Fiji political parties appeal dismissal wrong, says ICJ

Updated 15 March 2013, 17:45 AEST

A prominent Australian legal figure says the dismissal of an appeal against Fiji's political parties decree was wrong in law.

The appeal by Fiji's political parties against the decree was thrown out by Justice Anjala Wati because such decrees can't be challenged in the courts.

The Australian branch of the International Commission of Jurists says the courts in Fiji should not allow their role to be undermined by the coup-installed military government.

Presenter: Bruce Hill

Speakers: John Dowd, president of the International Commission of Jurists.

DOWD: The regime which is non-democratic doesn't displace the constitution of Fiji. This law even if you accept that the regime is entitled to pass laws, cannot remove the judiciary's power to do with matters independently. They can't pass a decree, whatever that may mean in legal terms, saying you can't challenge these proceedings, and then deprive the courts of its jurisdiction. The courts are independent, they are not part of the established administration, they're not part of the executive, they cannot have their jurisdiction taken away simply by saying this cannot be challenged.

HILL: Well, that's in theory, in practice of course that's not how Judge Anjala Wati saw it when she threw this case out. And really given the situation that you've got a coup-installed military government there that has the Administration of Justice Decree that says courts cannot interfere in any of their decrees, what really could she have done otherwise?

DOWD: The fact that you have a decree saying that the court has no jurisdiction doesn't deprive the court of jurisdiction. Courts under this administration are supposed to be independent, therefore you can't remove that and the judge should have found that the decree was invalid, and that she could therefore deal with the matter. This sort of administration can't get away with ousting jurisdiction, jurisdiction remains independent and an independent judge in my view could not have come to this decision.

HILL: So essentially you're saying that the judiciary in Fiji is in some sense not really independent?

DOWD: I can't comment generally about other cases than this, but if a decree is passed with whatever legality that may have from an administration which has overthrown the Constitution, whatever validity it may have they cannot remove the independence of the judiciary. And this decision is wrong.

HILL: Well you're saying they can't but of course they have?

DOWD: Well no they have purported to, using that lovely lawyer's word, they've purported to exercise a power they don't have, therefore a judge who should be independent and is supposedly under this administration, should find the decree invalid. It's a bootstrap job, you can't hold yourself up by your bootstraps and then say you can't do it. The administration can't pass such laws and oust the jurisdiction. The jurisdiction remains.

HILL: The interim government in Fiji essentially says that what they're doing is not really essentially any different from what happens in normal countries, and they don't know why everyone's getting upset with them?

DOWD: It's absolute nonsense, normal countries don't do this. In countries right through the world we have the judiciary independent of the government. The government can't pass a law which says the judiciary may not review this. It doesn't happen in almost all of nations in the world, it can't happen in Fiji. So to say that it happens in other countries is just not correct.

HILL: Assuming that Fiji does return to democratic rule eventually and the Constitution is restored to its rightful place, might some of these court decisions that were taken under this kind of situation then perhaps be revisited?

DOWD: Well, they won't need to be because once Fiji becomes democratic again and in fact starts to pass laws under a Constitution, these laws will have no validity, these decisions like this will have no validity at all and will be ignored.

HILL: What would you say to judges in Fiji at the moment who would say look I have to do this under the situation we're in, if I don't do this then we're not going to have any administration of justice at all?

DOWD: Well, once the executive takes over the judicial role there's no administration of justice at all. So whatever the judges may say the rule of law is the rule of law, judges have to be independent, the executive can't control the judiciary, and that's the end of it.

HILL: So what should judges in Fiji do?

DOWD: Well, they need to look very closely at how much their jobs as judges are fully independent and if they're not they have to look at whether they should be judges at all.