What Judge Gates said - Part 2

The Salient Facts

On 19 May 2000 Fiji's Parliament suffered an armed invasion and takeover. George Speight with some civilian supporters and a band of armed soldiers from the military forces moved in. Parliament was in session at the time. The Members had been elected the previous year under the 1997 Constitution. For the most part the Opposition Members were released and only the Coalition Government and its Members of Parliament were held. Others present, staff and visitors, were released. The Government, including the Prime Minister, Deputy Prime Minister, Members of Cabinet and Government MPs were all held hostage. From TV coverage of which I take judicial notice the rebel group sought through their vociferous if not always translucid leader, to gain abolition of the democratic provisions of the Constitution as presently framed and assertion of indigenous Fijian supremacy. Beyond that it was impossible to discern specific claims.

Fiji Television, as well as international stations relayed on Fiji Television gave daily and frequent coverage of events. The City of Suva was extensively pillaged with shops being chiefly targeted. Some were burned, most were looted. Some estimates assessed the extent of the damage at F$35 million. I take notice of these scenes and accounts, as live events unfolded in the crisis. Speight and his group purported to abrogate the Constitution the next day, the 20 May 2000. Ratu Jope Seniloli was sworn in as the rebels choice of President. Various members of the group were sworn in as Ministers, and decrees under the auspices of the Taukei Civilian Government were published. On 19th May 2000 the lawful President declared a State of Emergency.

On 27 May 2000 the lawful President, acting pursuant to powers under Section 106(1) of the Constitution, appointed Ratu Tevita Momoedonu the Minister for Labour, Industrial Relations, and Immigration to perform the functions of the Prime Minister. Ratu Tevita had not been in Parliament at the time of the invasion, and was not held hostage. The Prime Minister was held largely incommunicado in the Parliamentary complex. On the same day the President purported to prorogue Parliament for 6 months pursuant to section 59(2) of the Constitution. This bringing to an end of the then current session of Parliament was gazetted, and the gazette notice stated that it was done in exercise of powers on the advice of the Acting Prime Minister.

The Applicant states in his first affidavit that "on 27 May the President Ratu Mara sacked the elected Government of Prime Minister Mahendra Chaudhary and claimed control of the country." None of the Respondents affidavits refer to such facts, the dismissal of the Prime Minister, his government, or to the assumption of full executive powers by the President. Nor has any Gazette Notice been provided to me of these alleged facts. I have no reliable official evidence that the President did dismiss the Prime Minister or his government, or that he assumed executive control. However, without Parliament, control would have vested in him so that he could act in the national interest. In his affidavit Commodore Bainimarama referred to the deteriorating law and order situation. It was obvious that persons freely came and went into the Parliamentary complex. The authorities allowed a human shield thereby to gather so as to protect the hostage takers. The surrounding area and the complex were not properly sealed off.

Indeed the situation was quite unlike any other hostage crisis in the way it was handled, or perhaps not handled. The rebels roamed around the city of Suva at odd times apparently when they felt like it. The country appeared to be drifting daily into further anarchy. Casualties occurred to the armed forces and an unarmed policeman was shot dead by the rebels. That same night 28 May 2000 the lives of the President and his immediate family were threatened by the rebels. Fiji TV One's premises were also attacked by a rampaging mob who were allowed to emerge unchecked from the Parliamentary complex. The TV station was seriously vandalised and put out of operation. Weapons were discharged by the rebels indiscriminately and the town was intimidated.

The President and his family were evacuated to a Fiji naval vessel on Monday 29th May 2000. Commodore Bainimarama stated in his affidavit: The President then stated that he would relinquish his post as President. As a result of the absence of any other viable alternative at that time I assumed Executive Authority from the President as Commander and Head of the Interim Military Government of Fiji,

That night Commodore Bainimarama promulgated the Constitution Revocation Decree 2000 and the Existing Laws Decree 2000, stating this was done "in an effort to restore normality and to ensure the overall safety of the hostages." The Commodore promulgated other Decrees subsequently "to ensure smooth continuance of government administration and the related services."

Meanwhile he directed negotiations with the George Speight group in order to secure the release of the hostages. He appointed an interim military government on 3rd July 2000. On 9th July 2000 an agreement was signed by the Commodore and by George Speight, known as the Muanikau Accord. In consequence Commodore Bainimarama promulgated the Transfer of Executive Authority Decree 2000 and the Immunity Decree 2000 which came into force on 13 July 2000. Then followed the convening of the Bose Levu Vakaturaga (Great Council of Chiefs), all the hostages were released after being held for a total of 56 days, and Ratu Josefa Iloilo was recommended by the BLV for appointment and was appointed President. However, this appointment was made without consultation with the Prime Minister as was required by section 90 of the Constitution.

Thereupon the new President appointed an interim civilian administration. Eventually some of the George Speight group were arrested and taken into custody. They have yet to answer a variety of charges, chief of which is treason. Most of their supporters were seen on the television by the rest of the nation inside the Parliamentary complex during the hostage crisis. Whoever were the group's sponsors, they have yet to be identified, or if identified already, yet to be fully investigated or charged. Reassuringly some progress is reported to the press by the police authorities in this regard.

Commodore Bainimarama explained his assumption of extra-constitutional powers by stating: "our whole nation was on the brink of total anarchy and the safe release of the hostages was the primary and paramount concern". In his affidavit he concluded :

"Further, I verily believe that the interim government headed by Prime Minister Qarase has effective control and acceptance by the majority of Fiji's people and the administration has acquired legitimacy by such widespread acceptance by the people of Fiji." I do not have an affidavit from Ratu Sir Kamisese, to provide the court with events on the takeover of power, as he saw it. His Excellency was widely reported as stating that he had "stepped aside". I shall return to the Applicant's second affidavit later. These then are the basic facts.

Procedure for making changes to the Constitution

Man long ago realised that he could not live in a world without laws. In order to defeat tyranny, despotism, untrustworthy and arbitrary princes, robber barons, provincial nabobs and court favourites, he came to see a capacity for good governance in the State was to be had through the assistance of a constitutional document. In some countries such supreme law was unwritten but obeyed as a matter of established convention, and upheld and developed by the courts. Most countries nowadays have a written constitution, as does Fiji.

Fiji's 1997 Constitution is to be described as rigid or inflexible as opposed to flexible within the categorisation of Bryce [see Bryce: Studies in History or Jurisprudence (1901). See also A.V. Dicey "The Law of the Constitutions 10th Edition by Wade."] It is also a supreme constitution as opposed to a subordinate one within the Wheare categorization. Fiji's Constitution states in section 2(1) that it is supreme. As with that other rigid constitution, the United States Constitution, Fiji's Constitution has special procedures for the making of alterations to it. (see Chapter 15).

Section 190 states:

This constitution may be altered in the way set out in this chapter and may not be altered in any other way. (emphasis added)

The purpose of such a provision is to ensure due and careful consideration before the supreme law of the land is changed, including the safeguard of a 2/3 majority of both Houses, 60 day lapses between the 2nd and 3rd readings of bills so as to allow for proper debate, and provided certain veto provisions are not exercised against the Bill.

It is obvious that an usurpation of the power of Parliament, that is the Parliament consisting of the President, the Senate and the House of Representatives by subverting or abrogating the Constitution does not amount to an amendment within the supreme law. A challenge made in this way is an unlawful act. What laws therefore can come to the rescue of those who would otherwise be guilty of treason by such usurpation? When one considers the amount of incursion and damage caused to the lives of the ordinary people of Fiji as a result of the attempted civilian coup of the George Speight group and the extra-constitutional disengagement now affecting Fiji nationally and internationally it is not difficult to see why such acts should be visited with the most serious charge in the Penal Code, namely treason. The civilian coup of George Speight and his group failed. It never achieved any legitimacy and therefore its legality or lack of it does not fall for further consideration. Prayer (a) of the Applicant's summons seeking a declaration that the attempted coup of 19 May was unsuccessful is therefore granted.

Declaration of State of Emergency

I have no formal evidence before me of such Declaration apart from the Applicant's first affidavit. I have been shown no Gazette Notice of such Declaration if it occurred, and as I have already indicated I have no affidavit from H.E. The President stating that he exercised such powers. I was handed a copy of a Legal Notice numbered simply as No. 1 and dated 19th May 2000. I am not certain whether these Public Emergency Regulations were indeed gazetted. If they were not, this is hardly surprising in the disturbing and distracting times in which government had to operate.

They were no doubt done in great haste, and this probably explains why they incorrectly refer to being made under the Public Safety Act instead of the more recent Emergency Powers Act 1998. Assuming for the purposes of the order sought that the President had so proclaimed, under what powers was he acting?

Since 19 May 2000 was the day on which so much rioting, looting and destruction occurred in Suva it is hardly surprising that the President formed the view that a state of civil commotion had arisen, justifying the making of the proclamation.

Chapter 14 of the Constitution deals with Emergency Powers. Section 187 provides for Parliament to make a law conferring power on the President to proclaim a State of Emergency in such circumstances as that law prescribed. The Emergency Powers Act 1998 [Act No. 28 of 1998] came into force on the same day as the 1997 Constitution 27 July 1998. Besides empowering the President to make Emergency Regulations (which he did and promulgated on 19th May 2000, the day of the civil commotion) it also empowered the President to proclaim a State of Emergency "acting on the advice of Cabinet." Four circumstances are set out for which the Cabinet can advise
in favour of making such a proclamation [Section 2(2) (c) to (d)]. It was not possible for the Cabinet, held hostage for the most part in Parliament with only 2 or 3 Ministers free outside, to decide and communicate their advice to the President.

In certain circumstances Parliament may disallow a proclamation of a State of Emergency. It was not practicable for parliament to debate the matter, whilst held hostage. In cases of real emergency the maxim "salus populi est suprema lex" applies (that is: the welfare of the people is the paramount law). Oliver Cromwell, who had briefly studied law at Lincoln's Inn but who had probably gained his directness and common sense from farming in Cambridgeshire allegedly said : "If nothing should be done but what is according to law, the throat of the nation might be cut while we send for someone to make a law."

I am satisfied that the President acted as lawfully as he could in the circumstances, that he acted under the doctrine of necessity and that he acted in an attempt to buttress the lawful framework of the State.

Under prayer (b) therefore I decline to grant the declaration sought in so far as it relates to the action of the President Ratu Sir Kamisese Mara. I turn now to consider whether the doctrine of necessity has some bearing on the actions of Commodore Bainimarama in legitimizing otherwise unlawful acts.

The Doctrine of Necessity

A useful starting point is Haynes P's conclusions after an exhaustive review of all the cases on necessity and extra constitutional situations in Mitchell's case (supra) at 88h et seq.:

(3) I would lay down the requisite conditions to be that:

(i) an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the State;

(ii) there must be no other course of action reasonably available; (iii) any such action must be reasonably necessary in the interest of peace, order, and good government; but it must not do more than is necessary or legislate beyond that;

(iv) it must not impair the just rights of citizens under the Constitution; (v) it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such.


(4) It is for this court to pronounce on the validity (if so) of any unconstitutional action on the basis of necessity, after determining as questions of fact, whether or not the above conditions exist. But it is for the party requiring
the Court to do so to ensure that proof of this is on the record.

(5) Such validation will not be a once-for-all validation, so to speak, it will be a temporary one, being effective only during the existence of the necessity. If and when this ends, the right constitutional steps must be taken forthwith, that is, within a reasonable time.

(6) I am not at all attracted to the principle of "condonation" invented and applied in Jilani v. The Government of the Punjab. I can find no support for it either in the classical maxims or in the cases or in the writings of the jurists ancient and modern. In my view, necessity, when it applies, must legitimise or not legitimise; I find it difficult to conceive of a judicial jurisdiction to pardon an illegality. To pardon should be the prerogative of the executive. I would not adopt this principle of 'condonation' on the basis
of necessity as law in Grenada."

On the question of onus of proof of regularity or lawfulness Cullinan CJ in Mokotso (supra) at 132 he said:

"…the burden of proof of legitimacy must always rest upon the new regime. No presumption of irregularity can operate in the regime's favour; indeed there must be a presumption of irregularity…"

Ackermann JA in Makenete's case (supra) at 65b said:

"I likewise agree that the onus of proving that a government is entitled to recognition as lawful notwithstanding its revolutionary origins lies on the government claiming such recognition and in particular when it relies on such recognition as a defence to an individual's claim that it has acted in breach of the previous constitutional order. I also support the view that a court ought not lightly to uphold such a defence or uphold it on insubstantial grounds or persuade itself to uphold it precipitately on the evidence of rapid military or executive success which might give a misleading impression of 'effective' government control in the narrow sense of the word."

The courts have recognised the existence of a law of necessity. Such a law permits emergency action to be taken validly in times of extreme crisis, such action being in normal circumstances illegal. But if such action is taken it must be transient and a proportionate response to the crisis [see de Smith and Brazier: Constitutional and Administrative Law 7th Edit. 1994 at 73-74; and Mitchell's Case (supra) at 88e wherein Haynes P said:

"(I) Whether we read it into the written Constitution of 1973 as an implied constitutional provision thereof or regard it as a purely extra doctrine, this Court should adopt and adapt necessity as a constitutional source of validation of unconstitutional acts and legislation in fit cases."

Whatever is done however should be done in order to uphold the rule of law and the existing constitution. Necessity cannot be resorted to in order to justify or support the abrogation of the existing legal order. The doctrine is valid only to protect not to destroy.

Brookfield in [1988] New Zealand Law Journal 250 summarised the principle in "The Fiji Revolutions of 1987" as :


"the power of a Head of State under a written Constitution extends by implication to executive acts, and also to legislative acts taken temporarily (that is, until confirmed, varied or disallowed by the lawful Legislature) to preserve or restore the Constitution, even though the Constitution itself contains no express warrant for them." (emphasis added)

The doctrine does not permit necessity to be used as a means of subverting the existing constitutional structure either by abrogating the existing legal order or by bypassing the path laid out for lawful amendment. It may in a fit case allow for a short-lived temporary suspension. What can and cannot be done therefore? Lord Pearce in his well-remembered dissenting advice in the Privy Council in Madzimbamuto v. Lardner- Burke [1969] 1 AC 645 at 732E advised Her Majesty over the unilateral declaration of independence by Rhodesia as follows :

"I accept the existence of the principle that acts done by those actually in control without lawful validity may be recognised as valid or acted upon by the courts, with certain limitations namely (a) so far as they are directed to and reasonably required for ordinary orderly running of the State, and (b) so far as they do not impair the rights of citizens under the lawful (1961) Constitution, and (c) so far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful Sovereign. This last, ie (c), is tantamount to a test of public policy." Fieldsend A.J.A. in the Court below had said:

"The act must not be intended to, or in fact in its operation directly, further or entertain the usurpation" [1968] 2 SA 284 at 441: Following the outbreak of the Civil War in the USA the Supreme Court of the United States held that a limited validity might be accorded to the actions of the southern confederacy. Chase CJ stated for the Court at 733:

"It is not necessary to attempt any exact definitions within which the acts of such a state must be treated as valid or invalid. It may be said perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual, though unlawful government, and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void". (emphasis added)

It is obvious therefore, that the doctrine of necessity could come to aid Commodore Bainimarama in resolving the hostage crisis, imposing curfews, maintaining roadblocks and ensuring law and order on the streets. Once the hostage crisis was resolved and all other law and order matters contained if not entirely eradicated, the Constitution, previously temporarily on ice or suspended, would re-emerge as the supreme law demanding his support and that of the military to uphold it and to buttress it against any other usurpers. The doctrine could not be used to give sustenance to a new extra-constitutional regime Mokotso (supra) at 122. Nor could it provide a valid basis for abrogating the Constitution and replacing it with a Constitutional Review Committee and an Interim Civilian Government. Necessity did not demand any of that.

Commodore Bainimarama makes his intentions in dealing with the emergency situation very clear. They were to preserve law and order, "to save the State from further destruction and to ensure the safe release of the hostages in Parliament," "to restore normality", "our whole nation was on the brink of total anarchy and the safe release of the hostages was the primary and paramount concern." Subject to an analysis of the effectiveness doctrine below, it can be concluded therefore that there was no foundation, cause or genuine desire to remove the 1997 Constitution. Nor is there evidence that Fiji had been affected by a state of affairs when "there was no real democracy because the country, by and large, was under one man rule" "where the judiciary was ridiculed", "where an attempt was made to politicise the Army", "where the representatives of the people are accused of massive corruption", "disqualification suits abounded for corrupt practices", and when the economy was highly precarious, bank loans defaults rampant and generally no accountability or transparency of government. Such a situation leading to constitutional deviation could be validated for a transitional period on the ground of State necessity (see Short order of Judgment of Supreme Court of Pakistan on Petitions challenging the provisional constitutional order and proclamation of emergency per I.H. Khan CJ in a decision made this year 2000). No such demonstrably desperate situation faced Commodore Bainimarama concerning the state of health of the body politic and social fabric of Fiji. There was thus no need to pass any Decrees purporting to abrogate the 1997 Constitution. Nor at the end of the hostage crisis was there need, in order to shore up the Constitution and preserve the fabric of society, any need to have the Government of the day dismissed. These were unconstitutional and unnecessary acts unprotected by the doctrine of necessity.

Nor was it necessary to seek to dilute rights in the Constitution granted to its inhabitants by the people's democratically elected representatives. Any decree in which it was sought to do so, would be unlawful at least to that extent, such as for example section 19(7) (g) of the Interim Military Government Decree No. 7 the Fundamental Rights and Freedoms Decree 2000, purporting to narrow the meaning of equality in section 38 of the Constitution. Similarly there was no need to prorogue the Parliament of Fiji, even more so since the Emergency Powers Act required Parliament to be recalled if proclamation was to be made [section 4 Emergency Powers Act 1998; section 188 of the Constitution].

What is the Duty of the Judiciary upon the occurrence of extra-constitutionality?

Judges are required to uphold lawfulness and to apply justice. Upon being appointed they swear both the oath or affirmation of allegiance to the Republic of Fiji and the oath or affirmation for the execution of judicial office [section 135 Constitution]. The judicial oath as set out in Schedule D at page 112 reads:

"I, A.B. , do swear that I will well and truly serve the Republic of the Fiji Islands, in the office of [ ] . I will in all things uphold the Constitution and I will do right to all manner of people in accordance with the laws and usages of the Republic, without fear or favour, affection or ill will [So help me God!]

The oath is two pronged. First the judge swears to uphold the Constitution, and second he swears that he will do right (ie. will do justice) to everyone in accordance with the laws and usages of the Republic (that is he will not go against the law or make a perverse decision or one not in accordance with the law). Finally he will so act, with courage, without bias, without favouring anyone, and without malice or spite towards anyone. A judge's first duty is to uphold the Constitution. Because a judge may be called upon to pronounce upon the legality of executive action when an instance of supra-constitutionality occurs, it is a wiser counsel for a judge, indeed for the Bench of Judges, to make no public statement on the matter. In Makenete (supra) Ackermann JA at 56c said:
"A peculiar duty is thereby cast upon the court to remain open to argument when subsequently called upon to adjudicate in a dispute regarding the legitimacy of the new regime."

A judge's strength and value lies in continuing to hold office and to carry out his or her duties with integrity, even-handedness, boldness and courage. If the judiciary is deserving of any respect, it must at least aim for these precepts.

What does even-handedness mean when the judicial oath enjoins the judge to uphold the Constitution? Events will no doubt place the Constitution into one of three categories, namely "abrogated" "still in being" or "wait and see". One must commence from the presumption however that the Constitution is still in being and not subverted. The onus of impugning the validity of the Constitution lies on those seeking to suggest it is no longer operative. In Premier of Kwazulu-Natal & Others v. The President of the Republic of South Africa & Others Constitutional Court of South Africa case No. CCT 36195 (unreported) 29 November 1995 Mahomed DP said at 47 :

"There is a procedure which is prescribed for amendments to the Constitution and this procedure has to be followed. If that is properly done, the amendment is constitutionally unassailable."

It is unchallenged that the Fiji Constitution has not been amended by the new regime in the way expressly provided for in Chapter 15. The doctrine of necessity is not applicable to validate a change in the Constitution either. That leaves only a consideration by the court as to whether the interim government has established a proper claim to have succeeded the previous regime on the doctrine of effectiveness. Such a doctrine would clearly take some time, perhaps over months if not a year or two, before it could be established with certainty. I shall return to this consideration later.

The courts have pronounced frequently on the presumption in favour of the Constitution. In Madzimbamuto (supra) Lord Pearce said at 732C :

"The judges under the 1961 Constitution therefore cannot acknowledge the validity of an illegal government set up in defiance of it. I do not agree with the view of Macdonald J.A. that their allegiance is owed to the rebel government in power."

"Judges could not carry on," his Lordship said at 742 B "without acknowledging some formalities and acts that had an illegal origin." In Makenete (supra)

Ackermann J.A. quoted extensively from Fieldsend A.J.A. sitting in the Court of Appeal in Madzimbamuto RAD case (1968(2) SA 284 at 429-430, 1968 RLR 203 at 385) with full approval at 65-66:

"The Courts become the pivot on which the constitutional arrangements of the country turn, for the Bench can and must determine the limits of the authority both of the executive and of the Legislature. The consequence follows that the Bench of Judges is the guardian of the constitution…

Judges appointed to office under a written constitution, which provides certain fundamental laws and restricts the manner in which those laws can be altered, must not allow rights under that constitution to be violated. This is a lasting duty for so long as they hold office, whether the violation be by peaceful nor revolutionary means. If, as in South Africa, the Courts were obliged to stand resolutely in the way of what might be termed a legitimate attempt to override the constitution, a fortiori must a court stand in the way of a blatantly illegal attempt to tear up a constitution . If to do this is to be characterized as counter-revolutionary, surely an acquiescence in illegality must equally be revolutionary. Nothing can encourage instability more than for any revolutionary movement to know that, if it succeeds in snatching power, it will be entitled ipso facto to the complete support of the pre-existing judiciary in their judicial capacity. It may be a vain hope that the judgment of a court will deter a usurper, or have the effect of restoring legality, but for a court to be deterred by fear of failure is merely to acquiesce in illegality. It may be that the court's mere presence exercises some check on a usurper who prefers to avoid a confrontation with it. (emphasis added)

I am in full agreement with these views and in particular with the warning that a court ought not to shirk its constitutional duty because it fears that its orders may not be executed by the usurper."

Clearly the judges at the outset of an extra-constitutional occurrence must uphold the Constitution until evidence and argument are placed before them impugning successfully the operation of that Constitution. That is the approach taken by Shameem J. and Madraiwiwi J. in 3 recent cases. Full argument was not addressed to their Lordships on the validity of the 1997 Constitution. However they stated they awaited the decision of the court which had had the advantage of full argument, namely this court, in the present case. Nevertheless, these judges applied the Constitution and in doing so, in my respectful opinion, correctly applied the lawful presumption of continuing legality applying long established law in consonance with their judicial oaths. But in carrying out their proper judicial function without perversity their lordships were roundly criticised in letters to the press by none other than the Attorney-General, a litigant before this court, the high officer of State who conventionally stands as the protector and apologist for the judges.

Gleaned from the recorded cases and from what had happened in Fiji in the early days of the Military takeover the following observations can be made on the role of the judiciary in such crises:

1. Judges should remember their oaths of judicial office to uphold the Constitution. The presumption is that the Constitution remains unimpugned until pronounced otherwise in court.

2. Extra-constitutional occurrences or subversions if not intended to be temporary will not displace the Constitution for some period of time. Judges should continue to uphold the Constitution meanwhile. Even in cases where the doctrine of necessity applies, time will need to pass before validity ab initio can be granted to acts committed under the doctrine.

3. Unless there has been a "Glorious Revolution" to remove an undoubted tyrant, or to end a regime whose record "was one of turmoil" Mokotso (supra) at 167 followed by "clear acceptance, jubilation, and acclaim" for the revolution, the judges should await the filing of cases and production of evidence and arguments for consideration of validity under all other heads of claim see Pakistan Petitions Case (supra) generally.

4. It is not the oath taken or the regime under which an appointment is made that colour a judge's role on legitimacy. A judge is expected to act at all times impartially, fairly, with integrity, and to uphold all the laws of the land, independently of the regime existing at the time of his or her appointment. A judge may be called upon to curb the excesses of a revolutionary regime acting arbitrarily or outside the law.

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