise scope of the doctrine, the point to make is that it appears to be sufficiently established as part of the law of Fiji to render it a matter for consideration in the event that leave to apply for judicial review is granted.


36. There are a number of issues that have to be dealt with in relation to this. Firstly, as counsel for the Law Society pointed out, an issue arises as to the degree of necessity and urgency for the appointment of an acting Chief Justice. Further, an issue arises as to whether or not that level of urgency must be in the minds of the members of the Judicial Service Commission or is it a matter to be established objectively or both. Counsel for the 1st, 2nd, 3rd and 5th Respondents contends that there was substantial reference in the minutes of the Judicial Service Commission to urgency. Further, he points to paragraphs in the uncontradicted affidavit of Shameem J where she portrays the necessity for the appointment of an acting Chief Justice. The passages of those affidavits portray a rapidly developing situation and the necessity for there to be leadership of the judiciary during the course of those developments. Indeed Shameem J made the point that the appointment of an acting Chief Justice was, in some respects, necessary to the preservation of the judiciary. I have not sought to outline all of what Shameem J said. I am of the view that if the doctrine of necessity is to be relied upon, the appropriate forum for doing so is not in an application for leave to apply to judicial review but on the substantive hearing. The expression of that view does not imply anything about the strength of the case that the Respondents have with respect to the issue. It is more a reflection of my view as to the appropriate time to consider the issue.


37. The respondents argue that leave should not be given to apply for judicial review because there has been unacceptable delay on the part of the applicant. In my opinion, the arguments put forward by counsel for the Respondents are indeed cogent ones. In O'Reilley v Mackman [1983] UKHL 1; [1983] 2 AC 237, 280 the House of Lords made the point that the public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has engaged in the purported exercise of decision-making power any longer period than is absolutely necessary in fairness to the person affected by the decision. Indeed, in this case, it is not just a third party but the entire community who was (and is) affected. The idea that the legality of the appointment of the Acting Chief Justice is still a matter undetermined nearly 2 years after the decision to appoint him, is obviously unacceptable. However, it is the institution of the proceedings which is the measuring stick for the issue of delay and not the time at which the court finally gets round to resolving the matter. The requirement is that the proceedings be issued promptly. The proceedings appear to have been commenced one or two days after three months following the event. The explanations offered by the vice-President of the Law Society in her affidavit do not rate has the most compelling explanations that this court has seen. The evidence would seem to suggest that the Law Society was in some internal turmoil as to the correct course to adopt. That is underlined by material in the affidavit of Mary Muir, sworn on 14 November 2008. I will not review the contents of that in detail for present purposes. Suffice to say, in part the material in that affidavit underlines the possible turmoil faced by the Society.


38. In my opinion, the appropriate way to resolve this issue of delay to grant leave in the terms that I propose and leave open to the respondents the issue of delay for the substantive hearing.


39. There is a further dimension to this matter which was not canvassed in the written submissions of the parties. It is the exercise of the discretion of the court even if a proper case is made out. Both for that specific purpose and also, possibly, for the purpose of assessing the impact of the constitutional doctrine of necessity it may be necessary to look beyond the precise time of the decision of the Judicial Service Commission and, a day later, the decision of His Excellency the President. Even if one looked only a few days later, one would see the very well publicised return to the court buildings of Fatiaki C.J. Many in Fiji will have seen the television coverage of the removal of Fatiaki CJ following their visit. Shortly after that, His Excellency the President suspended Fatiaki CJ and that is where things stand as late as the end of November 2008. There is, of course, a commission purportedly established under the Constitution to consider allegations of misconduct against Fatiaki CJ. That is being litigated in separate proceedings and it is inappropriate to comment on that matter. In the course of submissions, the court asked counsel for the Law Society what would happen, if the case for Law Society was correct. The answer, as best I could understand it, was that not only would Fiji not have an acting Chief Justice but that possibly many of the acts of Gates J in the carrying out of the office of acting Chief Justice would be invalid.


Conclusions


40. I propose to grant leave to the Applicant to apply for judicial review. The leave is on a limited basis in that it does not extend to the 3rd or 4th Respondents i.e. the Chairman of the Public Service Commission and Shameem J. Judicial review is concerned with the legality or legal efficacy of the decision; of the decision-making body: in this case the Commission and the President. It is not concerned with the individuals that made up that body. It would appear that subject to one major qualification counsel for the Law Society was driven to accept that principle. However, he argued that the status of both the 3rd and 4th Respondents was in issue. In respect of the 3rd Respondent, his status was at least in the strictest formal sense placed in issue in the affidavit in support of the application for leave to apply for judicial review filed by the Vice-President of the Law Society. There, as I have already recited, she said there was a "concern" about the matter. As I have already pointed out, there was not a scrap of evidence before the Court to suggest that the 3rd Respondent was anything other than the officer for the time being occupying the post of Chairman of the Public Service Commission. No evidence whatever was called which threw that position into doubt. The position of the 4th Respondent was never in doubt. Shameem J never purported to be anything other than the person she was. It was never suggested that she was the acting Chief Justice or anything else. In my opinion, it was and is certainly open to Mr Rishi Ram and Shameem J to provide evidence of what they saw and heard in the meeting and in relation to events before that or, possibly, after that. However, in my judgment they were never properly parties to the proceedings. Put another way, there is nothing that they did which is susceptible of judicial review because the decision in question was the decision to recommend made by the Judicial Service Commission. Accordingly, subject to hearing counsel on the issue of costs in respect of these parties their participation as Respondents is, as a consequence of the orders I will shortly make to be terminated.


41. I confess to being less sure about the position of the Interested Party. He was not a decision-maker. He could have applied to intervene. That may well have been granted. Ordinarily where the decision maker is a court or tribunal the tribunal simply submits to the jurisdiction of the High Court and takes no further part in the proceedings. There is, in my judgment, no reason to require the participation of Justice Gates. I will leave it to the Interested Party to make an application to be discharged from participation as a party. I can indicate that, subject to submissions, I would be minded to grant such an application if it were made.


42. While it will be obvious to the parties and even if not obvious to the parties it will be obvious to them through their lawyers what the effect of this judgment is. However, it is perhaps appropriate in view of the public importance of this matter that those who read this judgment who are not legally trained are left in no doubt as to what has been decided by this judgment and, more importantly, perhaps what has NOT been decided. This judgment does not determine that the appointment of Gates J to be acting Chief Justice was unconstitutional. All that has happened is that the court has recognized that the contentions of the applicant for judicial review are arguable. The law governing the procedure in relation to judicial review requires that if, all other things being equal, there is an arguable case, the matter should then be fully heard. Despite what might been seen as unacceptable delay in commencing these proceedings, I think it is clearly in the public interest that this matter be heard and determined by this Court. Although this will be obvious to the lawyers who read this judgment, the Applicant still has a formidable task ahead of it so far as the facts and law are concerned - especially on the construction of the Constitution.


Orders


43. The orders of the Court are:


(1) Leave to apply for judicial review granted except in respect of the position of the 3rd and 4th Respondents.


(2) Order nisi that costs of the hearing to be costs in the cause save in respect of the 3rd and 4th Respondents.


(3) Order nisi that the 3rd and 4th Respondents to have their costs on a party and party basis, to be taxed if not agreed.


[Andrew Bruce]
JUDGE OF THE HIGH COURT


Dated at Suva Thursday 27th November 2008.

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