I never knew that poets existed today that could succintly summarize the wisdoms of the past and issue the calls for fearless acts. With this prose, Justice Gates joins for me the pantheon of Thoreau, Gandhi, King, and Mandela. If only there were some means to move him to the UN or the world court.
full judgementJudges could not carry on," his Lordship said at 742 B "without acknowledging some formalities and acts that had an illegal origin." In Makenete (supra) Ackerman J A quoted extensively from Fieldsend A J A sitting in the Court of Appeal in Madzimbamuto R A D case (196 (2) S A 24 at 429-430.1968 RLR 203 at 385) with full approval at 65-66:
"The Courts become the pivot on which the constitutional arrangements of the country turn for the Bench can and must determine the limits of the authority of both of the executive and the legislature. The consequence follows that the bench of judges is a guardian of the constitution...
Judges appointed to office under a written Constitution, which provides certain fundamental laws and restricts in the manner in which those laws can altered, must not allow rights under that Constitution to be violated. This is a lasting duty for so long as they hold office, whether, the violation be by peaceful nor revolutionary means. If, as in South Africa, the Courts were obliged to stand resolutely in the way of what might be termed a legitimate attempt to over-ride the Constitution, a fortiori must a court stand in the way of a blatantly illegal attempt to tear-up a Constitution. If to do this is to be characterised as counter-revolutionary, surely in acquiescence in illegality must equally be revolutionary. Nothing can encourage instability more then any revolutionary movement to know that, if it succeeds snatching power, it will be entitled ipso facto to the complete support of the pre-existing judiciary in their judicial capacity.
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It may be a vain hope that the judgment of a court will deter a usurper, or have the effect of restoring legality, but for a court to be deterred by fear of failure is merely to acquiesce in illegality. It may be that the Courts mere presence exercises some check on a usurper who prefers to avoid a confrontation with it.
I am in full agreement with these views and in particular with the warning that a court ought not to shirk its constitutional duty because it fears that its orders may not be executed by the usurper."
Clearly the judges at the outset of an extra-constitutional occurrence must uphold the Constitution until evidence and argument are placed before them impugning successfully the operation of that Constitution. That is the approach taken by Shameem J and Madraiwiwi J. in 3 recent cases. Full argument was not addressed to their Lordships on the validity of the 1997 Constitution. However they stated they awaited the decision of the court which had had the advantage of full argument, namely this court, in the present case. Nevertheless, these judges applied the Constitution and in doing so, in my respectful opinion, correctly applied the lawful presumption of continuing legality applying long established law in consonance with their judicial oaths. But in carrying out their proper judicial function without perversity their lordships were roundly criticised in letters to the press by none other than the Attorney-General, a litigant before this court, the high officer of State who conventionally stands as the protector and apologist for the judges.
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Gleaned from the recorded cases and from what had happened in Fiji in the early days of the Military takeover the following observations can be made on the role of the judiciary in such crises: