(o+) Justice Gates's Moral Dilemma

A moral or ethical dilemma is a situation that often involves an apparent conflict between moral imperatives, in which to obey one would result in transgressing another. Resolving moral dilemmas is seldom simple.

I think Anthony Gates faced such a dilemma before accepting his reappointment as Chief Justice. Having once stated that the 1997 Constitution was Fiji's supreme law and only Parliament had the power to amend laws, his reappointment now rests on a Presidential decree and the Abrogation of the Constitution. The blog Coupfourpointfive and some other commentators whose opinions I respect question his motives.

But what does CJ Gates himself say? Speaking on the afternoon of his reappointment the Fiji Sun reports him as saying “There is no doubt in my mind that the judiciary must continue. Academic commentators may expatiate on the indelicacies of our situation, the constitutional dislocation itself, the present impossibility of constitutional compliance over appointments and many other niceties. What is of far greater significance is that the judges must act as judges. They need no other command. They must do the right thing. Few if any judges throughout the world will ever have to face the dilemmas we shall face; to be intellectually honest and yet to be efficacious."

“The task ahead for those judicial officers who have agreed to serve again will not be easy.They are to be commended for their courage and for their determination to continue to provide judicial services to the people of Fiji. I know that others will come forward to serve as judges, indeed some have already so offered. In time the judiciary will prosper and an adequate number of judges will be available and appointed. Some will come from Fiji and some from overseas.”

Fiji Village further reports him asking what would happen if Fiji has no judges, and why no one* (see footnote) questioned the legality or validity of the court rulings after the 1987 coup. Asking whether the right decision had been made, he said he has been through five coups in Fiji and he truly believes that the judiciary has to continue operating for the people of Fiji. Judges must act as judges and the judiciary has to continue with its work. He said he was confident that Fiji's judiciary would prosper and the right thing to do in this case is to ensure that the judiciary continues functioning.

Fiji Daily Post reported him adding that in the 1987 coup most of the magistrates and judges refused to swear an oath of allegiance in new order. He now believed judges like himself who refused to swear an oath of allegiance after the 1987 coup were mistaken. They would have done better to have continued to serve and play a crucial role in Fiji. “That is why I and others have decided to stay on and why I believe more should in time offer their services both from within the Fiji Bar and from overseas to re-create the Fiji judiciary.”

The interview with CJ Gates was reported by the Fiji Sun, Fiji Village and Fiji Daily Post. Unless I am mistaken, the prestigious Fiji Times made no report of the interview, presumably in protest against media censorship. But, having criticized CJ Gates in the past, they surely should have given him a "right of reply."

Victor Lal, writing in the blog Raw Fiji News, makes an important point: "The people of Fiji will only have trust in the judiciary if Gates is willing to go on record to state that the courts must be allowed to hear legal challenges to the Presidential decrees, actions and appointments. If not, the Fiji judiciary will be nothing but a mere rubber stamp of the illegal regime – with Gates as its master puppeteer and Pathik, Goundar and other judges likely to crawl out of the gutter as his orchestra."

I would not go that far. Given the present Fiji situation, litigation on the legality or otherwise of the President's decrees is better left until after a new democratically elected government is formed. Now, more than ever, calmer conditions are needed to get the opposing sides to talk with each other. But litigation on alleged abuses of human rights arising from the decrees should be allowed -- and it would increase the CJ's mana if he said so, or at least worked behind the scenes to ensure justice is done in these cases.

* In fact, many questioned the court rulings. I think Gates means "no one who supported the 1987 coups."