The Head Heeb

Cartesian courts

New Zealand correspondent Errol Cavit informs me of a curious case in which a court is being asked to rule itself out of existence. This unique case is the result of an ongoing sexual assault investigation on Pitcairn Island, a dot on the map in the South Pacific with a population of 47. As might be expected, Pitcairn had only a rudimentary legal system, with an Island Court consisting of an elected magistrate and two part-time councillors. In the twenty years before 1999, only two cases came before this court, both resulting in minor fines. The island's three jail cells were used to store life jackets.

A police investigation in 1999, however, led to allegations of widespread sexual abuse against young girls. To date, seven Pitcairn residents and two expatriates have been charged, and as many as 10 others remain under investigation. This meant, not only that a significant fraction of the Pitcairn population was under indictment, but that the island faced the prospect of an extensive and logistically difficult trial. The sheer number of defense lawyers, investigators, prosecutors and court personnel involved was likely to exceed the population of the island, and there simply wasn't anyplace to put them all.

The United Kingdom, which has jurisdiction over Pitcairn, responded with an order in council providing that the Pitcairn courts may "sit in the United Kingdom, or in such other place as the Governor, acting in accordance with the advice of the Chief Justice, may appoint." In the end, however, it was decided that New Zealand rather than the United Kingdom was the better location to hold the trial. New Zealand was closer to Pitcairn, the Pitcairn governor was based there, and it was home to most of the Pitcairn expatriate population.

In October 2002, the UK and New Zealand signed an agreement under which New Zealand assumed responsibility for the Pitcairn justice system. The New Zealand Parliament enacted the Pitcairn Trials Bill, allowing trials under Pitcairn law to be held in Auckland before a New Zealand judge, on December 17. Notably lacking, however, was the approval of Pitcairn's elected Island Council - approval that would probably have been withheld in any event given the public sentiment in favor of holding the trial on Pitcairn.

Thus, the recent motion by defense counsel to have the Auckland-based court rule itself out of order:

The in-chambers hearing before Pitcairn Magistrate Gray Cameron was the first use of the Pitcairn Trials Act passed in December last year, allowing trials under Pitcairn law to be held in New Zealand.

[...]

Yesterday, [defense counsel] Paul Dacre indicated for the first time that he would go further and, in what will be a ground-breaking action, try to get the entire Pitcairn legal structure struck out... Mr. Dacre said outside the court that he would argue that the structures established in the past three years were flawed and that the trials should be abandoned.

[...]

Shortly after Mr Cameron found the point on the circle where Mr Dacre's arguments met.

"Mr Dacre is asking me to make a ruling about suppression on the basis that I don't have the power to make rulings," he concluded.

After nearly two hours in a room that was somewhere else, in a court that might not have properly existed, Mr Cameron reserved his decision.

This is, as far as I'm aware, the first occasion on which a court has been asked to dissolve itself. A similarly Cartesian near miss, however, occurred on Fiji in the wake of the coup of May 19, 2000. Among the first acts of the military government that took power in the wake of the coup was to abrogate the 1997 constitution. This was followed by the Judicature Decree, in which the military authorities abolished the Supreme Court, leaving the Court of Appeal as the highest court in the nation.

Shortly afterward, a displaced Indo-Fijian farmer, Chandrika Prasad, sued in the Fijian courts to have the military government declared illegal. On March 1, 2001, the Court of Appeal ruled in Prasad's favor, holding that the interim government was unlawful and that the 1997 constitution had never been validly abrogated. Among the effects of the Court of Appeal's ruling was the nullification of the Judicature Decree and, therefore, the reinstatement of the Supreme Court as the highest court of Fiji. This meant that the interim government now had an avenue of appeal - but could only take that appeal if it acknowledged that its own decree was invalid.

If the government had appealed to the reconstituted Supreme Court, the paradox would have become even worse. A ruling in favor of the government would mean that all its decrees - including the decree abolishing the Supreme Court - had been validly promulgated. This would, in effect, have required the court to rule not only that it did not exist but that it had not existed for almost a year. At that point, no doubt, the Supreme Court and the interim government would both have vanished amid infernal laughter.

Fortunately, the government took the honorable course by accepting the reinstatement of the constitution and calling fresh elections. The first court to face an existential paradox will thus be, not the Supreme Court of Fiji, but one from a Pacific island smaller still.

Posted by jonathan at May 11, 2003 08:07 PM