Daniel Fatiaki

Taniela (Daniel) Vafo'ou Fatiaki CF (born 1954) ^[1] was the Chief Justice of Fiji from 1 August 2002, when he succeeded Sir Timoci Tuivaga, till 5 December 2008. As Chief Justice, he presided over both the High Court and the Supreme Court, but is constitutionally barred from presiding over, or even sitting on, the Appeal Court. On 3 January 2007, he was sent on leave by the Republic of Fiji Military Forces, which had seized power on 5 December 2006. On 19 January, he was formally suspended, pending an investigation into allegations of misconduct. This investigation was dropped in December 2008 as part of a deal that involved his formal resignation.

Fatiaki was previously Chairman of the Fiji Law Reform Commission in 1994 and 1995.

Controversial appointment

Fatiaki's appointment was not without controversy. Then Opposition leader Prem Singh objected on the grounds that in the midst of the Fiji coup of 2000, Fatiaki had joined Tuivaga and Justice Michael Scott in advising the then President, Ratu Sir Kamisese Mara, to abrogate the constitution, in accordance with the wishes of the Military. Mara refused, and resigned. The three Justices subsequently recognized the Interim Military Government of Commodore Frank Bainimarama, and drafted decrees abrogating the constitution, abolishing the Supreme Court, making the Chief Justice the President of the Appeal Court, and raising the retirement age of the Chief Justice from 70 years to 75. (These changes were later reversed after a High Court decision reinstating the constitution on 15 November 2000 was upheld by the Appeal Court on 1 March 2001. Rev. Akuila Yabaki of the Citizens Constitutional Forum, a human rights group, said that Fatiaki's participation in such anticonstitutional actions should disqualify him from holding the office of Chief Justice, and suggested that as the judiciary had been thoroughly compromised politically, it would be best for the time being to appoint a Chief Justice from outside of Fiji (the constitution allows members of the judiciary, unlike other government officials, to be non-citizens, and it is not unusual for retired judges from other Commonwealth countries to be appointed to the bench). Prime Minister Laisenia Qarase disagreed, however, and President Ratu Josefa Iloilo (who had taken office on 13 July 2000) appointed Fatiaki on his advice, saying he was confident that Fatiaki would maintain the same standards of integrity that Tuivaga had upheld. He has 5 brothers Seforana,John,Alec,Joachim and Christopher. He has one sister called Violet.

The 2006 coup

Forced leave

In the wake of the military coup that deposed the Qarase government on 5 December 2006, Commodore Josaia Voreqe (Frank) Bainimarama, the Commander of the Republic of Fiji Military Forces and Acting President of Fiji, sent Fatiaki on leave.^[2] He told the Fiji Times on 7 January that he had been told to go on leave or be dismissed. ^[3] Earlier, Fatiaki had said just before the coup that the judiciary would uphold the Fijian constitution and would go down with it if it were abrogated, the Fiji Times quoted him on 5 December (the day of the coup) as having told a conference at the Shangri La's Fijian Resort in Yanuca, Sigatoka that weekend.

Criticism of Acting Chief Justice

Fatiaki condemned as a "disgrace" the appointment of Anthony Gates as Acting Chief Justice on 16 January, saying it was unconstitutional and compromised the integrity and independence of the judiciary.^[4] He criticised fellow-Judge Nazhat Shameem for her role in the decision, saying that she had unlawfully chaired a meeting of the Judicial Service Commission (JSC) and written to President Ratu Josefa Iloilo on behalf of the JSC, identifying herself as Chair of the JSC, which is in fact a role reserved for the Chief Justice, recommending the appointment of Gates. He condemned this as a disgraceful and cowardly act,^[5] which he denounced as a betrayal of his trust and of the judiciary,^[6] and said, contrary to assertions from Shameem and interim Attorney-General Aiyaz Sayed-Khaiyum, that his leave of absence was forced, not voluntary. Attorney-General Khaiyum said that Shameem had chaired the meeting on his orders, not her own initiative.^[7]

Return to work

In an act of defiance towards his forced leave and the appointment of Justice Gates as Acting Chief Justice, on 18 January 2007 Justice Fatiaki returned to work at his office, saying in interviews:

"I have never ceased to be the Chief Justice of this nation. I have decided that the time is right for me to come back and I am no longer going to wait for people to recall me. People are telling me that I'm voluntarily on leave, well lets see...I voluntarily also return to the office.

At this point in time the acting Chief Justice ceases to function because I'm back in my office. The Chief Justice is back in his office and back heading the judiciary where he belongs.

I don't have guns, all I have is my conscience and power of the rule of law. If this government is true to its word and supports the independence of the judiciary then I have nothing to fear at all." ^[8]

After this, a team of RFMF soldiers arrived at his office, asking him to leave the premises, followed by a visit to his chambers by the Senior Superintendent of Police, Jahir Khan along with Police’s Elite Tactical Response Team officers. It is understood that Khan asked Justice Fatiaki to voluntarily vacate the chambers, and later escorted him to a police vehicle reportedly to drop him at his Suva residence.^[8] Interim Attorney-General Aiyaz Sayed-Khaiyum later accused him of having tried to illegally remove from his office documents that are subject to an investigation ^[9] into his alleged role in the 2000 coup,^[10] claims that Fatiaki angrily denied.^[11] He could not have removed any documents, he said, as two military officers were with him the entire time.

Formally suspended

On 19 January 2007, it was revealed that President Ratu Josefa Iloilo had signed a decree formally suspending Fatiaki, pending an inquiry into allegations that he had been involved in the 2000 coup, to the extent of drafting decrees and giving legal advice to coup frontman George Speight.^[12]

Fiji Law Society President Devanesh Sharma condemned Fatiaki's suspension and threatened legal action.^[13]

On 22 January, it was announced that on 10 January, a directive from the Prime Minister's Office had banned Fatiaki from leaving Fiji. Parmesh Chand, the Chief Executive Officer of the Prime Minister's Office, informed the Chief Registrar's Office that while Fatiaki was suspended, he would be banned from attending any meetings or conferences abroad. From 20 to 24 January, he had been scheduled to attend international meetings of jurists in Karachi, Pakistan, and in Perth, Australia.^[14]

Meanwhile, Fatiaki announced on 22 January that he was preparing to take legal action against his suspension.^[15][16]

Resignation

Fatiaki formally resigned as Chief Justice on 5 December 2008. This came as a part of a deal with the interim government, under which he would receive a full pension and a F$275,000 payout,^[17] the state would discontinue its investigation into allegations of abuse of office and corruption while he was Chief Justice, and he in turn would drop (within seven days) all legal proceedings against the interim government. Both sides undertook not to pursue any future legal action against the other.^[18][19]

Opinions

In an address to the convention of the Fiji Law Society at Warwick Hotel on the Coral Coast on 2 July 2005, Fatiaki called on the legal profession to uphold standards of integrity. It was important, he said, for the legal profession to be "independent of any centres of power, whether public or private, and of any cause." He maintained that the most valuable asset of any profession was its collective reputation.

Vanuatu

Fatiaki has served as a judge on the Supreme Court of Vanuatu, the superior court in Vanuatu.

Personal life

Daniel Fatiaki is a Roman Catholic and a native of Rotuma, a Fijian Dependency which enjoys a measure of autonomy but is otherwise integrated into Fiji politically and economically despite its cultural divergence (Rotumans are Polynesian, unlike ethnic Fijians, who are predominantly of Melanesian stock). He is the first Rotuman to be appointed to the bench in Fiji, and his appointment as Chief Justice resulted in great public rejoicing on the island. He is married to Martha and has 4 sons. He was made a Companion of the Order of Fiji, together with Vijay Singh, in 2004.

References

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