Anthony Gates

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Anthony Harold Cumberland Thomas Gates is Chief Justice of Fiji.[1] Justice Gates is best known for his decision in Chandrika Prasad v. Att-Gen of Fiji [2000] 2 FLR 89; Prasad v. Republic of Fiji & Another [2001] 1 LRC 665; [2001] NZAR 21 in which he held that the Constitution of Fiji had not been abrogated by the military intervention in 2000, and that the Constitution continued to be the law of the land.[2] His decision was upheld by Fiji’s Court of Appeal, in February 2001. However, the decision which should have led to the restoration of the Parliament suspended by the coup of 2000, was not obeyed by the government of the day, the Government instead choosing to call for elections in 2001.

Justice Gates is also well known for his decisions on enforcing freedoms from inhumane treatment for prison inmates (Noa Yasa & Anor v State HAM063A.05S [2005] paclii) and for the treason-related hearings of persons alleged to have been involved in the political events in Fiji of 2000.

Early life[edit]

Justice Gates was born in the United Kingdom and is a graduate of Cambridge University. He went to Sierra Leone as a volunteer teacher with VSO (Voluntary Service Overseas) as well as Sri Lanka where he taught English at Royal College Colombo. After qualifying as a Barrister at Inner Temple London he practiced at the Bar in London. He took an appointment at the office of the Director of Public Prosecutions, Fiji in 1977. He became the Deputy DPP in 1981 and a Magistrate in 1986. He was dismissed as a Magistrate in 1985 when he refused to take a fresh oath of allegiance to coup leader Colonel Sitiveni Rabuka, the self made Head of State. He left Fiji to work for the Queensland State Director of Public Prosecutions and returned to Fiji in November 1993 and worked for Mr Siddique Koya. He was appointed to the High Court of Fiji in 1999.

Recent career[edit]

On 17 January 2007, 14 days after the removal of the Chief Justice by the military during the 2006 Fijian coup d'état, the President of Fiji, Ratu Josefa Iloilo appointed Justice Gates Acting Chief Justice. The substantive Chief Justice Daniel Fatiaki, had asked the then President of the Court of Appeal Justice Gordon Ward, to "hold the fort" for the judiciary as a de facto Acting Chief Justice. The President of the Court of Appeal was one of the judicial officers specifically disqualified under the Constitution from acting as Chief Justice. Chief Justice Fatiaki made public statements attacking Justice Gates for taking the position[3] as Justice Fatiaki had professional differences with Gates and resented his decision upholding the 1997 Constitution in Chamdrika Prasad when Justice Fatiaki himself had given advice to the President of Fiji to abrogate the Constitution.

Chief Justice Fatiaki was replaced by Justice Anthony Gates. As a result of the appointment, the Judiciary became divided between those judges of the High Court, Court of Appeal and Supreme Court who supported Justice Gordon Ward and judges and magistrates who supported the appointment of Gates as Chief Justice. The Court of Appeal judges who continued to sit heard a number of appeals against Chief Justice Gates's decisions and in almost all cases overruled him. The Court of Appeal even ordered Chief Justice to give oral evidence at the appeal hearing in Ratu Takiveikata's matter. This was an order which was unprecedented in Fiji's history. Takiveikata was charged with inciting a mutiny at the Queen Elizabeth Barracks intended to remove Commodore Bainimarama as the Commander of the Fiji military. The attempt failed because the majority of soldiers remained loyal to the Commodore. However after Takiveikata was convicted by Justice Gates two business associates who were his neighbors and friends provided affidavits in the Court of appeal. They alleged that Justice Gates had told them at a party for Bastille Day that he would imprison the accused after the trial. Later the Court of Appeal held that a doubt had been created by the evidence of the accused's friends and neighbors and quashed the convictions. A retrial was ordered. In the judgment the Court of Appeal failed to consider whether the trial had been fairly conducted by Chief Justice Gates, a consideration which is ordinarily mandatory in cases where judicial bias is raised. On retrial Ratu Takiveikata was convicted by the High Court and sentenced to life imprisonment.

The Court of Appeal quashed all Chief Justice Gates's decisions and none of the Court of Appeal Judges sought reappointment under his leadership. In September 2007 six judges from the Fiji Court of Appeal who were from New Zealand and Australia resigned.[4] Recommendations for new appointments to the Bench were made by the Judicial Services Commission to the President. These new appointments upheld the claim of the deposed Prime Minister of Fiji Mr Laisenia Qarase that the 2006 Military takeover was illegal and had no validity. In doing so they overruled the High Court presided over by Chief Justice Gates. Although this decision has been criticised for lack of internal consistency in that the Court of Appeal failed to order the reinstatement of the Qarase government instead ordered the appointment of an interim government and this decision confirmed the independence of Fijian Judiciary post 2006.

In 2009 after the decision of the Court of Appeal, the 1997 Constitution was purportedly abrogated by the President of Fiji, Ratu Josefa Iloilo and all judicial appointments were terminated. The Chief Justice was re-appointed after a lapse of two months and he has since then re-built the judiciary. Most appointments are from Sri Lanka, although some judges and magistrates are Fijian or from New Zealand, Hong Kong, or Australia.

Resident Judge of Court of Appeal Justice William Marshall alleged in his petition that Chief Justice Gates has been briefing Fiji's Prime Minister Frank Bainimarama and that led to the expulsion of envoys from Australia and New Zealand from Fiji.[5] Gates acted as temporary president of Fiji between late September and early October 2010 during the absence of Ratu Epeli Nailatikau.[6] In December 2010 the United States Embassy who remained critical of Gates appointment as Chief Justice denied to issue Gates with a visa to represent Fiji at an International Criminal Court convention.[7]

A 2012 analysis of Fiji judicial matters presented in the form of a Petition by Justice William Marshall, Resident Justice of Appeal in Fiji[8] considers that Gates was the subject of mis-justice from the ruling in the Takiveikata case as a result of political interference but that he himself has become an agent of the Attorney General in the Interim Government.[9]

Justice Marshal who wrote a lengthy Petition to the Prime Minister saying the judiciary is not independent, offered his own services as political adviser to the Prime Minister.

The Marshall petition has been criticized in the strongest terms by the President of Fiji's Court of Appeal in a judgment on contempt of court in AG vs Tai Nicholas where the judge said that William Marshall was happy enough with the independence of the judiciary until his contract was not renewed.

The Fijian judiciary continues to function under the leadership of Chief Justice Anthony Gates with an emphasis on open justice, compulsory judicial training and case management. There are still delays in the court system in the civil jurisdiction, but criminal cases can now be heard within 1 year of the charges being laid.

The honorable Chief Justice has made public statements on the need for Fiji to have a judiciary after 2006 and on the travel bans imposed on Fiji's judges by Australia and New Zealand.

Notes[edit]

References[edit]