What the Judiciary Can and Cannot Do

By G. Larson

There seems to be some misunderstanding on what the judiciary can and cannot do. I'm not sure if people are being deliberately obtuse or have other motives.

The courts cannot strike down laws. So, the contention that a law cannot be reviewed by the courts is correct. It was ever thus. This is not an American system where laws can be reviewed or struck down for want of constitutionality. What appears sometimes, is that a particular person's decision under a law cannot be reviewed and is final.

Your commentator Gutter Press says the courts do not accept cases which are not subject to review. What does that mean? Of course they don't. If the particular law states that a decision is not amenable to judicial review, the courts would be overstepping their authority and interfering in the executive and legislative branches of government if they were to do so.

 Ouster clauses
These provisions are called ouster clauses, and, though not common, do also occur from time to time in other jurisdictions. For example, in the UK the Interception of Communications Act 1985 creates a Tribunal with a function to investigate and remedy complaints that postal or telegraphic communications have been unlawfully intercepted. This Act provides that the decisions of the Tribunal shall not be subject to appeal or liable to be questioned in any court. There are other examples such as in Australia under the Migration Act which restricts the ability of the courts to review decisions made by the Refugee Tribunal.

I wonder if anyone ever bothers to actually read the wording of the law before they make their claims! Gutter Press simply shows off his/her ignorance.

The courts only apply the law
You mention that decrees have been passed that cannot be questioned in law and you have a problem with that. Why? As mentioned, the decrees like other laws previously passed can never be questioned by the courts. The legislature, in this case Cabinet, passes law. The courts apply the law. The courts do not make law and the legislature and executive do not interfere with the court's decision in applying that law. Nothing to see here. No issue.

The people that claim the judiciary is not independent are the ones that need to produce the evidence.  

The State does not always win its cases.
 For example:
(1) Balu Khan charged with conspiracy to murder the PM and the AG and the Minister for Finance. This was stayed due to misfeasance of the state. Ballu was allowed to leave Fiji. No action was taken against him.
(2) Imrana Jalal and Tuisolia, - same case, stays were granted.
(3) Chaudhry - information quashed in one set of charges and another set were stayed for want of jurisdiction.
(4) Risto Harmat - the person who assisted fugitive Tevita Mara out of Fiji. The State lost the case. Harmat allowed to go.

There was absolutely no interference in any of these cases by the executive branch of government. The State lost, the courts reprimanded the State for the way in which the cases were investigated and brought before them and that is why the stays were granted. On occasion, costs are awarded against the State. This was not what the executive wanted but they accepted the decision of the courts. If this was a dictatorship and the courts were not independent, the State would have won each of those cases!

Any examples or evidence the other way?

By the way, these types of cases are a very small percentage of the number of cases that the courts see every day. Most of the cases, 98% of the cases the courts deal with concern robbery, rape, murder, defilement, incest, and other crimes. These cases are als dealt with in the fairest manner possible in the interests of justice for all.

Comments

Anonymous said…
So when are the compromised junta courts going to deal with the outstanding treason and human rights abuses by Bainimarama and his cohorts? The corrupted judicary in Fiji is a disgrace.
Anonymous said…
"The courts cannot strike down laws. So, the contention that a law cannot be reviewed by the courts is correct. It was ever thus. This is not an American system where laws can be reviewed or struck down for want of constitutionality."

The writer obviously knows nothing about law and is likely a Qorvis operative spreading disinformation. Courts all over the world strike down laws every day because they are vague, arbitrary, or unconstitution. . . . Oh, right.
Crosbie Walsh said…
@ Anonymous ... You are clearly an expert in these matters and must be able to substantiate your claim that "courts all over the world strike down laws every day because they are vague, arbitrary and unconstitutional." This is a big claim. Assuming that you know the meaning of "strike down", I'm sure readers would like you to cite one or two examples from any country with a . similar legal system, such as Australia or New Zealand. I know of none.
Crosbie Walsh said…
Anonymous... The disgrace is yours. Present a precise argument, with evidence, or refrain from your uninformed accusations against the judiciary. But first, make an effort to understand what a judiciary can and cannot do.
Anonymous said…
Croz
The courts in NZ and Aus cannot review or strike down laws. They can only apply them to the evidence. The difference in Fiji is not the judiciary but the way the laws are passed ie without Parliament. That is surely not a reflection on the judiciary.
Crosbie Walsh said…
Thank you. If only the other anonymous would check out the facts before rushing in to comment.
Gutter Press said…
Crosbie, G.Lawson blithely states that “…the courts cannot strike down laws…” and uses, as you have done in your previous post, this false precept for further argument that the judicial system in Fiji is untainted.

G. Lawson is evidently ignorant of the power of any properly constituted court which is peopled by legal professionals of irreproachable integrity. Such a court can and, in most civilised countries, does strike down laws made by the legislature which it deems to be illegal. For your lay-readers the internet is replete with such examples.

In fact, maintaining the independence of the judiciary from the legislature is precisely why there are separate arms of government. It is this independence which is the cornerstone of democracy, since it provides the checks and balances that are required to ensure that unfettered power does not lie in the hands of those actually making the laws. This is taught in high school or at least in reasonable high schools.

As an amusing aside, G.Lawson shows some legal knowledge but goes on to write, “Risto Harmat - the person who assisted fugitive Tevita Mara out of Fiji. The State lost the case.”
The conflation of both sentences is unusual from someone sets themselves up as having legal experience.
In view of the fact that the state lost the case, the correct terminology would be, “Risto Harmat - the person who ALLEGEDLY assisted fugitive Tevita Mara…”

Perhaps G.Lawson not care about the law of slander either?

Crosbie Walsh said…
@ Gutter Press... Please be more precise. "The internet is replete with such examples" of courts striking down laws is not a very helpful reference. Please also indicate whether you have any legal credentials or have sought legal advice before making these claims. My legal advice is that you are wrong.
Anonymous said…
Ignorance of the law is no excuse for spreading such blatant disinformation. Stick to development. At least you're supposed to know something about that.

http://en.wikipedia.org/wiki/Judicial_review
Shazzer Grubby said…
Croz,
When will you inform your readers of the legal credential of G Larson.

We are all waiting.

The longer you keep it a secret the less faith we will have in his expertise.
Anonymous said…
Is it Larson or Lawson? Such poor propaganda. Amateur stuff, really.
corrupted judiciary said…
Perhaps G Larson/G Lawson is a jungle bunny?
Gutter Press said…
Crosbie, I don’t wish to appear dismissive of your request to be more precise. However there are so many cases from so many jurisdictions that both you and your readers will find it a simple matter to do individual research sufficient to disprove G.Lawson’s (and your own) claim that ‘courts cannot strike down laws’.

There are, of course, alternative points of view so your statement that your legal advice that I am wrong is not surprising.

What would surprise me however is if anyone, bar those with vested interests, were to take issue with the fundamental precept outlined in my previous comment that maintaining the independence of the judiciary from the legislature is precisely why there are separate arms of government.

In the context of this discussion the fact that the judiciary has decided - some would say cravenly - not to hear cases against decrees, strikes at the very heart of judicial independence.
rusi said…
'There was absolutely no interference in any of these cases by the executive branch of government' what an amazing thing to say when we have insiders who actually worked with regime appointees who claim otherwise. Frankly NO, others do not have to put up evidence to claim anything. The military regime were the ones who appointed this bunch, the military were the ones who sacked the previous judciary, the military regime were the ones who trashed the constituion so THEY are the ones who need to show how squeaky clean this judciary actually is and explain the list of judges fleeing for 'family reasons' or booted out of Fiji. If there were claims of this nature about Aus or NZ high court judges and registrars conduct there would be a royal commission. BTW hasn't the CJ already been responsbile for one case being thrown out due to his big mouth at a party?? Any other countries claim that ??
wati s said…
I would be quite comfortable with testing the legality and basis of the appointments to the fijian bench and can't wait for the those currently and formerly in roles being dragged before a new court under a new system and claiming how different to others that have been found guilty of taking illegal oaths, they really are.
Gutter Press said…
Crosbie, the CCF's Constitution Consultation document states
"...Access to independent courts to challenge laws and decisions of the government and to protect rights would be fully restored..."

I think this gives further credence to my premise that the independence of the judiciary is considered sacrosanct and that it is, or at least used to be (when it was independent), capable of challenging the laws made by government.

In light of the CCF's remarks I would be interested to hear if you and your legal adviser maintain your stance that the court is independent and that if the government decrees so, laws - no matter how malignant they may be, cannot be challenged by the judiciary.
Anonymous said…
@gutter press
What a touching trust in CCF. Sadly not shared by many. Yabaki is as short on facts and figures as Gutter (Sewer?) Press.
Gutter Press said…
anonymous, my reference to ‘CCF’ stands for the Constitution Committee of Fiji, chaired by Professor Yash Ghai - not Rev Yabaki’s Citizens’ Constitutional Forum. This is an understandable error on your part.

I trust you don’t have the same contempt for the august members of the Constitution Committee.

Now that you’ve been corrected, you might care to go to
http://www.mediafire.com/?rp7undv76hfawsw
to download the CCF’s Consultation Document and read it for yourself.

You will find the phrase “… access to independent courts to challenge laws and decisions of the government … would be fully restored…” contained in the 2nd last paragraph on page 3.
Charlie Charters said…
Mr Larson, Croz, I think the issue here is that the executive appears to have direct control of the prosecutorial process. You mention instances where the 'state does not always win its cases'. True. But what you do not appear to reflect on is the inherent flimsyness of many of the cases and, what some would say is the mendaciously ad hominem nature of some of the prosecutions. The investigations and prosecutions are brought at the cost of the taxpayer but require individuals to pay for the privilege of defence. In all instances the accused are required to turn their lives upside, bail terms, travel restrictions, not to mention the dubious privilege of having their names dragged through the mud. I have a personal interest here, one of my mother-in-law's accused passed away before he had the ability to test the state's case in court and to seek to prove his innocence. How do you measure that particular cost? And this from a case resulting from arrests in late 2011 that is now not due in court for mention until early 2013. This is not me pleading for special favours: I just happen to have very personal experience of what it is like to be at the wrong end of the process. But I have been written for you before Croz, about the quantity versus quality of some of FICAC's prosecutions, especially of those who I knew and worked with when I was at the FRU (inc Jalal and Tuisolia). A lot of huffing and puffing from FICAC about vast numbers of complaints and phone-ins to the hotline, and but a lot less noise (and scrutiny) of the number of nolle prosequis arising.
Anonymous said…
@ Charlie Charters
Woah! We have jumped from a biased judiciary (which it now seems is not biased) to a compromised prosecution! And that too on the basis of delay and two acquittals! Delay is not worse than it was in pre 2006 years I think, in fact its better! In the bad old days you could wait for years for a date in Lautoka and Labasa and only because these towns were seen as Indian dominated areas and not worthy of more than one judge (Lautoka) and none at all (Labasa). So litigants waited for years for trial. I know, I was one of them. As for the acquittals, are you saying everyone got convicted before 2006? I doubt it. In any country the conviction/acquittal rates are 70:30 %. That does not mean the DPP's Office or FICAC are compromised even if they didn't get the decision right. Lack of competence does not mean dishonesty! If mother-in-law was charged in 2010 and is tried in 2013 that is not bad compared with other countries in the world. And of course she can't be given special treatment, so she must join the queue like everyone else?
Anonymous said…
Is there much difference between the two CCF's?

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