Judge or be judged: Accepting judicial appointment in an unlawful regime

Judicial independence is generally accepted as a key component of the rule of law. It empowers judges to make unbiased decisions without concern for political repercussions. In countries governed by an unconstitutional, unlawful or corrupt regime, such as Zimbabwe,2 Swaziland,3 Pakistan4 and Fiji,5 that independence, and in turn the rule of law, is threatened. More particularly, acceptance of judicial office in an unlawful regime could be regarded as making an implicit bargain with the government to recognise its validity.6 This article begins with a discussion of the importance of judicial independence, both from a national and an international perspective. It then examines the standards of judicial integrity and some of the factors that impact upon independence, including appointment and tenure, and the less obvious influence of jurisdiction. The article then moves on to consider the issues arising from acceptance of judicial office in an illegal regime in the context of Fiji, where lawyers and judicial officers have recently been forced to decide whether or not to accept appointment in a regime with an unelected government. After outlining the background to the latest events in Fiji, the article examines the competing considerations and ethical dilemmas involved in deciding whether to accept judicial appointment in an illegal regime. It then goes on to consider the possible repercussions of accepting such appointment from both a disciplinary and criminal perspective