Freedom from Fear: Achieving the Ideal. Comment on the address by the Hon Chief Justice Spigelman AC, The Forgotten Freedom: Freedom from Fear

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1 1 Australian Academy of Law 18 November 2009 Banco Court, Supreme Court of NSW Freedom from Fear: Achieving the Ideal Comment on the address by the Hon Chief Justice Spigelman AC, The Forgotten Freedom: Freedom from Fear Dr Melissa Perry QC 1 Introduction With the atrocities of the second world war still so fresh in the minds of men and women, the drafters of the Universal Declaration of Human Rights placed freedom of speech and belief and freedom from fear and want as the highest aspiration of the common people. This was the ideal that observation of human rights then articulated in the body of the Declaration was intended to achieve the ideal that shapes and informs their content. But one of the questions that his Honour s paper posed in my mind, is how well have we adhered to that ideal? Is there a risk, as his Honour alludes, that freedom from fear may become corrupted and used as a means of justifying derogation from the very human rights that were intended to achieve it? It is this theme that I propose to develop, taking the breakdown in the rule of law in Fiji as my example. That example also illustrates all too well the point made in the preambles to the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights that the ideal of free human beings enjoying freedom from fear and want can be achieved only by the creation of conditions whereby everyone may enjoy the rights that those Covenants identify. And in the creation of those conditions, the institutional structure of government is, of course, pivotal. As Montesquieu wrote in the passage quoted by his Honour today: The political liberty of the subject, is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another. 2 1 LL.B (Hons) (Adel) LL.M Ph.D (Cantab) FAAL; Sixth Floor Selborne Wentworth Chambers, L6/180 Phillip Street, Sydney NSW. The author also expresses her sincere thanks to Houda Younan for her contribution through lively discussion to the ideas developed in this paper. 2 Similarly, the third of the natural rights of Man in the French Constitution of 1793 (to which the Chief Justice has also referred) states: Security consists in the protection afforded by society to each of its members for the preservation of his person, his rights and his property.

2 2 The Fiji experience Creating perhaps a somewhat curious tension, Fiji has a history both of coups and of litigating their outcome. In some cases, private citizens have instituted or participated in the proceedings to defend the rule of law and their courage in doing so should not be underestimated. In other cases, they have been instituted by political opponents and, again interestingly, defended vigorously by proponents of the coup endeavouring to clothe illegal action with legitimacy through the courts. The most recent of these cases, as you would be aware, was the challenge instituted by Mr Qarase. I can be brief by way of background. In December 2006, Commodore Bainimarama, who was Commander of the Fiji Military Forces, had purportedly assumed the office of President and dismissed Mr Qarase as Prime Minister. He had then appointed an interim prime minister and dissolved the Parliament on the advice of the interim prime minister. Those actions were subsequently ratified by a new President upon the Commander stepping down, and the Commander was then appointed Prime Minister of an Interim Government for the duration of which legislation was to be made by Promulgation. Parliament did not resume. Mr Qarase challenged the validity of his dismissal as Prime Minister and the dissolution of the Parliament. As Anne Twomey has pointed out, there is something of an irony in this course of events as Qarase, who had first come to the position of Prime Minister by replacing the elected Prime Minister in a coup d état, now found himself in the position of an elected Prime Minister deposed by a coup d état. 3 Those proceedings were defended both at first instance and on appeal by Commodore Bainimarama. As is well known, the High Court of Fiji upheld the Prime Minister s dismissal and dissolution of the Parliament on the ground that they were carried out lawfully in the exercise of so-called prerogative powers of the Head of State sourced outside the Constitution to act for the public good in an emergency. 4 Those powers were said to be reviewable only on the grounds of bad faith or arbitrariness. 3 Anne Twomey, The Fijian coup cases: The Constitution, Reserve Powers and the Doctrine of Necessity, (2009) 83 ALJR 319 at Qarase v Bainimarama [2008] FJHC 241.

3 3 That decision was overturned in April this year by the Court of Appeal constituted by Justices Powell, Lloyd and Douglas. 5 Whereas the Constitution of the people of Fiji had barely rated a mention in the High Court s decision, the Court of Appeal upheld the Constitution as the supreme law of Fiji, in accordance with its terms, and the rule of law. Relief, however, posed significant difficulties. The Court found that it could not ignore the reality of what had occurred in the past two years since the coup, including the pensioning off of a large number of members of Parliament, and considered that there was a very real question as to whether Mr Qarase remained Prime Minister, notwithstanding the illegality of his dismissal. It considered the most appropriate course was for elections to beheld. While the Court did not, of course, seek to exercise the President s discretion to issue writs for elections, it pointed out that the Constitution by implication empowered the President to do so in circumstances where a Prime Minister had been forcibly removed and no other Prime Minister validly appointed in his place. It then framed its relief so as to enable the President to adopt this approach. Notwithstanding the carefully crafted judgment of the Court, the following day the President announced that: The end result of [the Court of Appeal decision] is that Fiji has not, in practical legal terms, had a government in place since 3pm yesterday afternoon. My fellow citizens you cannot have a country without a Government. The machinery of the State like any other country needs to be in place. He purported then to abrogate the 1997 Constitution ostensibly [t]o facilitate the holding of true democratic and parliamentary elections, appointed himself as Head of the State of Fiji under what was described as a new legal order, and revoked the appointment of all judicial officers with the intention of making new appointments. The assurance that the basic human rights of all citizens shall be protected in the new legal order was immediately followed by the assurance that the President ha[s] the full support of all our security forces. The justification for abrogating the Constitution was the anarchy inaccurately said to flow from the Court of Appeal s decision. As such, the explanation given may be said to illustrate corruption of the ideal of freedom from fear, in this case, fear of anarchy. 5 Qarase v Bainimarama (unreported, Court of Appeal, Fiji, 9 April 2009, No ABU0077 of 2008S): (viewed 17 November 2009).

4 4 This might be analysed as effectively elevating the ideal of freedom from fear to a right in and of itself, so as to create an artificial conflict with other rights. That conflict is then resolved by giving supremacy to the purported right. The result is that an ideal intended to promote human rights has been applied so as to suppress them rights that had been enshrined in a bill of rights binding on all institutions of government contained within the now abrogated Constitution. Having then taken measures likely to destroy any public confidence in the independence and impartiality of the courts, the final irony was in the certificate issued by the Acting Chief Registrar of the Court of Appeal on 2 nd August That certificate purported to wholly terminate the appeal proceedings, the evident intention being to overrule the Court of Appeal decision and restore the authority of the decision at first instance upholding the validity of the interim military government. The events in Fiji following the Court of Appeal s decision have been the subject of condemnation by the United Nations, 6 the Pacific Islands Forum, 7 and many nations, including Australia 8 and the United States 9. The Australian Bar Association 10 and the 6 E.g. on 10 April 2009, the Spokesperson for UN Secretary-General Ban Ki-moon stated that [t]he Secretary-General has learned with deep dismay the abrogation of the Constitution of Fiji, dismissal of the judiciary, declaration of public emergency and a clear attempt to prolong rule by an unelected executive by setting a new timeframe of five years (by 2014) for parliamentary elections. The latest measures are a clear rejection of the legal process and are contrary to the stated common objective of returning the country to an elected Government as soon as possible. The Secretary-General strongly deplores these steps and calls for urgent action towards their reversal and the restoration of a legitimate Government and constitutional order. : (viewed 18 November 2009). 7 Fortieth Pacitifc Islands Forum, Cairns, Australia, 5-6 August 2009, Forum Communiqué at [44-51]: (viewed 18 November 2009) 8 E.g. Australia condemns unequivocally the abrogation of Fiji s constitution and the postponement of election for at least five years, Australian Embassy and permanent Mission to the United Nations, News Stories, 16 April 2009: (viewed 18 November 2009). 9 On 10 April 2009, Richard Aker from the US State Department said that [t]he United States is deeply disappointed by the collapse of Fiji s political dialogue process and the abrogation of Fiji s constitution, which we see as movement away from the goal of returning Fiji to democratic governance and its formerly leading role in the Pacific. We are concerned by the implications this abrogation holds for the future of judicial independence, media freedom, and democracy itself in Fiji. : R Aker (Acting Deputy Spokesman), US Embassy in Suva, 10 April 2009, (viewed 18 November 2009). 10 Australian Bar Association expresses grave concern for Fiji, Media release issued on 14 April 2009: (viewed 18 November 2009); The ABA expresses grave concern for the rule of law in Fiji, media release issued on 1 September 2009: (viewed 18 November 2009).

5 5 International Bar Association 11 have also expressed the deep concern of all who respect and uphold the rule of law and fundamental democratic principles. Conclusion While involving an extreme disregard for the rule of law, the Fiji experience nonetheless has a universal relevance. First, it reminds us of the significance of principles that we hold dear under our Constitution that create the conditions whereby fundamental human rights may be protected and enforced. The constitutional protections afforded to the appointment, term of office and remuneration of judges, together with the implied separation of judicial power, provide fundamental protections of the absolute independence of the judiciary at the federal level. As the High Court stated in the Boilermakers case: The position and constitution of the judicature could not be considered accidental to the institution of federalism: for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised and upon that the whole system was constructed. 12 It is now also clear that the Kable doctrine 13 requires compliance by State and Territory courts with minimum standards of independence and impartiality in order to maintain public confidence in those courts, as courts vested with federal judicial power. 14 Secondly, it is to be hoped that in this country we will never face so grave a threat to the rule of law as in Fiji. Nonetheless, even within Australia, there is a need to guard against more subtle corruption of the ideal of freedom from fear so as to rely upon it as an end in itself and as a justification for eroding fundamental human rights. 11 Fiji President sacks judges, revokes Constitution, press release issued on 14 April 2009, (viewed 18 November 2009). 12 R v Kirby; ex parte Boilermakers Society of Australia (1956) 94 CLR 254 at 276 Dixon CJ, McTiernan, Fullagar and Kitto JJ. 13 Kable v DPP (NSW) (1996) 189 CLR North Aust Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146.