Citizens Constitutional Forum v President of the Fiji Islands [2001] FJLawRp 41; [2001] 2 FLR 127 (23 May 2001)

CITIZENS CONSTITUTIONAL FORUM & ADI KUINI VUIKABA SPEED, DR TUPENI BABA, RT KINIJOJI MAIVALILI, RT ISIRELI VUIBAU & DEO NARAYAN v PRESIDENT & ATTORNEY-GENERAL (No. 1)

High Court Civil Jurisdiction
23 May, 2001 HBC119/01S

Practice and procedure – disqualification of judge on the ground of alleged bias – allegation that Judge took part in drafting an Administration of Justice Decree 2000 - refusal of judge to recuse himself from hearing the case –whether participation in wider interests, or subjective apprehension of Applicant sufficient to disqualify trial Judge - High Court Rules O.7 r.2, O.12, O.17 r.3(3), O.28 r.3, O.41 rr.5(2) & 6, O.80 r.9(3), Forms 4 & 15

Constitution – declarations sought on whether the President was wrong in proroguing Parliament instead of summoning Parliament – whether President used advice tendered by Chief Justice for course of action taken 10 months later - Constitution ss28, 29(2), 85, 90, 91, 96, 98, 99(3), (4) & (5), 106, 118, 123 and 132 (1) & (2)

The Applicants sought by Originating Summons various declarations about the refusal of the President to summons Parliament, but instead proroguing Parliament and dismissing the Prime Minister and appointing a caretaker government. Before the hearing of the substantive Originating Summons, the Applicants sought to disqualify the trial Judge on the basis of involvement in drafting the Administration of Justice Decree 2000, that he had authored a document referred to as 'Document B', and an opinion under s106 Constitution, that he had common cause with the President in the issues raised, that the impugned Judge had prejudged the issues raised, that a call to the President to remove the impugned Judge was enough reason to apprehend possible bias, and in light of the facts and circumstances, and in order to maintain public confidence the Judge should disqualify himself. The impugned Judge required the first named Second Applicant deponent to amend and refile his affidavit without defects, as the affidavit failed to identify sources of information and grounds of belief. The Applicants could not point to any authority to support a proposition that a subjective apprehension of an Applicant is critical and sufficient grounds for disqualification, but suggested that apprehension may arise because of a Judge's relationship or connection with a party, which is so close and friendly as to indicate a bias, or an aderse relationship or attitude. The Applicants pointed out that the impugned judge would be away overseas and was unable to hear the case and deliver Judgment in a short time span. The Judgment was required to be delivered hastily as the Government had intended to issue a Writ of Elections shortly, and Judgment was necessary to determine whether the Writ of Elections would be issued. The trial Judge discussed the various authorities on bias and concluded that the Applicants did not firmly establish any bias, or common cause. However, the Judge returned the file to be reassigned to another Judge.

Held – (1) An application to disqualify a trial judge is a serious matter and must be made on substantial grounds and accompanied with supporting evidence. The application must first be made to the trial Judge in chambers in the presence of the opposing party, and if refused, moved in open court. The test of recusal is objective and the onus is on the applicant to establish that the disqualifying interest or matter would cause the possibility of a departure from impartial decision–making and the oath of office taken by the Judge to administer justice without fear or favour. A subjective apprehension is not, of itself, enough to warrant or require disqualification. The latter of the dual constitutional requirements of independence and impartiality is more narrowly focused on individual characteristics than the prior, which is status oriented, and extends to cover constitutional and administrative independent of the Court. There is a constitutional presumption that a Court is independent and impartial unless rebutted by the Applicants.

(2) The real test of bias is whether there is a real danger or possibility of bias on the part of the tribunal under scrutiny. The separate disqualification rule that a person is not confined to a cause in which he is a party but also to a cause in which he has an interest, is good law in Fiji.

(3) The Applicants cannot rely on a document 'B' as tending to proof of bias by association, which document the trial Judge co-authored, but which was never received by the President's office. Despite recorded denials of the trial Judge in having written it, the President did not rely on in his address to the nation for the actions he had taken to dismiss the Prime Minister and prorogue Parliament, and which painted a different scenario 10 months later than existed when the document was created.

Obiter dicta –(1) It is unfortunate and unprecedented for fellow Judges to publicly reveal their opinions and seek to disqualify the trial Judge from hearing the substantive application on the basis of his involvement in certain activities. Although motivated by higher ideals, the clumsy attempts have unwittingly intruded upon the trial Judge's personal integrity and judicial independence. They characterise an atmosphere of absence of collegiality, backbiting, envy, hidden-agendas, hypocrisy and disloyalty.

(2) Judges are by their training capable of exercising personal and emotional detachment from cases. No applicant should be allowed to easily change judges based on public vilification of the Judge.

Dimes v Proprietors of Grant ]unction Canal [1852] EngR 789; (1852) 3 H.L.C. 759 appl.

[Note: for Judgment see Rev Akuila Yabaki & Ors v President & Attorney-General (No. 2) in this volume]

Other cases referred to in Ruling
Amina Koya v State [1998] CAV0002/97
Arab Monetary Fund v Hashim and Others (No.8) The Times May 4 1993
Attorney General v Director of Public Prosecution (1982) 28 FLR 20
Auckland Casino Ltd. v Casino Control Authority (1995) 1 NZLR 142
Auten v Rayner and Others (1960) 1 All ER 692

Chandrika Prasad v Republic of Fiji & Attorney-General (No. 4) (2000) 2 FLR 89; [2001] NZAR 21; 1 LRC 665
Conway v Rimmer [1968] UKHL 2; (1968) AC 910

D. v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1977) 2 WLR 201

Ebner v Official Trustee in Bankruptcy and Clenae Pty Ltd. v A.N.Z. [2000] HCA 63; (2000) 176 A.L R. 644

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Hennessy v Wright [1888] UKLawRpKQB 117; (1888) 21 QBD 509

Iwi v Montesole (1955) Crim.L.R. 313

J.L. Young Manufacturing Co Ltd v 1.1. Young Manufacturing Co. Ltd. [1900] UKLawRpCh 177; (1900) 2 Ch. 753

Livesey v N.S.W. Bar Association [1983] HCA 17; (1983) 151 CLR 288

Locabail Ltd v Bayfield Properties [1999] EWCA Civ 3004; (2000) 1 All ER 65

Patel v Comptroller of Customs (1965) 3 All ER593

The President v lnoke Kubuabola and Others [1999] SC Misc. 1/99 3 September 1999

The President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; (1999) 4 S.A. 147

The Queen v Beauregard (1987) 30 D.L.R. (4th) 481

The Queen v Watson ex-parte Armstrong (1976) 136 CLR248

R. v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No.2) [1999] UKHL 1; (1999) 1 All ER 577

R. v Gough [1993] UKHL 1; (1993) AC 646

R v Myers (1965) AC 1001

Rajski v Wood (1989) 18 N.S.WLR 512

Raybos Aust. Pty. Ltd. v Tectran Corporation Pty. Ltd. (1986) 6 N.S.WLR 272

Re J.R.L; ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342

Re: Polites ex p. Hoyts Corporation Pty. Ltd. (1992) 173 CLR78

Re: Renaud ex parte C.L.J. [1986] HCA 39; (1886) 60 A.L.J.R 528

Reference concerning the Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island

Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island Can SC September 18 1997

Regina v London County Council ex parte Empire Theatre (1894) 71 L.T. 638

Republic of Fiji v Chandrika Prasad (No. 2) (2001) ABU0078/00S; [2001] 2 LRC 743

Savings Bank v Casco B.V. (1984) 1 WLR271
Teper v R (1952) AC480
Turner v Allison (1971) NZLR833
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Valente v The Queen (1986) 24 D.L.R. (4th) 161
Watson v Bish Limited (1985) 31 FLR 41
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Wyatt v Gore [1816] EngR 671; (1816) Holt N.P.299

Sir Vijay R. Singh for the Applicants
Qoriniasi B. Bale for the First Respondent
Samuela Matawalu for the Second Respondent

23 May, 2001 RULING

Fatiaki, J
It is my unpleasant duty to rule on this interlocutory application by the applicants seeking my disqualification from further hearing this matter on the ground of bias. I say unpleasant advisedly firstly because of the very nature of the application which places me in somewhat of an invidious position; and secondly, because of the unprecedented spectacle of me being confronted with the affidavits of two (2) serving colleagues on the bench.

In this Notice of Motion filed on 30.4.2001 counsel for the applicants seeks an order or declaration that I am 'automatically disqualified from hearing or adjudicating upon the matters raised in the applicant's Originating Summons' alternatively, that '... in all the circumstances of the case I disqualify myself ....'

The grounds advanced in the Motion are as follows:

(1) that I have 'common cause' with H.E. the current President in the issues raised by the Applicants such as to automatically disqualify me from continuing any further with this case;

(2) that I have 'effectively prejudged the same or closely related issues' as those raised in the applicant's substantive Originating Summons such that any reasonable bystander would entertain a well-founded apprehension of possible bias on my part;

(3) that the first applicant the CCF has called on H.E. the President 'to institute an inquiry into my conduct with a view to my removal from office' and this is reason enough for the CCF to apprehend possible bias on my part in determining the case;

(4) that 'in light of all the facts and circumstances' deposed in the affidavits filed in support of this Motion I should disqualify myself 'in order to maintain public confidence and that of the applicant's in the eventual decision on the substantive application'.

In my view grounds (3) & (4) as framed, are not proper grounds for the application, rather, both refer to specific and general evidential matters placed before me to consider in my ruling on grounds (l) & (2). Be that as it may counsel candidly admitted that ground (4) was a "catch-all" ground. It was not addressed in any meaningful way and I do not propose to deal separately with it in this ruling.

In this application the applicants have filed seven (7) affidavits as follows:

(1) Affidavit of Akuila Yabaki filed 1st May 20001;

(2) Affidavit of Ratu lsireli Vuibau filed 1st May 2001;

(3) Second affidavit of Akuila Yabaki filed 9th May 2001;

(4) Affidavit of Jone Dakuvula filed 9th May 2001;

(5) Affidavit of Joseph Browne filed 9th May 2001;

(6) Affidavit of John Edward Byrne filed 11th May 2001; and

(7) Affidavit of Nazhat Shameem filed 11th May 2001.

The Respondents in turn filed five (5) affidavits:

(1) Two (2) affidavits deposed by Jeremaia Waqanisau filed on 4th May and 14th May 2001 on behalf of the First Respondent; and

(2) Two (2) affidavits deposed by the Solicitor-General Nainendra Nand filed on 4th May and 10th May 2001 on behalf of the Second Respondent who also filed a personal affidavit on 10th May 2001.

Before dealing with the affidavits however there is one matter that 1 wish to briefly comment upon.

Very early in his oral submissions Sir Vijay touched upon the system in the High Court civil registry for the assignment of civil actions '... by pulling the name of a judge out of several names in a receptacle..." and counsel sought to make some capital out of the Chief justice's assignment of this case to me being a departure from the 'ordinary and customary practice'.

It is a minor matter but one which counsel describes as having given rise to 'notorious facts and (is) known to be controversial'. This submission warrants a short answer lest I add to the controversy by ignoring the insinuation. The short answer is that there is nothing unusual or sinister in the allocation or assignment of difficult or important cases by the Chief justice to any judge of the High Court as he sees fit.

The longer answer is provided in the following passages taken from the judgment of Kirby P. (as he then was) in Rajski v Wood (1989) 18 N.S.WLR 512 at p.519:

'It is one of the fundamental principles of judicial independence that the constitution of a court should be outside the control or influence of litigants in the court. This self-evident truth is reflected not only in local law and practice. It is clearly laid down in principles concerning the independence of the judiciary contained in international statements on the subject. One such collection of principles is found in a resolution of the United Nations Organisation General Assembly, Basic Principles on the Independence of the judiciary ... Clause 14 of the United Nations Basic Principles of the Independence of the judiciary, for example, provides:

"14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.'

His lordship continues:

'If parties could pick and choose judges according to their perception of the way in which their choice could advantage them, or disadvantage their opponents and then render judges answerable for sitting arrangements, great damage would be done to the integrity of the judicial process and to community confidence in the neutrality and impartiality of the judiciary. This is a reason why, ... the assignment of judges to hear cases has been by express law, inherent jurisdiction and daily convention and practice, reserved to the judiciary itself. It is not something over which litigants may exercise influence, except as the law provides, for example, by suggestion that a judge should disqualify himself or herself on the ground of actual bias or the reasonable apprehension of bias or (in the case of judicial officers of inferior courts) by action taken in proceedings prerogative in nature.'

Then in words that might describe the existing system of allocating cases in the High Court civil registry, Kirby P. says:

'Courts are vigilant to adopt procedures to guard against forum shopping and judge selection by parties to litigation. Sometimes practices are adopted to provide a random assignment of judges, precisely to reduce the risk that parties to litigation might, by their own actions, influence the choice of the judge to hear their case.'

The first and principal affidavit is deposed by Akuila Yabaki the Executive Director of the first applicant who describes himself as a 'Fiji Minister of Religion and Social Activist'. The second affidavit is deposed by Ratu lsireli Vuibau who 'was and claims still to be Assistant Minister for Fijian Affairs in the Coalition Government'.

It is convenient that I deal first with Ratu Vuibau's affidavit which deposes to a meeting he attended with the current President Ratu Iloilo and to comments attributed to H.E. during the course of their discussions. Such attributions, which are denied, are inadmissible hearsay and totally irrelevant to the present application. For substantially similar reasons the affidavit of Jone Dakuvula and most of the affidavit of Joseph Browne both of which were filed without leave, may be ignored.

The affidavit of Akuila Yabaki was somewhat longer but it too suffered from numerous irregularities as to its contents. It was filed on behalf of the First applicant the Citizens Constitutional Forum (C.C.F.) by its Executive Director and purports to advance facts within the deponent's own knowledge' or facts based on 'information and belief,' and facts that are claimed to be 'matter of public record'. I say 'purports' advisedly.

Or.41 r.5 & 6 of the High Court Rules 1988 relevantly provides:

'Contents of affidavit (0.4l,r.5)

5.-(1) Subject to Order 14, rules 2(2) and 4(2), to Order 86, rule 2(1), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof.

Scandalous, etc., matter in affidavit (0.41, r.6)

6. The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive.'

Quite plainly rule 5(2) provides for an exception in interlocutory proceedings, permitting the inclusion of hearsay and secondary evidence in affidavits filed in such proceedings. The relaxation is allowed only if the deponent discloses 'the source(s)' of his information and 'the grounds' of his belief.

The importance of these dual disclosures is obvious as was stated by Lord Alverstone C.J. over a century ago in J.L. Young Manufacturing Co Ltd v 1.1. Young Manufacturing Co. Ltd. [1900] UKLawRpCh 177; (1900) 2 Ch. 753 at 754:

"In my opinion some of the affidavits in this case are wholly worthless and not to be relied upon. I notice that in several instances the deponents make statements on their 'Information and belief' without saying what their source of information and belief is, and in many respects what they so state is not confirmed in any way. In my opinion so-called evidence on 'information and belief' ought not to be looked at all, not only unless the Court can ascertain the source of the information and belief but also unless the deponent's statement is corroborated by someone who speaks from his own knowledge. If such affidavits are made in future, it is as well that it should be understood that they are worthless and ought not to be received in evidence in any shape whatever."

In his principal affidavit, Akuila Yabaki in no less than eight (8) paragraphs has blithely used the expression: 'I am informed and believe' without disclosing or identifying either the 'source' of his information or the 'grounds' for his belief. The offending paragraphs in this regard are paras 9, 10, 11, 13, 19, 20 & 25 which contain the substance of the allegations against me.

Even more problematic was the contents of the rather unusually worded para.17 of the affidavit which identified counsel as being the 'source' of the information in the paragraph which was comprised of two (2) undated and unsigned documents (Annexure 'AY6'). The deponent also deposed in the paragraph as 'true' counsel's belief as to the nature, authorship, and ultimate recipient of the documents in question.

Quite plainly the wording of paragraph 17 was an attempt to overcome the strictures of Or.41 r.5(2) but in any event, if counsel's belief is accepted, then counsel was not the original source of the documents but a secondary one and the paragraph as deposed was doomed to fail as was clearly expounded by Peter Gibson J. in Savings Bank v Casco B.V. (1984) 1 WLR271 when the learned judge said at p.283:

'I find it impossible to accept (the) submission that it is sufficient in order to comply with rule 5(2) that the deponent should identify only the source to him of his information even though it is clear that that source was not the original source ..... That, to my mind, would largely defeat the requirement that the sources and grounds should be stated and would make it too easy to introduce prejudicial material without revealing the original sources of hearsay information by the expedient of procuring as the deponent a person who receives information second-hand. By having to reveal such original source and not merely the immediate source, the deponent affords a proper opportunity to another party to challenge and counter such evidence, as well as enabling the court to assess the weight to be attributed to such evidence.

In my judgment the court ought not to allow, in affidavits to be used in interlocutory proceedings, material which cannot be proved because it is mere opinion or is otherwise inadmissible. This is the more important in cases like the present when the material sought to be adduced will never be adjudicated upon at the trial, because, ... it is not relevant to the issues at the trial.'

In the circumstances in the absence of an affidavit from counsel (to which the observations of the Fiji Court of Appeal in Watson v Bish Limited (1985) 31 F.L.R. 41 at 48 would have undoubtedly applied) deposing as to the 'original source" of these two documents to him and the 'grounds' for entertaining the belief that is attributed to him in the affidavit of Akuila Yabaki, no reliance could be placed on paragraph 17 or the attached annexure 'AY6' which counsel accepted was critical to the application.

A further allegation in Akuila Yabaki's first affidavit (paras 8, 9 & 10) is not that 1 personally assisted in the drafting of the Administration of justice Decree, rather the allegation was that the Chief Justice had agreed at a meeting with a Law Society delegation that... he and two (unnamed) senior judges had been involved in the giving of advice and the drafting of the Decree'. Paragraph 10 also identifies the senior judges in the following unusual expression:... were then or later known to lawyers as justices Scott and Fatiaki'.

None of this information was or could have been within the personal knowledge of Akuila Yabaki yet no 'source' is named or identified in an attempt to lend some credence to it. The information was undoubtedly hearsay on hearsay and in so far as it sought to implicate me in any involvement or in rendering assistance to the Military in either advising or in drafting the Administration of Justice Decree, is baseless and entirely false. Such 'information' if one can call it that, is quite simply malicious gossip, rumour mongering and 'tittle-tattle' unworthy of any credit and I reject it now as I did during the course of the hearing.

Even if the information was deposed to by a member of the delegation of the Law Society who met the Chief Justice, as it should have been if it is to be believed, how? can such a hearsay statement by the Chief Justice made in my absence and never communicated to me, ever implicate me or give rise to 'a real possibility of bias" on my part in hearing the substantive summons which nowhere questions the lawfulness of the actions of the Military. Quite simply it cannot and does not give rise to any bias on my part and I reject the suggestion now as I did during the course of the hearing.

Akuila Yabaki's affidavit also contains a great deal of 'irrelevant' matters that have no bearing on the question before the court. For instance numerous paragraphs make reference to the actions, omissions and reactions of the Chief Justice and Justice Scott which have nothing at all to do with me except, perhaps, by 'osmosis'. For e.g. paras 8, 9, 10, 14, 15, 16, 18, 23, 24 & 25. Then there are paragraphs that, instead of or in addition to setting out facts, contains quite improper legal arguendo or conclusions such as para 7 which plainly misrepresents the Court Appeal's declarations in the Chandrika Prasad judgment and paragraph 27 which advances a conclusion on a hypothetical.

From the foregoing analysis of Akuila Yabaki's principal affidavit it is sufficiently plain that the bulk of the affidavit in its most material parts, contains so many defects that it would be impossible to sever the acceptable and relevant from the unacceptable and irrelevant and accordingly counsel was permitted to file a further affidavit to regularise the defects.

That second affidavit was no better than the first in its failure to disclose the 'source' of the additional letters that were annexed to the affidavit which included copies of internal confidential correspondence within the judicial Department and even an official letter from the Chief justice to the Commander of the Military Forces. It did however improve dramatically on the contents of the former President's televised address to the nation on 27 May 2000.

It needs hardly to be said that an application to disqualify a judge is a serious matter not to be made lightly and in the absence of substantial grounds and evidence to support it. As was said in the judgment of the Court of Appeal in Arab Monetary Fund v Hashim and Others (No.8) The Times May 4, 1993:

'A client's instructions were never themselves sufficient to justify an application for the removal of a judge on the ground of bias or apparent bias. Such an application should only be made where counsel was satisfied that there was material on which it could properly be brought.'

Furthermore as was said recently by the High Court of Australia in Ebner v Official Trustee in Bankruptcy and Clenae Pty Ltd. V. A.N.Z. [2000] HCA 63; (2000) 176 A. L. R. 644 at p.648:

'The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making is articulated. Only then can the reasonableness of the apprehension of bias be assessed.'

(my underlining)

In the light of the flimsy affidavit evidence initially advanced by the applicants, I did not and do not believe that it was my responsibility to fill the gaps in the applicants evidence or dignify counsel's 'fishing expedition' during the hearing, by providing answers that would not be accepted when given.

Needless to say I reject in limine counsel's suggestion that the rules of evidence should be over-looked or relaxed because we are dealing with a constitutional matter or because of the nature of the particular application or because I refused to disclose information that counsel claims must have been known to myself.

Given the rarity and novelty of the present application and counsel's view that the process is non-adversarial, something must be said about the 'procedure' and 'onus' in the making of an application for the disqualification of a judge.

In a recent decision of the Constitutional Court of South Africa in The President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; (1999) 4 S.A. 147 the court firmly rejected the view that a litigant could seek to 'interrogate' members of the court and described the procedure for making an application such as this, as follows:

'The usual procedure in applications for recusal is that counsel for the applicant seeks a meeting in Chambers with the judge in the presence of his opponent. The grounds for recusal are put to the judge who would be given an opportunity, if sought, to respond to them. In the event of the recusal being refused by the judge the applicant would, if so advised, move the application in open court.'

I am glad to record that the 'usual procedure' was adopted in this case.

In the same judgment the Court also observed (ibid at p.177):

'... the current approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant...'

(my underlining for emphasis)

and further, in assessing the 'reasonableness' of an applicant's apprehension of bias, the Court said:

'(it) must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves.'

The duty to disclose a disqualifying interest or matter is necessarily predicated on 'the nature of the interest and the asserted connection with the possibility of departure from impartial decision-making' being first articulated; the judge's awareness of the interest or matter so articulated; and thereafter, his personal judgment of its disqualifying nature. Accordingly, financial interests, personal friendships and kinship relationships are easily identified and disclosed. Wider interests and associations however, although inevitably present in all judges, are not so easily discernible nor are their disqualifying nature self-evident.

This present case in my view concerns interests and matters, of the latter kind. There can be no denying that I was involved in matters and had and continue to have a personal as well as a professional interest in the events that have occurred in this country since 19th May 2000. But are those interests and my involvement necessarily of a disqualifying kind?

The answer to this question in the first instance, however unpleasant and unsatisfactory, is mine and mine alone and my colleagues' crude and insensitive attempts to arrogate to themselves the guardianship of my conscience is, with respect, to venture where even angels would fear to tread.

I have no difficulty with my colleagues sharing a different opinion from me as to the disqualifying nature of the judges private collective activities between the 19th and 25th of May last year. Plainly my colleagues consider that they are disqualified from hearing this case as a result of what occurred, and I respect their opinions, but that they should choose the occasion of this application to disqualify me for my involvement in the same activities, to publicly reveal their opinions is unfortunate as it is unprecedented.

My colleagues would do well to remember the salutary remarks of Jacobs J. in his dissenting judgment in The Queen v Watson ex-parte Armstrong (1976) 136 CLR248 at p.294 where the learned judge said:

'... let it be remembered that it is confidence in his own integrity which supports (a judge) not only in his judgment but in all his words and conduct, both that which may be approved and that which may be disapproved. Let none by conjecture or base imputation undermine that confidence, however much they may criticise his judgment or the way he conducts his court. To do so is to shake the foundations of justice.'

I do not doubt that my colleagues in swearing their affidavits were motivated by what they must have considered were higher ideals than 'base imputation' but there is not the slightest doubt in my mind that in doing so they have unwittingly intruded upon my personal integrity and judicial independence as a judge of this court.

As was said by Dickson C.J.C. of the Canadian Supreme Court in The Queen v Beauregard (1987) 30 D.L.R. (4TH) 481 at p.491:

'...the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider - be it government, pressure group, individual or even another judge should interfere in fact, or attempt to interfere with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence.' (my underlining for emphasis)

Just as independence and impartiality are fundamental traits of a judicial officer no organisation, not even the courts, could function without confidentiality, probity, loyalty and most importantly, trust. These are not just high sounding words or pious sentiments, they are essential to the proper functioning of any organisation, no working relationship could survive for long or function effectively without them. To borrow an example from the disciplined forces what is the worth of a regiment or platoon without 'esprit de corps'?

Recognising this, the law has provided, in well established circumstances, protections against any disclosure and breaches of confidence whatever the motivation. So, a wife although competent is not a compellable witness against her husband; Discussions in cabinet and diplomatic despatches are absolutely privileged from disclosure as are the names of police informants and official state secrets are not amenable to the process of discovery.

In other words, there are some relationships, documents, and occasions which the law accepts and recognises cannot be allowed to be disclosed even in a court of law because to undermine them would be contrary to the public interest and lead to the utter ruin of the relationship or interest sought to be protected and which the law holds dearer than absolute transparency or even the public interest that in the determination of disputes the courts should have all relevant material before them.

This is not to say that leakages do not occur of cabinet discussions or official secrets, they do, and the law seeks to prevent these happening where it is possible by the grant of prohibitory injunctions. Similarly it would be intolerable if the secrecy of cabinet discussions or advice to the Head of State from government officials could be easily accessed and publicly disclosed by the mere threat of the issuance of a subpoena as my colleagues appear to infer in their affidavits. Quite simply such documents can not be so easily accessed but I shall have more to say on this later in this ruling.

Suffice it to say that the clumsy attempt by my colleagues to undermine me in this present application are unworthy and I suggest reveals more about them than it does me. It also speaks volumes of the environment in which I work and the relationships that exists between the judges of this Court. These are characterised by an absence of collegiality, backbiting, envy, hidden-agendas, hypocrisy and disloyalty. By comparison Hamlet's Denmark is a holiday camp.

I turn next to deal with ground (3) which can be quickly and briefly disposed of. The ground reads:

'That the First Applicant is a prominent component of, and its Executive Director Rev. Akuila Yabaki a leading figure in the NGO Coalition on Human Rights which has made several well publicised appeals to the President, and continues to do so, for the President to institute an inquiry into the conduct of the Honourable Mr. justice Daniel Fatiaki and certain judges with a view to their removal from office. For this reason CCF has well founded apprehensions of possible bias on Mr. Justice Fatiaki's part in the determination of its case now before the Court.' (my underlining for emphasis)

The evidence in support of this so-called 'ground" and which counsel very helpfully drew to my attention is contained in the principal affidavit of Akuila Yabaki filed on 4th May 2001, in particular there were two (2) letters 'AY10' & 'AY11'; a press statement 'AY12'; and a newspaper article 'AY13' all of which makes some oblique references to me by name.

It is unnecessary to deal separately with the annexures which were adequately addressed with counsel during the course of the hearing as recorded in the following extract of the court transcript which I find helpful to repeat (after counsel had helpfully identified the evidence)

'JUDGE FATIAKI: I see. Well could you assist me? Were any of these letters, or press releases or correspondence copied to me?

SIR VIJAY : I do not think so. 1 do not think the letters were.

JUDGE FATIAKI : Well, do you have any evidence that they were copied to me (10, 11, 12 and 13)?

SIR VIJAY : I am not aware of any evidence that they were copied to you because ...

JUDGE FATIAKI : Do they indicate on their list of persons to whom they are copied (where relevant) that they were copied to me?

SIR VIJAY : As 1 have already stated, the letters do not indicate that they were copied to Your Lordship, but there is evidence that the same criticism was, in one way or the other, released to the press, and 1 have referred to the press cutting.

JUDGE FATIAKI : So the first applicant's fear relative to this particular ground is something like this; we have made calls for Your Lordship's removal from office to the President which we have not copied to you. We have, however, published those in the newspapers and we assume that Your Lordship has read them and we fear that you might, like the Chief justice, retaliate, Is that it?

SIR VIJAY : That is exactly it.

JUDGE FATIAKI : Do you have any case law authority that might support this particular proposition?

SIR VIJAY : The proposition?

JUDGE FATIAKI : The proposition that an applicant with similar circumstances as this successfully sought and obtained the disqualification of the tribunal before whom he was.

SIR VIJAY : I cannot say that I have an authority where the factual situation was identical, but the general term in, which apprehension of bias is discussed in judgments, it makes it clear that the apprehension of bias may arise because of a judge's relationship or connection with a party. That relationship may be either close and friendly as to indicate a bias in favour of that person and therefore the other party will suffer and he will not get a seemingly impartial hearing. There is also reference that it may be an adverse relationship or attitude towards a party. So it is described in general terms in that way. If Your Lordship refers to the two Australian cases that I have quoted, they deal with a huge number of cases.

JUDGE FATIAKI : I was really confining myself to the question of an authority which says that the subjective apprehension of an applicant is critical and sufficient for the disqualification of a judge.

SIR VIJAY : If it fits the bill of being ground for entertaining apprehension which would be shared by an objective bystander, that is good enough ground.'

No authority has been provided to the court to support the proposition that an applicant's subjective apprehension of bias is per se a sufficient ground to disqualify the judge about whom the apprehension was held.

Indeed I would be surprised if such an authority exists.

In other words this allegation made in particular by the first applicant CCF runs something like this - Since we have been instrumental in making public claims for Justice Fatiaki's removal from office for 'alleged misbehaviour' we have a genuine fear that we will not get a fair hearing and an impartial consideration of our case against the current President before him.

Two reasons may be advanced for rejecting such an allegation. Firstly, the applicant's fear is more a reflection of its own subjective perception rather than an objective assessment by an informed observer based on relevant and admissible evidence asking himself the question: 'is there a real danger that the judge is biased?'

In Raybos Aust. Pty. Ltd. v Tectran Corporation Pty. Ltd. (1986) 6 N.S.WLR 272 the N.S.W. Court of Appeal in rejecting the application for leave to appeal in that case against a refusal by the trial judge to disqualify himself on the grounds of apprehended bias held:

'Whether or not a judge should disqualify himself from hearing a case on the ground of bias requires an objective appraisal of the materials before the court. That a party has a subjective (albeit firm) apprehension of bias is not of itself sufficient to warrant, or require, the disqualification of the judge.

Even more trenchant are the observations of Mason J. in Re: Renaud Ex parte C.L.J. [1986] HCA 39; (1886) 60 A.L.J.R 528 when he said at p.532/533:

'It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. ... In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established'... although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of the judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.'

(my underlining)

It may not be commonly understood, that, besides being human, judges are, by training and experience, quite capable of exercising a high degree of personal and emotional detachment from the cases that they are called upon to determine. The Second equally important reason is that, if a litigant could be permitted through the launching of a public vilification campaign against a judge to then successfully claim that the judge is thereby reasonably likely to be biased against him, then, no judge would be secure. No litigant ought to be allowed so easily to change his tribunal.

A further reason for rejecting this 'ground' arises from the nature of the claims made in the applicants Originating Summons which primarily raises questions concerning the construction of various constitutional provisions and the application of that construction to the largely undisputed facts of the case.

These are not claims that I imagine, involves serious disputes as to the facts nor is it one which requires the court to make any findings as to the credibility of the applicants or form any views as to the desirability, utility, or otherwise of any action that the current President might have taken since the judgment of the Fiji Court of Appeal in Chandrika Prasad's case. It is pure and simply a case of constitutional construction which is perhaps the purest legal question that a court can be called upon to determine. Ground (3) is accordingly dismissed as misconceived and groundless.

I turn next to consider grounds (1) & (2) of the application which are the principal planks on which this application must either succeed or fail. They are expressed as in the following term

1. That the Honourable Mr. Justice Fatiaki has common cause with the First Respondent His Excellency the President in the issues raised by the Applicants as to automatically disqualify him from hearing and deciding the Applicants' claims in their substantive Motion without any need to consider the question of apprehended possible bias on His Lordship's part.

2. That the Honourable Mr. Justice Fatiaki has effectively prejudged the same or closely related issues as the Applicants have raised in their substantive Motion, and has thus given the Applicants and any reasonable bystander a well founded apprehension of possible bias on his part."

Plainly ground (1) raises 'automatic disqualification,' for 'common cause', and ground (2) raises 'apprehended possible bias" on the basis of 'prejudgment of the same or closely related issues'. It is common ground that the primary relevant evidence relied upon to support both grounds are the affidavits of John Edward Byrne and Nazhat Shameem. I shall return to these affidavits later in this ruling but first let me turn my attention to the law.

Counsel opened his general submissions which lasted for the best part of a full day's hearing, with an interesting discourse on the relevant law and legal principles applicable to the present application. Much of the submission is common ground and accepted by the parties and by me and I am grateful for the assistance and the industry of counsel.

For present purposes however it is only necessary to refer to the clear and express terms of Article 29(2) of the Constitution which provides:

'Every party to a civil dispute has the right to have the matter determined by a court of law, or if appropriate by an independent and impartial tribunal.'

and Art. 118 which declares:

'The judges of the state are independent of the legislative and executive branches of government.'

These dual constitutional requirements of 'independence' and 'impartiality' of a criminal court was comprehensively addressed by the Supreme Court of Canada in the context on a similarly worded provision in the Canadian Charter of Rights and Freedoms in Valente v The Queen (1986) 24 D.L.R. (4th) 161 where Le Dain J. in delivering the unanimous decision of the Court said at p.169:

'Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values and requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word 'impartial'...connotes absence of bias, actual or perceived. The word 'independent'...reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the Executive Branch of government, that vests on objective conditions or guarantees.'

Later in his judgment the learned judge identifies the essential minimum requirements for securing the judicial independence of individual judges as 'security of tenure'; 'financial security'; and 'institutional independence of the tribunal' with respect to matters of administration bearing directly on the exercises of the judicial function such as (the) assignment of judges, sittings of the court and court lists, as well as the related matters of allocation of court-rooms and direction of the administrative staff engaged in carrying out these functions.

It is immediately plain that the term 'impartiality' as a concept, is more narrowly focused than 'independence' which extends to cover the institutional and administrative independence of the court. In other words independence is 'status oriented', impartiality on the other hand is personal or individual oriented. [see the scholarly analysis of these dual concepts in the judgment of Lamer C.J. in the Reference concerning the Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island (supra)]

Mr. Q. Bale in his submissions however advanced a somewhat novel and far-reaching proposition that the dual constitutional imperatives of 'impartiality' and 'independence' are the very essence of a court of law and must be presumed to exist in each and every court unless rebutted (by the applicants). I confess that I was much attracted to the proposition and expressed, at the time, my regret that such an argument was not advanced before the Supreme Court in Amina Koya v The State Cr. App. No. 2 of 1997 (unreported).

Be that as it may I am content to refer to the judgment of the Supreme Court in Amina Koya's case for its convenient and succinct exposition of the duality of approaches that has developed within the Commonwealth in addressing the question of bias in the form of prejudgment. In its unanimous judgment the Supreme Court (Sir Tuivaga C.J., Lord Cooke of Thorndon, Sir Anthony Mason) said (at pp.12/13):

'There is some controversy about the formulation of the principle to be applied in cases in which it is alleged that a judge is or might be actuated by bias. In Australia, the test is whether a fair-minded but informed observer might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case (Livesey v N.S.W. Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294, 300; Re J.R.L; Ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342 at 349, 351, 359, 368, 371; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 575, 584; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 29). In England, however, the House of Lords, in R. v Gough [1993] UKHL 1; (1993) AC 646, decided that the test to be applied in all cases of apparent bias involving justices, tribunal members, arbitrators or jurors is whether in all the circumstances of the case there is a real danger or real likelihood, in the sense of possibility, of bias. In the later case, Webb v the Queen [1994] HCA 30; (1994) 181 CLR 41, which concerned a juror, the High Court of Australia, despite Gough, decided that it would continue to apply the reasonable apprehension or suspicion of bias test, and held that in the circumstances of the case a fair-minded but informed observer would not have apprehended that the juror or the jury would not have discharged their task impartially.

Subsequently, the New Zealand Court of Appeal, in Auckland Casino Ltd. v Casino Control Authority (1995) 1 NZLR 142, held that it would apply the Gough test. In reaching that conclusion, the Court of Appeal considered that there was little if any practical difference between the two tests, a view with which we agree, at least in their application to the vast majority of cases of apparent bias. That is because there is little if any difference between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias.

In the present case, we are not concerned with the question whether a judge or juror should be disqualified at the commencement of an action or trial, that is, when the course of the proceeding lies ahead and one is necessarily contemplating the realm of possibilities.'

In so far as I may be called upon to choose, I prefer the judgment of the House of Lords in Regina v Gough to the alternative approach and test suggested in the Australian decisions referred to in the judgment of the Supreme Court in Amina Koya.

In my view given the constitutional presumption referred to by Mr. Bale, it is imperative that the Courts retains the jurisdiction to decide the question of the disqualification of a judicial officer and further, that it do so, on the basis that the court itself reflects what is reasonable and finally, that the test or question be: 'whether there is a real danger or possibility of bias on the part of the tribunal under scrutiny'?

A similar divergence of approaches appears to have arisen regarding the automatic disqualification' rule enunciated in Dimes v Proprietors of Grant ]unction Canal [1852] EngR 789; (1852) 3 H.L.C. 759 where Lord Campbell said, in an oft-cited passage, (at p.793):

'No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not confined to a cause in which he is a party, but applies to a cause in which he has an interest.'

The passage was recently referred to in the judgments of the House of Lords in R. v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No.2) [1999] UKHL 1; (1999) 1 All ER 577 where the House of Lords made plain that the rule extended to a limited class of non-financial interests. Delivering the leading judgment, Lord Browne-Wilkinson said at p.588:

'My Lords, in my judgment, although the cases have all dealt with automatic disqualification on the grounds of pecuniary interests, there is no good reason in principle for so limiting automatic disqualification. The rationale of the whole rule is that a man cannot be a judge in his own cause. In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties.'

His lordship then went on to warn (at p.589):

'It is important not to overstate what is being decided. ... Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties.

However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest.

More recently however in Ebner v Official Trustee [2000] HCA 63; (2000) 176 A.L.R. 644 Gleeson C.J. in the High Court of Australia delivering the judgment of the majority (Kirby J. dissenting) said (at para. 25):

'The concept of 'interest' is protean.'

(at para.28):

'There is no justification for having different principle for interest and association.'

(at para.30):

'In each case, however, the question must be how it is said that the existence of the 'association' or 'interest' might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits .... Similarly, the bare identification of an 'association' will not suffice to answer the relevant question.'

(at para.54):

'Having regard to the current state of the common law in Australia on the subject of disqualification for apprehended bias, we do not accept the submission that there is a separate and free-standing rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge is presiding .... For the reasons already explained, a rule of automatic disqualification would be anomalous ....'

Despite the apparent divergence in views and noting the force in the decision of the majority in Ebners case, nevertheless I am inclined to accept that this Court should continue to recognise the separate automatic disqualification rule in Dimes case for the time being.

In doing so I bear in mind the judgment of the Court of Appeal in Locabail Ltd v Bayfield Properties [1999] EWCA Civ 3004; (2000) 1 All ER 65 where the Court in reaffirming the rule in Dimes case as explained and expanded in Pinochet said, at p.77 (para.25):

'It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided....'

Then after enumerating several disqualifying and non-disqualifying factors, the Court said (at p.78):

'We repeat: every application must be decided on the facts and circumstances of each case. The greater the passage of time between the event relied on as showing a danger of bias and the ease in which the objection is raised, the weaker (other things being equal) the objection will be.

Finally I return to the last judgment which was particularly relied upon by counsel for the applicant namely, Re: Polites ex p. Hoyts Corporation Pty. Ltd. (1992) 173 CLR78 where their honours of the High Court of Australia said (p.88 para.10):

'A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of court if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A Fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable ground for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination.'

In Amina Koya's case the above passage was cited to the Supreme Court and was rejected as having no application to the case in which the trial judge who was earlier in private practice had informally advised counsel on the basis of information provided to him by counsel 'that the (committing) magistrate should hold there was no case to answer'.

Similarly in the present application I would distinguish the facts of Polites case from the present on the following grounds:

(1) By no stretch of the imagination can it be said that I and the current President had a professional 'solicitor/client' relationship;

(2) I did not infact ever give the current President any professional advice or opinion either orally or in writing;

(3) The context and circumstances under which the current President made his challenged decisions, are not even remotely similar to that pertaining at the time that Document 'B' was prepared and attempted to address during the former President's term; and

(4) There is not a shred of evidence that the current President had any access to Document 'B' or had in fact acted upon the advice contained there in.

So much then for the law let me now return to the affidavits. The affidavit of John Edward Byrne may be briefly summarised as follows: As a judge of the High Court he attended four (4) private meetings of judges at which a press release was drafted and an advice coauthored by me was presented and discussed and I had at a later meeting read out a proposed Judicature Decree at the invitation of the Chief Justice. He had telephoned the Chief Justice on two (2) occasions and expressed his concern about the granting of an amnesty to Speight. He received a critical letter from the Fiji Law Society and he had agreed with several other judges to write a letter to the Law Society dissociating himself from the Decree. No copy of the Decree or any letter to the Law Society was annexed to his affidavit.

Nazhat Shameem's affidavit was similar in several respects to that of John Edward Byrne except that she does not refer to the meeting at which the Judicature Decree was read out by me. She however attended an additional meeting of the judges not attended by John Edward Byrne, at which I produced an opinion based on Section 106 of the Constitution and at which it was decided that the 'S.106 opinion' would be sent to the former President despite her 'expressed grave reservation'. Her request to write a dissenting opinion at that meeting was also ignored. She had earlier drafted an opinion which she gave to Justice Ratu Joni Madraiwiwi (as he then was) in which she expressed the view that the contents of Document 'B' was not correct. No copy of her dissenting opinion or the 'S. 106 opinion' was annexed to the affidavit.

Both affidavits had common annexures, the first being a Press Release by the judges (Document 'A'), and the second, comprised of a five (5) page opinion in identical terms to 'AY6' except that my colleagues copies were prominently stamped 'IN CONFIDENCE' on the front page (referred to throughout this Ruling as Document ' B').

These particular affidavits have a common, relevant background and context which cannot be ignored. The statements that I was present at private meetings of the judges of the High Court including those at which the confidential Document ' B' and the 'S.106 opinion' of the Constitution was discussed is true, as are the statements that I coauthored both opinions.

It is also sufficiently plain from both affidavits that the judges meetings were convened at short notice during the time when the country was in a state of utter turmoil. Rioting, looting and burning had occurred in central Suva City; Parliament was under armed seige with most of the parliamentarians held hostage; the President had declared a State of Emergency for the entire nation and had issued Public Emergency Regulations which, amongst other things, authorised the imposition of a curfew. In the words of Gates J. 'the country appeared to be drifting daily into further anarchy.' It was in that volatile situation that the two (2) documents were prepared and discussed amongst the judges of the High Court.

I make no apologies for attending the meetings and participating in the discussions. Indeed I would go so far as to say that it would be abnormally strange even callous on my part, for me, as a citizen, voter and judge living in Suva at the relevant time not to have any thoughts or interest in the events unfolding around me and I make no apologies for being interested and concerned and in writing about and voicing my personal opinions in a private meeting with my colleagues about the possible options available to the President who was the sole surviving executive authority left in the country at the time.

In Turner v Allison (1971) NZLR833 Turner J. (as he then was) at p.847 said:

'It is not of course enough that the tribunal; or some member of it, has expressed a preconceived opinion, even one strongly held, on the matter to be tried. 'I know of no reason for saying that the expression of a man's opinion on any subject should render him unfit to adjudicate upon it' said Mellor J. in R. v Alcock 37 L.T. 829, 831; and Cockburn C.J. in the same case said 'there is no authority for saying that an expressed opinion is sufficient to oust a Magistrate's jurisdiction'.'

It has further been said that 'preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a (disqualifying) bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded," per Charles J. in Regina v London County Council ex parte Empire Theatre [(1894) 71 L.T. 638 at 639].

Before I leave my colleagues' affidavits and deal with counsels submissions concerning Document 'B', there is one other incidental and unfortunate matter that arises from my colleagues' affidavits.

If they are believed and there is no reason to doubt them, then Justice Gates was notably absent from both the judges meetings at which the respective opinions were tendered and discussed. Whatever information he had concerning the meetings and the nature and purpose of the opinions discussed must, therefore have been reported to him 'secondhand' and, as such, is inadmissible hearsay in a court of law. That is elementary.

Given the nature of much of the evidence deposed in the applicant's affidavits and at the risk of extending this ruling, it is nevertheless necessary that I set out some of those elementary principles dealing with the 'hearsay rule'.

In Teper v R (1952) AC480 the Privy Council in allowing the appeal against a criminal conviction based on the reported utterances of a woman at the scene of the crime who was not called as a witness at the trial, said of the rationale for the rule, (at p.486):

'The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and is not delivered on oath.'

Then in R v Myers (1965) AC 1001 the House of Lords despite being invited to do so, refused to relax the rigours of the hearsay rule holding:

'... that it was established law that as a general rule hearsay evidence was not admissible and that authority must be found to justify its reception within some established and existing exceptions to the rule for to countenance new exceptions thereto would amount to judicial legislation.'

Finally, and to bring this 'fundamental' rule home to our shores, I refer to the reported judgments of the Privy Council in two (2) well known local cases in which the Privy Council set aside the conviction in one, and in rejecting the appeal of the Comptroller of Customs in the other, said in Patel v Comptroller of Customs (1965) 3 All ER 593 at 597:

'From an evidentiary point of view the words ('Produce of Morrocco' printed on the imported bags) are hearsay and cannot assist the prosecution. The matter need not be elaborated in view of the decision of the House of Lords in Myers v D.P.P. given after the Fiji Courts had considered the case. The decision of the House ... makes clear beyond doubt that the list of exceptions to the hearsay rule cannot be extended judicially to include such things as labels and markings.'

Plainly the rule against the admissibility of hearsay cannot be so easily ignored under the guise of a new exception of 'notorious facts' nor can it be avoided merely because the judge himself asserts 'it is well known' (whatever that may mean).

Knowing all that, and undeterred Justice Gates devoted no less than six (6) pages of his judgment in Chandrika Prasad v Republic of Fiji and the Attorney-General of Fiji Lautoka Civil Action No. HBC277 of 2000, to a discourse on the proper role of the judiciary in a constitutional crisis. That was never an issue before him in the case; no orders were sought concerning the behaviour of the judges during the crisis facing our country shortly after the May 19th coup; and no affidavit deposed to the action(s) of the judges at the time.

In other words, the criticism of the behaviour of the Chief Justice, justice Scott and myself which the judgment referred to as '3 (un-named) judges of the High Court' was uncalled for and gratuitous. It was based on inadmissible hearsay and constituted a flagrant breach of confidence. The fact that we were not named in Justice Gates' judgment does not make the criticisms acceptable, it merely aggravates it. The omission was both cowardly and unjust in so far as, besides Justices Gates, Shameem and Madraiwiwi, there remained at the time no less than seven (7) other serving judges of the High Court to whom the criticism might have applied.

The failure to name the judges being criticized was nothing more than an exercise in mischievous 'muck-raking' and panders and promotes further public gossip as to the identities of the judges involved. If this was an example of the enforcement and pursuit of human rights then it is one that I hope never to emulate in the discharge of my duties.

The self-righteousness and personal aggrandisement evident in Justice Gates criticism of the '3 (unnamed) judges' is only matched by the audacity that prompted it. To him must go the dubious honour of being the first judge of this court to publicly reveal the private and confidential deliberations of the judges of this Court.

I have said enough about this whole sordid affair and I must now return to the nature and effects of Document 'B' which counsel accepted was fundamental to this application.

Plainly Document 'B' which treats the President in the third person, was a confidential discussion paper prepared solely for the judges of the High Court to focus, facilitate and prompt open discussion with a view to assisting the Chief Justice in formulating whatever assistance he considered appropriate to offer the former President during the constitutional crisis facing the country at the time - nothing more, nothing less!

With all due respect to Sir Vijay, it is an unwarranted legal 'sleight of hand' to extend the document's (Document 'B') influence beyond the 27th of May 2000 or to remove it from the factual context and circumstances in which and to which it was addressed, and then apply it to decisions of the current President taken ten (10) months later after the authoritative judgment of the Court of Appeal in Chandrika Prasad and in a factual context entirely different from that which faced the former President in May 2000 and, all that, in the face of the sworn assertion by the current President's permanent secretary that 'there is no record of such advice in the official records of the (President's) files'.

In this latter regard there is not a shred of evidence as to the actual advice, (written or oral), that was given by the Chief Justice to the former President and indeed the subsequent actions of the former President in invoking Section 106 of the Constitution which is evidenced in his televised address to the nation tends to suggest that Document 'B' did not form part of any advice the Chief justice might have given to the former President and, even if it did (upon which there is not the slightest evidence), then plainly the former President did not in fact accept it or act upon it in any way, shape, or form.

Even if one accepts that the former President publicly declared that he had dismissed the Coalition Government, that still does not mean that he was implementing the advice proffered in Document 'B' (which no where uses the word 'proroguing' or mentions either Sections 106 or 99 of the Constitution), indeed, it is more likely that he had acted on the later 'S.106 opinion' disclosed in Justice Shameem's affidavit.

The former President's televised address to the nation on 27th May 2000 reveals all. H.E. said and I quote:

'I was looking for and 1 think 1 have found the alternative constitutionally viable route through the present crisis, for the President, myself, to invoke Section 106 of the Constitution which provides and 1 quote

'The President may appoint a minister to act in the office of another minister (including the Prime Minister) during any period or during all periods when the minister is absent from duty or from the Fiji Islands or is for any other reason unable to perform the functions of the office.'

I think there can be little doubt now, given the existing hostage crisis, that the present Prime Minister Mr. Mahendra Chaudhry is not only absent from duty but also is unable to perform the functions of the office. Thus the conditions precedent to the exercise of the power of Section 106 which I have just read daily exists including the exclusion of the Section 99 of the Constitution.

It should be noted, however, that I am obliged under the section to appoint an existing minister to act. There are several ministers of the Coalition Government who were never arrested and who could quite plausibly be appointed as acting Prime Minister but it must be made very clear to the acting appointee that the period in which I wanted him to act will be very temporary solely to enable me to take three steps. That he should advise me under Section 99(1) of the Constitution to dismiss all existing ministers in the present Cabinet, thus leaving the President with a clear slate to appoint a caretaker Prime Minister or other advisors. Advise me to prorogue the House of Representatives by proclamation under Section 59(2) subsection 2 of the Constitution for six months thus buying time for me to try to set things in order and then to tender his resignation as acting Prime Minister thus to enable me to retain unfettered executive authority to govern the country in the absence of a Prime Minister, cabinet or a sitting Parliament.

That is what has already been done and I have made this prorogation of Parliament. [Aside ... Has it been published?] And that's where we are today. ...'

(my underlining for emphasis)

In the light of H.E's address making specific reference to Sections 106 & 99(1) of the Constitution and the two (2) notices published in the Extraordinary Issue of the Fiji Islands Government Gazette dated 27th May 2000, and the sworn evidence of the former President's official secretary that the former President, and I quote, '... on his (Ratu Tevita's) advice dismissed the Chaudhry Government', counsel's forceful and persistent suggestion that the former President had acted on the advice contained in Document 'B' is, on the applicant's own evidence, plainly wrong and may be finally laid to rest.

Needless to say Ratu lsireli Vuibau in his affidavit filed in the present application does not accept that he was dismissed by the former President; and three (3) Queens Counsels who appeared before the Fiji Court of Appeal at the hearing of the Chandrika Prasad appeal agreed that the (former) President did not dismiss the Prime Minister or his Government'. Still in the face of such formidable odds Sir Vijay persists in the delusion that a government in power (albeit held hostage) may be dismissed merely on the President's verbal say so. I reject the submission that the former President in any, way, shape or form acted on the advice contained in Document 'B'.

I turn next to consider the applicants' evidence that purports to link Document 'B' (and by implication, me) to the actions and decisions of the current President the subject matter of the applicant's challenge in the substantive Originating Summons.

The evidence which is nowhere to be found in my colleagues' affidavits, may be summarised as follows: it is claimed in inadmissible hearsay which is categorically denied, that the Chief Justice had advised the current President on 'the way forward' (whatever that may mean) after the decision of the Court of Appeal upholding the 1997 Constitution and counsel argues (see para.12 of his written submissions) that it may be reasonably assumed that the Chief Justice's actual advice to the current President (upon which there is not an 'iota' of evidence), was either exactly the same or similar to that contained in Document 'B' and, since I was involved in formulating the advice contained in Document 'B' therefore, despite my recorded denials in the present proceedings and the sworn statement by the current President's permanent secretary that: '... he is not aware of any advice or record of any legal or other assistance given to the office of the President by Judge Daniel Fatiaki at any time during the current political crisis especially in relation to the decisions and actions of the President being challenged by the applicants in this action.' (para.23), I, nevertheless, can be said to have prejudged the actions and decisions of the current President even though they occurred some ten (10) months after Document 'B' was created.

The applicants' desperate attempts to cast Document 'B' in a sinister mould and to elevate it into the basis for alleging a 'common cause' on my part with the current (not former) President, of events that had not yet occurred and did not occur till ten (10) months later and after the judgment of the Fiji Court of Appeal in the Chandrika Prasad case and where the current President denies having ever seen or received any advice from the Chief Justice (let alone Document 'B'), is a 'flight of fantasy'.

This unsupported allegation and that is all it is, is a classic case of 'guilt by association' irrespective of any actual involvement on my part in the tendering of advice to the current President. In the face of such an irresponsible allegation no answer is possible or necessary and I reject it now as I did during the course of the hearing.

When counsel's sometimes barbed interrogation of me in Court proved futile and it appeared the applicant's evidence fell well short of linking Document 'B' to the decisions of the current President being challenged, a matter which was plainly necessary to be 'firmly established' by the applicants, Sir Vijay as a last resort invoked the 'legal fiction,' that the advice in Document 'B' was given to the Office of the President and not to the Office-holder.

With respect, that is a pedantic distinction without a difference. The President of this State is not 'an office', he is a human being appointed under the supreme law of the land by the Bose Levu Vakaturaga (Section 90) for a term of five (5) years (Section 91). He or she is vested with 'the executive authority of the State' (Section 85) and required under the Constitution to perform a multitude of duties mostly on the advice of Cabinet or a Minister (Section 96), but also occasionally '... in his or her own judgment' (Section 98).

The above-mentioned provisions of the Constitution makes it abundantly clear that the President is not an Office but a living, breathing, thinking human being capable of receiving and acting on advice and equally capable of rejecting advice that he or she finds unacceptable. Accordingly, in agreement with the undoubted 'commonsense' of Mr Matawalu's submissions in this regard, I reject the 'legal fiction' that implies that the incumbent of the highest Office in this nation is irrelevant for our present purposes.

Needless to say the submission is premised on the false assumption that the current President either had access to Document 'B' or the Chief justice had advised him in similar terms to that contained in the document.

I say 'false' because not only have the applicants not provided any evidence to support the assumption, on the contrary, the permanent secretary of the current President has deposed that '... there is no record of such advice in the official records of the (President's) files' and further he denied '... that the President had sought the legal or other advice of any judge or the Chief Justice to enable him to make the decisions or take the actions which are being challenged by the Applicants in the main Action ....'

The assumption is groundless and is rejected out of hand.

Then there was the argument that the current President as one of the Respondents named in the applicants Originating Summons, had a 'cause' to seek to sustain the legality and correctness of his challenged decisions and actions.

The fallacy of that argument is self-evident. In the first place, the current President is only before this Court because the applicants named and served him with the Originating Summons; secondly, a 'cause' is defined in the High Court Rules as 'any action, suit or other original proceeding between a Plaintiff and a defendant'. Plainly it is the person who institutes or commences a proceeding by way of an original or originating process that can properly be said to have a 'cause' before the Court not someone who merely responds to it; and finally, as Mr Matawalu correctly submits, it is the applicants who carry the legal and evidential onus and burden of establishing their respective claims for relief, not for the Respondents to disprove the applicants claim or justify the current President's actions which are in any event, assumed to be valid and effective until overturned ('Omnia praesumuntur rite esse acta'.

On that basis alone this present case is, in my view, plainly distinguishable from the Pinochet case where Lord Browne-Wilkinson identified the following 'critical elements' to his decisions (ibid at p.69):

'(1) that AI (Amnesty International) was a party to the appeal;

(2) that AI was joined in order to argue for a particular result;

(3) the judge was a Director of a charity closely allied to AI and sharing, in this respect, Al's objects.'

There simply is no evidence or basis to support counsel's contention that I have a 'common cause' with the current President sufficient to automatically disqualify me without more.

Furthermore, I have no hesitation also, in saying that no reasonable informed observer, knowing the above circumstances, could objectively entertain the view that there is a 'real danger or real possibility of bias' on my part in hearing the applicants Originating Summons.

Grounds (1) & (2) are accordingly dismissed as unfounded and not 'firmly established'. That finally disposes of all the applicants grounds for making this application but this ruling cannot end here without correcting some misconceptions so evident during the course of the hearing of this application.

For instance, something needs to be said about the tendering of advice by the Chief Justice as head of the judiciary to the President as 'Head of State' (Section 86), This has been painted as something bordering on the abhorrent, so fundamentally flawed as to undermine the very doctrine of the separation of powers and the independence of the judiciary.

Such polemics does not withstand close examination. In the constitutional history of this country since 1970 there have been at least two (2) albeit not widely publicised occasions, when the Chief Justice of this country gave advice to the Head of State's representative on what constitutional options were available for him to take.

The first, occurred when the former Chief Justice Sir Clifford Grant advised the first Governor-General, Ratu Sir George Cakobau on his constitutional powers under the 1970 Constitution concerning the appointment of the Prime Minister after the 1977 elections.

This is a matter that needs to be emphasised. The appointment of the Prime Minister of this country is not (and I repeat not) decided in an election or at a political party caucus (as some may like to think). It is a decision that our supreme law vests personally in the President acting on his or her deliberate judgment (Section 98). There is no constitutional 'right' to be appointed Prime Minister or an unlimited 'right' of the Prime Minister to choose his cabinet [Section 99(3), (4) & (5)]. Neither of these features exists in our constitutional democracy (however desireable). The late S.M. Koya would be the first to agree with the truth of this proposition.

Having said that, the categorisation that the opinions expressed in Document 'B' is 'political' is naive in the extreme. The Constitution of this country is a legal as well as a political document and, whilst numerous sections in it, especially those concerning Cabinet Government involve the taking of 'political decisions' (giving the term its natural and ordinary meaning) by the person in whom the decision making power is vested, that does not and cannot detract from the fact that such empowering sections exist in the Constitution which 'is the supreme law of the state', in the interpretation of which this court has an original jurisdiction to exercise.

The second occasion occurred when the Chief Justice's advice was given, occurred in the immediate aftermath of the 1987 military 'coup d'etat' during the month when the then Governor-General, Ratu Sir Penaia Ganilau received and acted upon advice from the present Chief justice assisted by all the Judges of the Supreme Court (as it was then called), on the constitutional steps that were available to him in resisting the perpetrators of the coup.

I accept that both instances occurred during times of constitutional crisis but on neither occasion was the Chief Justice's actions greeted with the slightest 'hue and cry' by any of the members of the Law Society or the news media. Indeed it received wide acclaim. The present occasion is I suggest, equally exceptional and one is tempted to ask what has changed? Is it the advice or is it the fact that it was given that is causing such a stir?

The shallowness of the applicant's argument is self-evident when one considers that under the 1970 Constitution, the Chief Justice acted as Governor-General in his absence (see Section 28). Whatsmore, Section 123 of the 1997 Constitution expressly permits the President (on the advice of Cabinet) to seek the opinion of the Supreme Court on 'any questions as to the effect of a constitutional provision and the Supreme Court must pronounce in open court its opinion'.

This very provision was invoked soon after the 1999 elections (see The President v lnoke Kubuabola and Others Miscellaneous Case No. 1 of 1999) and, although contained in the Constitution, no one has ever challenged or suggested that such a provision might be inconsistent with the doctrine of the separation of powers inherent in the Constitution or undermines the independence of the Courts.

Certainly the Chief Justice of Australia Sir Garfield Barwick was not deterred from advising the Governor-General Sir John Kerr in his dismissal of the Witlam Government and even Shakespeare appears to find nothing wrong in it: Henry V. Part II v.ii 119-21 (King to Chief justice):

'My voice shall sound as you do prompt my ear and I will stoop and humble my intent to your well practised wise direction.'

And how? one might ask is the independence of the judges of the High Court and the Chief Justice secured and reinforced by the involvement of the Prime Minister, the Leader of the Opposition, the Minister of justice and the Sector Standing Committee of the House of Representatives, in their respective appointments [see Sections 118 and 132(1) & (2) of the Constitution].

Did the Council of the Law Society as the self-appointed champion of judicial independence launch a public media campaign against the dangers implicit in these Sections of the Constitution? Did it criticise or call for the rejection of the Constitutional Review Commission's report on these Sections? Did it address international fora and organisations in an effort to solicit support for the removal of this objectionable political interference in the appointment of the judges in this country? Did it canvass members of Parliament in an effort to amend or remove these Sections from the Constitution? Did it publicly or privately support the Chief Justice in his criticism of the potential for interference in the independence of the judiciary posed by these Sections? and finally, and more relevantly for this case, Did the Council of the Law Society offer its services and collective wisdom and advice to the former President during his and this nation's 'hour of need'? The answer to all these and many other like questions is a resounding silence.

It must not be lost sight of that this court has an exclusive original power and jurisdiction to interpret and determine constitutional questions [see Section 120(2)] and the suggestion that judges ought not, in private, to discuss or hold any preconceived opinions as to the meaning of any particular constitutional provision is a counsel of 'Utopian' perfection divorced from reality. I think it was Cardozo who said:

'The great tides and currents which engulf the rest of men do not turn aside in their course and pass judges by.'

Needless to say, the constitutional protection of the independence of the judiciary does not mean that there should be no interaction at all, under any circumstances, between the judiciary and the executive or legislature. That would be practically impossible given the absence of a separate budget for the judiciary and the Privy Council clearly recognised that when it said of the constitutionally independent Office of the Director of Public Prosecutions [Section 170(5)], in another well known local case Attorney General v Director of Public Prosecution (1982) 28 FLR 20 at p.27:

'...(the D.P.P's) department will require supply from public funds, and communications with the Cabinet and Parliament to explain and justify estimates for the office, as well as provision of appropriate accommodation and facilities might be proper matters to be under the general direction and control of the A.G. without eroding the independence of the D.P.P... matters concerning the economical and efficient deployment of staff might fall under the general direction and control of the A.G.'

The Courts in this country are in no different position yet our supreme law declares judges to be 'independent of the executive and legislative branches of government.' (Section 118).

Furthermore in the Canadian Supreme Court decision in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island delivered September 18, 1997, Chief Justice Lamer in delivering the judgment of the majority (La Foret J. dissenting) in declining to answer a particular question posed to the Court 'because it is too vague' said at p.123/124:

'However I do wish to note that the separation of powers which S.11(d) (of the Canadian Charter of Rights) protects, does not prevent the different branches of government from communicating with each other.'

In fact I venture to go further and say that the judges of the High Court as sworn upholders and protectors of the Constitution are dutibound, individually and collectively, to secure by any lawful means available, the continued existence of the Constitution, even, to the extent of giving unsolicited confidential advice to the President whenever the Constitution is imperiled.

So much then for the Chief Justice advising the President. I wish now to return to Document 'B'.

During the course of the hearing and in response to a request from applicants counsel I extended the embargo imposed on Document ' B' preventing it from being published in the media. This prompted a leading headline 'Judge gags media' followed by a cartoon in a subsequent issue of the same newspaper. I said during the hearing that I would deal with counsel's request in my ruling which I now do.

In doing so I iterate what 1 said during the course of the hearing that we are not here dealing with a scrap of paper found in a gutter in the main street of Suva but with a document clearly marked 'IN CONFIDENCE' and, if the applicants assertions are to be believed in that regard, the document contains advice intended for and in fact delivered to the former Head of State within days of the civilian coup that plunged this nation into a human and constitutional crisis of major proportions, the after effects of which continues to haunt us all today.

Given the nature of the document there was little doubt in my mind that it ought not to be allowed to be published in the news media for public consumption. The applicable principle of law is conveniently set out in Vol.13 of Halsbury's Laws of England (4th edn.) at para.86 where it says:

'It is a general rule of law founded on public policy and recognised by Parliament [see the proviso to Section 23 of the Crown Proceedings Act cap.24] that any document may be withheld or an answer to any question may be refused on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest. The rule is a rule of substantive law and may be described as a principle of constitutional law; It is not a mere matter of practice or procedure.'

Of particular relevance to the present circumstances are the observations of the House of Lords in the leading case of Conway v Rimmer [1968] UKHL 2; (1968) AC 910 where Lord Reid said at p.952:

'I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their contents may be. ... To my mind the most important reason (for preventing disclosure) is that such disclosure would create or fan ill-informed or captious (fault-finding) public or political criticism. The business of government is difficult enough as it is, and no government would contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the back ground and perhaps with an axe to grind.'

and Lord Upjohn at p.993:

'The reason for this privilege is that it would be quite wrong and entirely inimical to the proper functioning of the public service if the public were to learn of these high level communications, however innocent of prejudice to the State the actual contents of any particular document might be; that is obvious.'

This rule of law which is commonly although inaccurately referred to as State or Crown privilege belongs to the State and can only be waived by the authority of the State and no one else may waive it whatever the motivation, not even a judge of this High Court whose primary duty should be to protect and uphold the privilege.

Then at para.87 (ibid) the circumstances in which the privilege can arise are described as follows:

'... (in) proceedings in which the Crown is a party (as in the present case where the Head of State and the Attorney-General are Respondents), (between) private individuals in which the Crown is not a party; it may arise at any stage before the trial ...; or (in) setting aside a subpoena or witness summons or otherwise, or at the trial; it may arise in relation to ora1 as well as to documentary evidence; it may arise because of the contents of a particular document or because the document belongs to a class which on the grounds of public interest must as a class be withheld from production. The privilege may thus apply to documents in the possession of a private individual as well as to documents in the possession of the Crown. Privilege can attach irrespective of where a document originates or in whose custody it reposes (this would cover the several illicit copies that Sir Vijay claims exists of Document 'B') provided that it has properly either emanated from or come into the possession of some servant or agent of the Crown.'

(my underlining and insertions)

In the present application my erstwhile colleagues in their respective affidavits profess to 'considerable hesitation,' and 'reluctance' in succumbing to the mere threat of a subpoena.

In doing so, they appear to have overlooked the above-mentioned general 'rule of law,' and the judgment of Glyn-Jones J. in Auten v Rayner and Others (1960) 1 All ER 692 where the learned judge in upholding the objection of the Attorney-General in that case to the production of privileged internal correspondence of the Director of Public Prosecutions Office (DPP), set aside a subpoena duces tecum directed to an officer of the DPP's Office.

In similar vein in Iwi v Montesole (1955) Crim. L. R. 313 in which the Plaintiff sought to put in evidence communications between the Lord Chancellor's department and his advisory committee and the Lord Chancellor claimed privilege. Donovan J. said in upholding the objection:

'If highly confidential communications between magistrates and the Lord Chancellor regarding the appointment and behaviour of magistrates could be canvassed in private litigation great damage might be done to the public interest.'

Finally in Wyatt v Gore [1816] EngR 671; (1816) Holt N.P.299 which concerned a libel action where the defendant was the Lieutenant Governor of Upper Canada and at the trial of the action the Attorney General of the province was called as a witness and was asked as to the nature of some communications made to him by the defendant relative to the Plaintiff's conduct.

The trial Judge Gibbs C.J. in ruling that the Attorney-General was not bound to answer the questions whether the conversations with him concerned public or private business, said:

'The Governor consults with a high level legal officer on the State of his colony; what passes between them is confidential: no office of this kind could be executed with safety if conversations between the governor of a distant province and his Attorney General who is the only person whom such governor can lean for advice, were suffered to be disclosed.

Needless to say the constitutionally-protected 'freedom of the press and other media' to which attention was drawn during counsel's submissions, is not absolute as some may think. It may be limited in the interests of: 'national security'; (in) 'preventing the disclosure of confidential information'; (in) 'Preventing attacks on the dignity of individuals or respected offices or institutions in a manner likely to promote ill will between races or communities'; and (in) 'maintaining the authority and independence of the courts.'

Over the past fortnight this Court and I, in particular, have been the focus of much of the media's attention. I do not wish to dwell on the quality or accuracy of the reporting of these proceedings thus far, except to say, that the news media wields an awesome power in the formation and in informing public opinion.

Commensurate with that power is the onerous duty to exercise it responsibly, in a balanced manner and with a view to imparting accurate information, to the public. There can be no power without the duty.

When someone with the legal acumen of a Richard Naidu can sit in court, read my colleagues affidavits and still get the document which I embargoed wrong, there is an even greater need for accuracy in reporting proceedings to an uninformed public with less access to court documents.

I accept that the claim to State Privilege and the objection to production is normally taken by a Minister of State but that is not necessarily always possible (as occurred in the present application) and 'in the last resort, the judge himself can and should take the objection, for the rule that the public interest must not be put in jeopardy by the production of documents which would injure it is one upon which the court should, if necessary, insist, even though no objection has been taken by any government department.' (ibid para.88).

This has been settled law since before Hennessy v Wright [1888] UKLawRpKQB 117; (1888) 21 QBD 509 where the former Governor of a colony sued the defendant for an alleged libel contained in a newspaper and the defendant sought discovery of documents that were transmitted from the Governor to the Secretary of State for the Colonies with a view to justifying the libel. Objection was taken to the production of the documents for discovery purposes and the question was referred directly by the trial judge to the Court of Appeal, without the Secretary of State deposing an affidavit claiming privilege.

Field J. in upholding the objection said (ibid at p.512):

'First, the publication of a state document may involve danger to the nation. If the confidential communications made by servants of the Crown to each other, by superiors to inferiors, or by inferiors to superiors, in the discharge of their duty to the Crown were liable to be made public in a court of justice at the instance of any suitor who thought proper to say 'fiat justitia ruat caelum' (Let justice be done though the heavens should fal1), an order for discovery might involve the country in a war. Secondly, the publication of a state document may be injurious to servants of the Crown as individuals. There would be an end of all freedom in their official communications, if they knew that any suitor, ...could legally insist that any official communication, of no matter how secret a character, should be produced openly in a court of justice.'

Wills J. for his part in answering the question whether in the absence of objection by a responsible Minister of the Crown, it is the duty of the judge nevertheless to prevent the disclosure, said (ibid at p.518/519):

'... dispatches on matters connected with the public service passing between the governor of a colony and the Secretary of State. A document of this character is undoubtedly in the nature of a state paper. Prima facie and if it is what it professes to be, it is called into existence simply for the service of the state, and it may be expected to relate not to mere matters of business and routine, but to matters of government and policy, and to be in its nature private and confidential. There are, undoubtedly, many matters in respect of which it is the duty of the judge, quite apart from objection taken, to prevent disclosures of a class (of documents) which it would be undesirable in the public interest to permit.'

Then after referring to several precedents his lordship concluded (ibid at p.521):

'I think the cases abundantly shew that no sound distinction can be, drawn between the duty of a judge when objection is taken by the responsible officer of the Crown, or by the party, or when, no objection being taken by anyone, it becomes apparent to him that a rule of public policy prevents the disclosure of the document or the information sought.'

I am satisfied that highly confidential advice to the Head of State of this country, from whatever source, belongs to a 'class of documents' that must be absolutely privileged from publication or public disclosure. The courts however, retain a discretion in all cases, to order the production of the document for its own private examination.

As was said by Lord Simon of Glaisdale in D. v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1977) 2 WLR 201 at p.221:

'If a society is disrupted or overturned by internal...enemies, the administration of justice will itself be among the casualties. Silent enim leges inter arma (silence is the armour of the law). So the law says that, important as it is to the administration of justice that all relevant evidence should be adduced to the court, such evidence must be withheld if, on the balance of public interest, the peril of its adduction to national security outways its benefit to the forensic process....'

Accordingly and in the public interest the order prohibiting the publication of Document 'B' in any way, shape, or form is continued indefinitely and all three (3) court copies of the document are ordered to be removed from the relevant court file.

Finally, it has been stated or suggested on more than one occasion by counsel for the applicants that I have been 'dragging my feet' in this case as evidenced by counsel's public disclosure of my impending brief absence from the country and in his written submission that notwithstanding the clear urgency of deciding the substantive application in this matter with utmost of despatch ... (I) adopted a casual approach to its progress when (I) set the first call date some three weeks after the necessary papers had been filed. I reject the submission as completely unfounded.

In the first place the decisions of the present President being challenged by the applicants in the substantive action were taken on or about the 16th of March 2001. It took the applicants a week to file the Originating Summons which, contrary to counsel's submissions, did not follow the expedited procedure under the High Court Rules 1988.

In form, the applicants' summons did not comply with Form 4 of the Rules nor did it correctly identify the parties as required under Or.7 r.2(2). Had it done so, it would have required the defendants (not Respondents) to return an accompanying Acknowlegment of Service (Or.12 r.8) within 14 days after service of the summons (Or.12 r.4).

Thereafter the Plaintiffs (not applicants) have 14 days within which to serve their affidavit evidence [Or.28 r.2(3)] and after receipt of copies of the Plaintiff's affidavits, the defendants have 28 days within which to serve their own affidavits (Or.28 r.4), and upon receipt of the defendant's affidavits the Plaintiffs have a further 14 days to file further affidavits in reply (Or.28 r.5) and that then closes the filing of affidavit evidence. Clearly, this process of filing and serving affidavit evidence can take anything up to two (2) months to complete before the Plaintiff may apply to the Court for a hearing date to be fixed (Or.28 r.3).

The above are the normal minimum time frames for a general (Form 3) originating summons and must be complied with unless the Plaintiff applies for and obtains a hearing date before or at the same time as the issuance of the originating summons. This latter process is the only feature that differentiates an expedited (Form 4) originating summons from a general originating summons.

In this case the applicants' former solicitors did not apply for a hearing date before or upon issuing the Originating Summons as they should have, instead, the Summons was entitled: NOTICE OF ORIGINATING SUMMONS with a pre-assigned return date 'three days from service upon you of this notice' typed on the face of the NOTICE.

No authorising Order or Rule of the High Court was referred to in the NOTICE as is the usual and normal practice which is perhaps not surprising since there is no such FORM as a 'NOTICE OF ORIGINATING SUMMONS' either provided for in the High Court Rules or referred to in the relevant Orders (7, 12 & 28) that govern the Originating Summons procedure.

Indeed the only relevant notification provided for in the Rules in relation to the Originating Summons procedure is FORM 15 entitled 'Notice of Appointment to hear Originating Summons' (Or 28 r.3). To this very day no such Notice has been filed or issued by the applicants or their solicitors seeking the appointment of a hearing date for the applicant's substantive Summons.

Finally and in order to dispel any misapprehension on the part of Counsel that the expedited (Form 4) originating summons may be adopted as they please, Order 7 r.2 of High Court Rules 1988 clearly provides in sub-rule (1) that:

Every originating summons (other than an ex parte summons) shall be in Form No.3 or, if so authorised or required, in Form No.4 in Appendix A, and every ex parte Originating Summons shall be in Form No.5 in Appendix A.' (my underlining for emphasis)

Plainly, unless 'authorised or required' under the Rules, no party to civi1 proceedings in the High Court may use the expedited originating summons and in this, regard counsel's attention is drawn to 'footnote 3' to para.131 of Halsbury's Laws of England (4th end.) Vol.37 and by way of examples Order 17 r.3(3) & Order 80 r.9(3) of the High Court Rules 1988 which clearly require the use of the expedited FORM.

In this case, in the absence of the usual reference to the authorising Rule on the face of the applicant's NOTICE OF ORIGINATING SUMMONS one can only assume that the applicants former solicitors have irregularly and unilaterally adapted the expedited procedure to the prejudice of the defendants and that ought not to be countenanced or sanctioned by this Court;

Secondly, my court calendar and fixtures are fixed well in advance and any counsel who attends the Deputy Registrar's chambers on any Wednesday of the week will be aware that the earliest available dates that cases can be assigned before me is September/October. In fact during this past fortnight in my concern to accommodate this interlocutory application I have had to vacate my court calendar for the past ten (10) days by referring ten (10) previously assigned matters comprised of trials and chamber applications fixed as long ago as February this year, back to the Deputy Registrar's Chamber list for reassignment of fresh hearing dates later in the year;

Thirdly, the former solicitors of the applicants were advised by letter dated 9.4.01 by the Acting Chief Registrar to make the present application before me 'by motion or summons'. They had three (3) weeks in which to make the application but chose not to, until I ordered the applicant's present counsel to do so on 30.4.01. Needless to say given the time it has taken to finally dispose of this application, if it had been lodged when counsel were advised then it is very likely that it would have been disposed of before 30.4.01. Instead we have lost three (3) valuable weeks on an interlocutory matter which could have been avoided if the applicants former solicitors had themselves acted with the 'utmost of despatch' which the applicants now ask of me; and

Finally, this court only last week offered the applicants the option of withdrawing the present application and proceeding immediately to the substantive summons but that too was cynically declined by counsel.

In light of the foregoing I reject the suggestion that I 'adopted a casual approach' to the applicant substantive summons.

I have said enough and all that remains is for me to make my final orders. The formal order of the Court is that the application is dismissed.

In so far as the applicants Originating Summons is concerned, lest it be thought otherwise, I have no particular or pressing desire to try the applicants substantive Originating Summons interesting as the legal issues may turn out to be.

Accordingly, and consonant with what might be considered an excess of caution on my part, and mindful of the applicants deposed belief (however misguided) that I might unconsciously succumb to the human temptation to exact revenge for their calls for an enquiry with a view to my removal, I have decided to take the exceptional step of referring the file back to the Chief Justice for reassignment to another judge for the hearing of the substantive Originating Summons as he sees fit.

I thank all counsels for the assistance provided to me during the course of the hearing of this application and, in particular, Sir Vijay, for the advocacy skills he so ably demonstrated throughout the hearing of an application that undoubtedly called for some delicacy on his part.

Application dismissed but file to be reassigned to another Judge.

Marie Chan