Chief Justice of Fiji

The Chief Justice is Fiji's highest judicial officer. The office and its responsibilities are set out in Chapter 5 of the 2013 Constitution of Fiji.[1] The Chief Justice is appointed by the President on the advice of the Prime Minister, who is required by the Constitution to consult the Attorney-General (Section 106-1). Under the previous 1997 Constitution, the Prime Minister was required to consult with the Leader of the Opposition.[2] The appointment is permanent, until the Chief Justice reaches the age of 75 years (Section 110-1).

Like other judges, the Chief Justice need not be a Fijian citizen. When Sir Timoci Tuivaga retired in 2002, there were calls from the Citizens Constitutional Forum (a pro-democracy, human rights organization) for a foreigner to be appointed, to restore the independence of the judiciary that had been seen to be politically compromised by the 2000 coup. The government, however, appointed Fijian Daniel Fatiaki. In 2007, the military-backed interim government appointed Australian citizen Anthony Gates as Acting Chief Justice; he became permanent Chief Justice on 5 December 2008.

Powers of Chief Justice

According to Chapter 5 of the 2013 Constitution, the Chief Justice sits on the High Court (Section 100) and presides over the Supreme Court (Section 98), but is barred from membership of the Court of Appeal. This stipulation is designed to give the Appeal Court a measure of independence from the other two courts. The Chief Justice also chairs the Judicial Service Commission (Section 104(a)).

According to the 2013 Constitution of Fiji, the Chief Justice is the first in the order of succession to discharge the duties of the President as Acting President should the President of Fiji be unable to discharge her or his office or if the office becomes vacant for any reason. The 2013 Constitution also stipulates that in the absence of the Chief Justice, the next senior most substantive judge performs the duties of the President as the Acting President.

History of the office

Before 1871, when Seru Epenisa Cakobau established the first unified Kingdom of Viti under his authority, what is now Fiji was a patchwork of warring fiefdoms. Forming a government dominated by foreigners, Cakobau appointed Sir Charles St Julian, an Australian newspaper editor, as the first Chief Justice in 1872. St Julian died in office a few weeks after Cakobau ceded Fiji to the United Kingdom on 10 October 1874, under the provisions of the Pacific Islanders Protection Acts of 1872 and 1875,[3][4] (amended in 1875),[5] (long title: An Act for the Prevention and Punishment of Criminal Outrages upon Natives of the Islands in the Pacific Ocean) which sought to bring the rule of law to British subjects who were using unconventional methods to supply labour for the European-run cotton plantations in Fiji. St. Julian was followed as Chief Justice in 1875 by Sir William Hackett.

From 1877 through 1961, the Chief Justice of Fiji was ex officio Chief Justice of the High Commissioner's Court, more commonly known as the Chief Judicial Commissioner for the Western Pacific, the chief judicial officer throughout the British Western Pacific Territories, a supra-colonial entity established by the Western Pacific Orders-in-Council 1877 (amended in 1879 and 1880), and by the Pacific Order-in-Council 1893.[note 1] Appeals lay to the Privy Council in London. From 1942 to 1945 the High Commission was suspended by military administration during the War in the Pacific. Headed by a High Commissioner for the Western Pacific, who was also ex officio the Governor of Fiji, until the end of 1952, it included numerous islands, mostly small, throughout Oceania. Composition varied over time, but Fiji (1877-1952) and the Solomon Islands (1893-1976) were its most durable members.

From the beginning of 1953, Fiji and Tonga were separated from the High Commission as a prelude to full independence, and the High Commission offices were transferred to Honiara on Guadalcanal in the Solomon Islands. The office of High Commissioner was separated from that of the Governor of Fiji and was now held by the Governor of the Solomon Islands). The High Commissioner's Court, however, continued to sit in Suva, and the Chief Justice of Fiji remained the Chief Judicial Commissioner of the Western Pacific until 1962.

From 1962 onwards, functions of the High Commissioner's Court began to be transferred to the increasingly independent island states under the provisions of Western Pacific (Courts) Order in Council, 1961.[6] The Judicial Commissioner for the Western Pacific became the Chief Justice of the High Court of the Western Pacific, and removed from Fiji to join the rest of the British High Commission in the Solomon Islands. The position was separated from that of the Chief Justice of Fiji.[7]

Fiji gained independence on 10 October 1970. Although no longer connected with the British High Commission, the position of Chief Justice of Fiji continued to be filled by judges from Britain, Australia and New Zealand until the appointment of Sir Timoci Tuivaga in 1980.

The constitutional arrangements relating to the Chief Justice were temporarily overturned in 2000, following a counter-coup by Commodore Frank Bainimarama to neutralize a civilian coup d'état instigated by George Speight. The then-Chief Justice, Sir Timoci Tuivaga recognized the Interim Military Government that took office and abrogated the Constitution on 29 May, and drafted the controversial Administration of Justice Decree that was immediately promulgated by the military administration. This decree abolished the Supreme Court, made the Chief Justice head of the Appeal Court, and raised the retirement age of the Chief Justice from 70 years to 75. These changes were reversed following a decision of the High Court to reinstate the Constitution on 15 November 2000, a decision upheld by the Appeal Court on 1 March 2001.

Current Chief Justice

Kamal Kumar is the acting Chief Justice. Anthony Gates has retired in March 2019, who succeeded Daniel Fatiaki following the military coup that deposed the Qarase government on 5 December 2006, when Commodore Josaia Voreqe (Frank) Bainimarama, the Commander of the Republic of Fiji Military Forces and Acting President of Fiji, sent Fatiaki on leave. The military regime named him as Acting Chief Justice on 3 January 2007, and installed him as the substantive Chief Justice on 5 December 2008.

List of Chief Justices of Fiji

#	Incumbent	Portrait	Tenure		Head of State	Notes
			Took office	Left office
Chief Justice of Fiji (1872-1874)
	Charles Rossiter Forwood Acting		1872	1872	Seru Epenisa Cakobau	Filled in as Chief Justice in an interim capacity, pending the appointment of Sir Charles St Julian as the first substantive Chief Justice.
1.	Sir Charles St Julian[8]		1872	27 August 1874	Seru Epenisa Cakobau Victoria	Appointed during the short-lived Kingdom of Viti. Retired shortly before Fiji's annexation by the United Kingdom on 10 October 1874, but died a few weeks later — before a pension could be arranged.
2.	Sir William Hackett [9][10]		1875	1876	Victoria
Chief Justice of Fiji and Chief Judicial Commissioner for the Western Pacific (1877-1962)
3.	Sir John Gorrie[11][12]		1877	1882	Victoria
	Fielding Clarke Acting		1882	1882	Victoria
4.	Sir Henry Wrenfordsley[13][14][15]		1882	1885	Victoria
	Fielding Clarke Acting for Wrenfordsley		1884	1885	Victoria
5.	Fielding Clarke		1885	1889	Victoria
6.	Sir Henry Berkeley[16][17][18][19]		1889	1902	Victoria Edward VII
7.	Sir Charles Major[20][21][22][23][24][25]		1902	1914	Edward VII George V
	Albert Ehrhardt[26] Acting for Major		1910	21 February 1911	Edward VII George V	Ehrhardt, the then Attorney-General of Fiji, acted as Chief Justice while Major, the incumbent Chief Justice, was acting as Governor of Fiji.
8.	Sir Charles Davson[27][28][29][30][31]		1914	1922	George V
	Sir Kenneth Muir MacKenzie[32] Acting		1922	1923	George V
9.	Sir Alfred Young, KC		1923	1929	George V
10.	Sir Maxwell Anderson, CBE, KC, RN (retd.)		1929	1936	George V Edward VIII
11.	Owen Corrie, MC[33]		1936	1945	Edward VIII George VI
12.	Sir Claud Seton, MC[34][35][36]		1945	22 November 1949	George V
13.	Sir James Thomson		1949	1953	George VI Elizabeth II
14.	Sir Ragnar Hyne[37][38][39][40][41]		1953	1958	Elizabeth II
15.	Sir Albert Lowe[42]		1958	1962	Elizabeth II
Chief Justice of Fiji (1962–present)
16.	Sir John MacDuff MC[43][44][45]		1962	11 July 1963	Elizabeth II	Died in office.
	Sir Clifford Hammett[46] Acting		1963	1963	Elizabeth II
17.	Richard Hugh Mills-Owens[47][48]		1963	1967	Elizabeth II
18.	Sir Clifford Hammett[49][50][51][52]		1967	1972	Elizabeth II	Fiji became independent of the United Kingdom on 10 October 1970. All existing judicial and political office holders either remained in office, or were grandfathered into new roles. The role of the Chief Justice was unchanged.
19.	Sir John Nimmo, CBE[53][54]		1972	1974	Elizabeth II
20.	Sir Clifford Grant[55][56][57][58][59][60][61][62]		1974	1980	Elizabeth II
21.	Sir Timoci Tuivaga[63]		1980	31 July 2002	Elizabeth II Sitiveni Rabuka Ratu Sir Penaia Ganilau Ratu Sir Kamisese Mara Ratu Josefa Iloilo	Following two military coups in 1987, Fiji became a republic. A President replaced the Monarch as Head of State. Chief Justice Tuivaga remained in office throughout.
22.	Daniel Fatiaki		1 August 2002	3 January 2007 (de facto) 5 December 2008 (de jure)	Ratu Josefa Iloilo	Following the military coup on 5 December 2006, Fatiaki was sent on leave on 3 January 2007. He attempted to return to his office later that month, but was formally suspended by the Republic of Fiji Military Forces on 19 January. He formally resigned on 5 December 2008.
23.	Anthony Gates		3 January 2007 (de facto) 18 December 2008 (de jure)	Incumbent	Ratu Josefa Iloilo Ratu Epeli Nailatikau George Konrote	Appointed Acting Chief Justice by the Republic of Fiji Military Forces on 3 January 2007, he succeeded to the office substantively on 5 December 2008, following Fatiaki's resignation.
24.	Justice Kamal Kumar				Jioji Konrote	Appointed Acting Chief Justice by President of Fiji on the Advise of the Prime Minister

References

Notes

1. "B. (1.) The Chief Justice and every other judge for the time being of the Supreme Court, shall be, by virtue of his office, a Judicial Commissioner for the Western Pacific for the purposes of this Order, and is in this Order referred to as a Judicial Commissioner. (2.) Where, in the opinion of the High Commissioner, the attendance of a Judicial Commissioner holding office as aforesaid is impracticable, or would be inconvenient, the High Commissioner may from time to time in the name and on behalf of Her Majesty, by writing under his hand and seal, appoint a person of legal knowledge and experience to be a Judicial Commissioner for particular purposes or for a particular time. The London Gazette, 8 September 1893 (26439), pp. 5119-5121.

Citations

1. "Constitution of the Republic of Fiji" (PDF). Electionsfiji.gov.fj. Archived from the original (PDF) on 23 September 2015. Retrieved 23 August 2015.
2. "Constitution of Fiji 1997". Wikisource. Retrieved 23 August 2015.
3. "Pacific Islanders Protection Acts 1872 and 1875". Act No. 35 & 36 Vic. c. 19. of 27 June 1872 (PDF). Archived from the original (PDF) on 4 March 2016. Retrieved 23 September 2015.
4. The effects of the Pacific Islanders Protection Acts were still being debated in 2012: see Anderson, Michael (5 January 2012). "Aboriginal Australia and the Sovereignty Revolution". Treaty Republic. Retrieved 23 September 2015.
5. Pacific Islanders Protection Acts 1875 Archived 25 September 2015 at the Wayback Machine (38 & 39 Vic. c. 51). Retrieved on 23 September 2015.
6. Care & Paterson 2007, p. 15.
7. Justice Gordon Ward (2005) Achieving effective legal representation in small Pacific island Commonwealth States Archived 31 March 2011 at the Wayback Machine. Commonwealth Law Conference, London, September 2005
8. Australian Dictionary of Biography
9. Appointment as CJ London Gazette, 23 April 1875
10. The Irish Canadian, 13 June 1877 Died in Colombo of cholera 1877
11. Brereton 1997, p. 104.
12. Cooper, Charles Alfred (1896) An editor's retrospect; fifty years of newspaper work p. 147
13. London Gazette, 19 June, 1883
14. Australian Dictionary of Biography
15. Bennett, John Michael. Sir Henry Wrenfordsley: Second Chief Justice of Western Australia, 1880-1883
16. Knighthood for Chief Justice of Fiji and Chief Judicial Commissioner for the Western Pacific Knighthood for Berkeley
17. 'The Times' 2 October 1918: 30 September 1918, death of Sir Henry Spencer Berkeley, 3rd son of Thomas Berkeley Hardtman-Berkeley
18. Dictionary of Australasian Biography
19. Family tree at RootsWeb
20. "No. 27476". The London Gazette. 23 September 1902. p. 6075.
21. Replaced Berkeley in 1902 The Otago Witness, 13 August 1902
22. Knighted June 1911, still CJ, W. Pacific
23. Sir Charles Major biog. Chief Justice of Fiji and Chief Judicial Commissioner for the W. Pacific 1902-14 (maybe 1902-11) and M.E.C.(possibly HC=High Commissioner) of Fiji 1905-14
24. Announcement as CJ, British Guiana The Edinburgh Gazette, 29 September, 1914
25. This source says that Albert Ehrhardt, the Attorney-General, was acting as JCWP in October 1910 (p.148) and that Charles Major "had returned to his substantive position as JCWP" by August 1911 (p.153) (Lavaka 1981, pp. 148, 153)
26. Ehrhardt was also Attorney General 1903-1914; acting for Major while Major was Acting Governor of Fiji (1910-1911). (Lavaka 1981, pp. 148)
27. (1857-1933) Charles Davson: called to the Bar at the Middle Temple in 1881. Joined the Bar of British Guiana in 1882. Solicitor General, 1898. Appointed Puisne Judge of Mauritius in 1905; Chief Justice of Fiji and Chief Judicial Commissioner for Western Pacific in 1914. Knighted 1917.
28. The Times 13 February 1917, p. 6
29. Died 6 November 1933
30. Stewart's Handbook of the Pacific p. 90
31. Daley 1996, p. 114.
32. His surname was Muir Mackenzie
33. He was appointed Chief Justice of Fiji and Chief Judicial Commissioner for the Western Pacific. Tuesday 25 February 1936 Corrie
34. definite dates of office
35. Biography
36. By May 1950 Seton was chairing a judicial inquiry in Kenya Kenya Gazette, 9 May 1950
37. CJ Tonga & Solomon Islands, a Judicial Commissioner 1930 Burra Record 18 June 1930
38. Knighted 1956 London Gazette 10 February 1956 p. 825
39. V. brief biog. His father's surname was Hein.
40. Notice of death, Sydney Morning Herald 6 October 1966
41. Picture of Hyne in judge's wig & robe
42. Christie's sale of medals with biog.
43. (was PJ Kenya) London Gazette 27 February 1962 p. 1682
44. Captain MacDuff, Col J. L. MacDuff, MC, m.i.d.; born Wellington, NZ, 11 Dec 1905; barrister and solicitor; CO 27 (MG) Bn Sep 1943–Feb 1944; 25 Bn Mar–Jun 1944; Adv Base, 2 NZEF, Jun–Jul 1944; Chief Justice, Fiji 1962; died Suva, 11 Jul 1963. Official History of New Zealand in the Second World War 1939–45 There is also an ordinary web page...
45. Auckland War Memorial Museum, Cenotaph database
46. "Fiji Law Reports" 9 FLR 129 (23 August 1963)
47. Mr Mills-Owens, Puisine (sic) Judge, Hong Kong, has been appointed Chief Justice of Fiji, the Colonial Office announced today Mr. Mills-Owens is 54. The Straits Times, 18 March 1964
48. Temp. Sub Lts. transferred to Permanent R.N.R,, in rank of Sub Lt. with seny. as stated: R. J. E. H. MILLS-OWENS, B.A. 9 December 1957 London Gazette, 31 January 1961
49. Clifford James Hammett, judge: born 8 June 1917; Magistrate, Nigeria 1946-52; called to the Bar, Middle Temple 1948; Senior Magistrate, Fiji 1954, Puisne Judge 1955, Chief Justice, Fiji 1967-72, Acting Governor General 1971; conjoint Chief Justice of Tonga 1956-68; Kt 1969; Regional Legal Adviser with British Development Division in the Caribbean 1975-92; married 1946 Olive Applebee (four sons, one daughter); died Henham, Essex 28 June 1999.Obituary, Independent Friday 9 July 1999
50. Knighted on board Britannia 5 March 1970, approved June 1969 London Gazette 23 April 1970 p. 4579
51. Private papers of Sir Clifford Hammett, Imperial War Museum
52. Puisne Judge, Fiji: The London Gazette, 24 February 1956
53. The Sydney Morning Herald, 16 July 1980
54. "Biography, Northern Territory official website". Archived from the original on 20 December 2014. Retrieved 28 June 2013.
55. The List of Notaries Public Archived 15 December 2013 at the Wayback Machine at judiciaryfiji.org shows that Grant was still CJ in 1980.
56. Full Biography with big picture Archived 20 November 2013 at Archive.today
57. Burke's Peerage
58. Involvement in politics? 1977
59. LLB Liverpool university in the 1940s
60. London gazette 10 June 1977 Knighted silver Jubilee honours 1977
61. His brother also studied at Liverpool uni.
62. Knighthood, June 1977 7th supplement to The London Gazette, 10 June 1977, p. 7137
63. Served 31 March 1980–31 July 2002. Reminiscences by Tuivaga of his time as Chief Justice. Legal Lali, 5:2,2 December 2002 Archived 29 July 2007 at the Wayback Machine. Retrieved 19 November 2013.

Sources

• Biles, John (1996). "Western Pacific Territories". In Olson, James Stuart; Shadle, Robert (eds.). Historical Dictionary of the British Empire, Volume 2. Greenwood Publishing Group. pp. 1156–7. ISBN 9780313293672.

• Brereton, Bridget (1997). Law, Justice and Empire: The Colonial Career of John Gorrie 1829-1892. University of the West Indies Press. ISBN 9789766400354.CS1 maint: ref=harv (link)

• Care, Jennifer Corrin; Paterson, Donald Edgar (2007). Introduction to South Pacific Law (revised, 2nd ed.). Routledge. ISBN 9781845680398.

• Daley, Kevin (1996), Communalism and the challenge of Fijian unity (PDF) (D. Phil. dissertation)

• Lal, Brij V.; Fortune, Kate (2000). The Pacific Islands: An Encyclopedia. University of Hawaii Press. ISBN 9780824822651.CS1 maint: ref=harv (link)

• Lavaka, Penny (1981). "The Tonga Ma'a Tonga Kautaha: a watershed in British-Tongan relations". Pacific Studies. Institute for Polynesian Studies. 4 (2, Spring 1981). Archived from the original on 4 March 2016.CS1 maint: ref=harv (link)

Further reading

• Library Resources for Pacific History, University of Auckland Library
• Duff, Peter (1997) The evolution of trial by judge and assessors in Fiji Care, Jennifer Corrin (ed.) Journal of Pacific Studies Volume 21: Sources of Law in the South Pacific.
• Handley, K.R. (2001) The constitutional crisis in Fiji. The Australian Law Journal, Volume 75, November 2001, pp. 688–693.