iji’s Chief Justice Anthony Gates triggers expulsions
- Chris Merritt, Legal affairs editor
- From: The Australian
- November 05, 2009 12:00AM
The breach in relations with Fiji has been triggered by one extraordinary man, Chief Justice Anthony Gates, an Australian citizen who appears to believe the role of a judge includes providing briefings for dictators.
Fiji’s expulsion of envoys from Australia and New Zealand appears to be a direct result of a briefing Justice Gates says he provided to Fiji’s military-appointed leader Frank Bainimarama and to Attorney-General Aiyaz Sayed-Khaiyum.
Commodore Bainimarama has confirmed the briefing was followed by a meeting on Tuesday morning at which “the Chief Justice reiterated his position that the interference by Australian and New Zealand governments in our judiciary undermines the judiciary”.
For most judges, such intimate contact with the executive arm of government might cause unease. But Mr Sayed-Khaiyum said last night the Chief Justice “provided no policy directive, nor did he have any input into policy”.
Suva has accused Australia and New Zealand of interfering in its affairs through its threat of travel sanctions against Fiji’s judges.
After Tuesday’s meeting, Commodore Bainimarama issued a statement that quoted what the Chief Justice had told him. Justice Gates had highlighted the fact that interference in another country’s judiciary was unheard of “in the absence of evidence that members of the judiciary are breaching any laws, either internationally or in Fiji”.
The role of Justice Gates in Fiji society has undergone a major expansion. Mr Sayed-Khaiyum confirmed he had been elevated in the order of precedence so he would now become acting president of Fiji if the newly selected president was absent.
“It happened months ago in a decree that nobody picked up,” Mr Sayed-Khaiyum said.
It was a former president, Josefa Iloilo, who tore up Fiji’s constitution in April but Mr Sayed-Khaiyum said the new role for Justice Gates had no adverse implications for the separation of powers.
“The chances of the chief justice being head of state in the absence of the president is very, very remote,” he said.
For Justice Gates, this promotion is the pinnacle of a career that has flourished as democracy in Fiji has withered.
He came to power in most unusual circumstances. Daniel Fatiaki, who had been chief justice, was suspended after Fiji’s 2006 coup. The then justice Gates became acting chief justice and later, when Justice Fatiaki was removed, he moved up to permanent chief justice.
His promotion in these circumstances did not go unnoticed by the International Bar Association’s Human Rights Institute.
Just before former president Iloilo tore up Fiji’s constitution, the IBA issued an adverse report on the rule of law in Fiji. It warned lawyers to be wary about accepting judicial office from the military-backed government because their appointments could be seen as tainted.
The IBA said the appointment of Justice Gates as chief justice needed to be reviewed to determine if it had breached the Fiji constitution. That review has never taken place.
The sacking of the entire judiciary took place soon after. But after dropping from sight for weeks, Justice Gates stunned the region’s lawyers when he was one of the first judicial officers to agree to return to office under a justice decree rather than the missing constitution.
At the time, grave fears had been held for the welfare of Justice Gates. Few believed this British-born and Cambridge-educated lawyer would accept office after the April upheaval.
The extent of change in Chief Justice Gates can be gauged by the content of a press release he issued on Sunday. It could have been issued by a foreign minister just as easily as a chief justice.
“The governments of Australia and New Zealand have successively now adopted policies of hostility towards the present Fiji government,” Justice Gates said.
It was the impact of this hostility on Fiji’s judiciary that pushed the judge to issue his statement. He outlined two key incidents that he used to justify his conclusion that the nation’s judges were under attack.
Australia and New Zealand have both issued detailed statements that appear to suggest that there are other ways of viewing the “facts” that are outlined in the judge’s press release. Those “facts” formed the basis of the statement by Commodore Bainimarama that explained why he had decided to expel diplomats from Australia and New Zealand.
The incident involving Australia’s alleged interference took place in Sri Lanka, after seven judges and magistrates withdrew applications for Australian transit visas so they could take up positions in Fiji.
The key point here is the timing. Australian consular officials contacted all seven Sri Lankans after they had decided to go to Fiji via Korea, not Australia. This meant the question of whether they were to receive Australian visas was irrelevant.
Australia’s foreign affairs department believes the incident has been misrepresented by the Fijians.
“It is not the case that visas were refused to individuals travelling from Sri Lanka to take up judicial positions in Fiji,” a departmental spokesman said.
“In fact, a decision had been made to issue visas to enable them to transit Australia. They did not travel through Australia, however, as they withdrew their visa applications, having decided instead to travel to Fiji via Korea.”