What it said was that there is “uncertainty as to whether appointment to judicial office in an illegal regime amounts to professional misconduct…”
These judges are not being asked to decide the legitimacy and validity of a regime. This regime has come into power by a successful coup and they have, by decree, made it clear that the question of the regimes validity or legitimacy is outside the jurisdiction of the courts.
Whether this regime is valid and legitimate is a “political question” – so no one is asking these judges to rule and legitimize the coup.
However, the courts have to survive and the rule of law has to survive and for that we still need competent judges. By taking up positions in the judiciary, these judges are not endorsing or legitimizing the regime.
We have seens numerous coups throughout the world in the last 50 years, and this same issue has been discussed every time. And there are people who come down on both sides of this argument.
Here in Fiji we had a similar situation in 1987 – the constitution was abrogated, judges were fired or jailed, the supreme court was abolished, the Chief Justice was advising the coup leaders and we had Sri Lankan come in to fill in the gap. This is nothing new.
You go look at judicial responses to coups through history and you would see that what is being done now in Fiji is nothing new.
