Yadra bloggers, This is Graham’s speech at the Law Asia Conference in Malaysia as reported in FT today. What Graham is saying is exactly what many of us feel and it comes as no surprise that the illegal junta are not jumping up and down with the judgement because everyone knows it is not worth the piece of paper it is written on. What must be frightening for Gates, Pathick & Byrnes is the fact their judgement has become a permanent stain on their reputation and will follow them to their graves and continue long after they are gone. Well, we at SV say, you reap what you sow.
Sunday, November 02, 2008
THE High Court sidestepped the necessity and effectiveness doctrines in the ruling of the Qarase versus Bainimarama case, said Suva lawyer Graham Leung.
He said the High Court based its decision on “the supposed prerogative powers of the President – in other words the ancient rights of the English sovereign”.
“The decision … sets an unfortunate precedent, especially in a country that has experienced four coups,” Mr Leung said at the LawAsia Conference in Kuala Lumpur, Malaysia.
“In practical terms, that decision has sanctioned the possibility of the military precipitating a crisis and then obtaining presidential approval validating its actions”.
Mr Leung commented on perceptions of judicial independence in Fiji.
He said what the Fiji experience showed was that it was one thing to espouse the relevant principles of judicial independence but “putting them into practice is a lot more difficult”.
“There seems to be no denying that public confidence in the judiciary has taken a battering and that its absolute impartiality is under a cloud,” he said.
He said the legal profession did not have the luxury of remaining mute, “for when it does, it is as much to blame for the state of the judiciary”.
Mr Leung highlighted some of the challenges of maintaining judicial independence in a small jurisdiction such as Fiji.
“Is it possible that had the judges following the Speight rebellion in 2000 maintained collegiality, the Qarase case might have been decided differently? It is difficult to say.
“What is clear, however, that is the differences between the judges have gone beyond professional discourse and rather than healing over time, have worsened.”
Mr Leung said it was time for judges and lawyers of courage to renew their pledges to seek justice under law.
“Fiji is paying a terrible price for its disregard for judicial independence, which once lost, would be difficult to regain.”