Thursday, 1 October 2015

The Quality of Justice

The judiciary is one of the main constructs of all societies. Democracy can only function imperfectly in the absence of an informed, fair, competent and transparent legal system.  In this recent keynote address to the Fiji Law Society, the Chief Justice reflects on the role of the judiciary, the Fiji Law Society and lawyers in Fiji, and in doing so he answers, at least to my satisfaction, some of the wild accusations floated in the post coup years by the Fiji Law Society and its sister organization in New Zealand.  The address is abbreviated and I have exercised my publisher privilege by emphasizing some sections.-- Croz

Keynote Address by Chief Justice Anthony Gates
at the Opening of the Fiji Law Society's Convention 
"Fundamentals of Private Practice"
              September 2015, Novotel, Suva
Mr President
Madam Vice-President
Hon. Judges
Members of the Fiji Law Society
Legal Practitioners
Ladies and Gentlemen
First, let me congratulate the Fiji Law Society for re-invigorating its role for the legal profession. I suspect this has been due to the efforts of a valiant few, typical of all such ventures. The theme for the Convention is significant — it is "Fundamentals of Private Practice." Some will say "only, if only!"

For over the years, the Society has often preferred to immerse itself in other matters, chiefly politics, and paid little attention to the real concerns of the profession such as how it should despatch its business, how to avoid ethical conundrums, how to improve the services to be delivered, how to sign up clients and how to bill transparently and fairly, and how to enhance the reputation of its members. This criticism is not confined to the times of constitutional stress during and after coups. Over the years the profession has commendably provided many members who have served as parliamentarians: fewer these days unfortunately. It is right that lawyers should so serve. We need lawyers in parliament so that legislation can be effectively scrutinised, and the workability of intended measures and sanctions can be considered, and the overall reasonableness and fairness of restrictions on our freedoms can be carefully weighed. But that is not to say that a professional society set up for the profession should itself be concerned with politics. That is the responsibility of individual members. The Society's focus should be on matters dealing with the day to day practice of law, and to ensure the professionalism of its members. So I welcome the overall theme at this Convention of "Fundamentals of Private Practice."
Other professional bodies or associations governing engineers, doctors, surveyors or accountants have not embroiled themselves in overt politics. It may be Law Societies are alone in this regard because of the professional and traditional roles of its members as advocates in court.
When I was in private practice in Fiji in the early 1990s, I often felt there was an insufficiency of professional support by the Society for its practitioners. We were not to be kept quiet by the provision of mere cocktail parties in substitute for that support.
So for the Society now to involve itself in the provision of professional support to its members, and to the profession generally, will be a much welcomed step. Organising this conference with speakers and commentators can have been no easy matter for busy full-time practitioners with virtually no secretariat. Judges have readily agreed to assist when asked to provide papers and I have encouraged them to help where necessary. But individual practitioners must put up their hands and volunteer to prepare relevant CLE papers. Each senior practitioner has a responsibility to the profession to provide his or her services in this way. Legal practitioners ought to attend and obtain their necessary points in order to retain their practicing certificates. Naturally attendees should participate genuinely and try to improve themselves. It is not just about points. I have earlier given the names of judicial officers with topics so as to help with this project. The Judiciary will readily assist the profession and the Society in its trainer's role.
In addition to training, the Society, through selected members, could properly provide advice and guidance on new legislation. This could be tendered to the Fiji Law Reform Commission, or to the Solicitor-General's Drafting Unit. The last few years have seen a period of much reform. That output of legislation has still only scratched the surface of what is necessary. Some of you might have an experienced view for instance on how debt collection and enforcement might be modernised and simplified. After the reforms of the l9" century, partially provoked by the novels of Dickens whose own father had been imprisoned for debt, it seems that nothing much has happened to disturb the law's antiquated and woefully slow procedures. I see nothing improper in a legal practitioner assisting in the drafting or improvement of bills for parliament. It is always important to remember the professional nature of the task that is being performed so that one's professional independence is never to be compromised.

If I may revert to the topic of training again. I have already submitted to the Attorney that there should be established an Institute for Judicial and Legal Studies. Such an Institute could deal with all Continuing Legal Education training of the profession. It could provide the necessary organising Secretariat. Indeed it could assist the Society to run its own Conventions. It could handle all training for judicial officers and in specialised areas for the profession such as mediation, intellectual property law, and cover new legislation such as tax and company law.
In trying to provide a better judiciary, we spend a good deal of resources on the training of judicial officers. Modestly approached, I believe it has been an attitudinal changing process. It takes away some court sitting time but such loss brings longer term gain to the system.
The Judicial Department trains every single member of the office. That means night-watchmen, security staff, gardeners, cleaners, drivers, as well as IT staff, clerks, secretaries, and Heads of Sections. There is no reason why Law Executives from law offices should not similarly be trained by the Institute, and that could extend to law office support staff. The Institute would require support and input from several quarters including the Bar but could conserve resources by avoiding duplication, a necessary consideration in a small island jurisdiction such as ours.
I have referred previously to the Fiji Mediation Centre. It is likely to be opened and launched on 14th October 2015. Alas our first premises had been re allocated to another Department. But the Centre will open even if premises are still not finalised. A refresher course for Fiji Mediators, who passed the External Accreditation test recently, will be held just prior to the opening. This  Centre will grow. It is not intended to be an exclusive service, denying any other mediation service which the parties and their lawyers might choose or prefer. I look forward to the diversion of many civil claims, where legal principle is not required to be clarified by the courts, to the Fiji Mediation Centre for an inexpensive and fast resolution of disputes. All of the judicial officers have been trained in mediation and believe strongly in its efficacy. Legal practitioners should therefore encounter no obstacle from the bench in allowing time for the genuine use of this service. However it should not be used to obtain an adjournment or as an excuse to avoid a trial for which counsel comes to court ill-prepared.
Over the last year, there have been a few meetings between your President, Vice-President, members of Council, and myself. Various issues have been discussed. I am happy that these meetings should continue from time to time, and if need be non-Society legal practitioners are also welcome. The unfortunate dislocations of prior good relationships Bench-Bar are now behind us. The Law Society's Conventions may grow from strength to strength. I hope so. A Bar-Bench function, a reception and a dinner, have also been mooted. I hope these will eventuate to draw us all to a greater understanding of our respective and separate roles in the justice system.
Unfortunately it is a truism widely held that an independent judge is a judge who understands my case and finds for me. Judges will make mistakes, and human beings do not always agree. In recent years the courts have insisted on cogent reasoning. Judgments are put on the judiciary website and are published on Paclii for all to see, read, and comprehend, if not always to agree with. There are no more closed door chamber hearings, unless for stated cause. Video recording is permeating, albeit slowly, throughout the court system. This brings an accountability and transparency to us all, judges and lawyers alike. I do not suppose surgeons would welcome video recording of their operations just yet. It may come in time. In Brazil there is video-recording not only of the appeal courts in court, but also of the deliberations of the appellate judges when deciding the matter out of court. Such recordings are played live on a separate TV Channel. First in Fiji, let us achieve the audio and video recording service and a better transcription service before we go on to consider if we need to go any further.
The courts have major building and renovation projects to cope with. There is the completion of renovations at Government Buildings. We have lost a good deal of space to Parliament and its Secretariat. There is the Veiuto Complex to prepare for the Supreme Court and Court of Appeal move. Eventually that complex will house the Family Court and Magistrates Courts as well as all of the Tribunals and the Administration sections of the Judiciary. The High Court will remain at Government Buildings.
It is hoped the Lautoka High Court tender procedures will be completed soon to allow building works to commence before the end of the year. Facilities presently are extremely stretched at Lautoka. We may have to take on temporary courtroom premises pending the availability of the new 6 storey building.
Besides these three main projects there are plans to extend, renovate, or build Magistrates Court houses in various parts of Fiji. Nadi which has had a 3' courtroom added, is likely to have further works done to provide a 4th courtroom. Both of these 2 new courtrooms will be multi-purpose courtrooms so that High Court trials could be conducted there for both Civil or Criminal Division work.
That is about enough for now. You have an interesting 11/2 days ahead of you, for which the presenters and commentators are to be thanked. I am delighted to open the Fiji Law Society Convention for 2015. I wish all delegates and members a highly satisfactory meet, and I wish prosperity, growth and good leadership for the future, to the Society and its members.

1 comment:

  1. No more free trips for junta bludgersFriday, 9 October 2015 at 23:32:00 GMT+13

    Good to see you censoring everyone who doesn't support the junta CJ Croz. Where have all your junta friends gone? It appears you and your missus can say goodbye to another bludgers free trip to juntaland at the expense of the poor Fijian taxpayers?


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