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Zan, Myint --- "The Standing Aside of Australia's Governor General: Some Comparative Comments" [2003] JCULawRw 4; (2003) 10 James Cook University Law Review 71



* Lecturer, School of Law, University of the South Pacific, Emalus Campus, Port Vila, Vanuatu. This article is dedicated to the memory of the late Margot Broderick, a dear friend, who passed away in Sydney, Australia, in April 2003.


The resignation in May 2003 of Dr Peter Hollingworth as the Queen’s representative and Governor-General of Australia extricated the government of Prime Minister John Howard from continued political embarrassment. Though rare, the resignation of a Governor-General of Australia is not unprecedented, having occurred twice previously.[1] What was unprecedented was that, prior to his announcement on 26 May 2003 that he would resign, Dr Hollingworth announced on 11 May 2003 that, for the duration of the period that the Supreme Court of Victoria was seized with the civil suit against him that he raped the late Rosemarie Ann Jarmyn nearly 40 years ago, he would ‘stand aside’ as Governor-General.[2]

The unprecedented action and significance of the Governor-General’s standing-aside could be discussed or at least mentioned (though not as case law since the crisis was not resolved in a court) in future textbooks on Australian constitutional law and political science. This comment will discuss, from a comparative perspective, what might be considered ‘first- time’ constitutional cases of recent years in three other common law jurisdictions. The cases to be discussed were decided in 1999, 2000 and 2001 by the high judicial institutions of the United Kingdom, the United States and Fiji, respectively: three countries that arguably share a ‘common law’ legal heritage.[3]

These cases have — to this author’s knowledge — not been juxtaposed and analysed together even briefly and in context. It is realised that though unprecedented in their own ways the three cases are significantly different, with no apparent connections. In this comment the author will attempt an eclectic extrapolation and brief comparisons and observations about the cases and the constitutional conventions, history and politics of the three countries within which the cases arose. In making these comparisons together with an aspect of Australia’s recent ‘G-G crisis’ the author is aware that the standing aside of the Governor-General of Australia was not resolved judicially through the courts. Still, the standing aside does raise some Australian constitutional issues, if only temporarily and as an anomaly. In this comment an attempt is made to provide snippets or glimpses of the (arguable) ‘first-time’ cases and occurrences which do have varying degrees of constitutional implications and significance in the modern legal history and judicial politics of these countries.


The first unprecedented constitutional case of recent years happened in the ‘mother country’ itself in 1998 and 1999. It is known informally as the Pinochet 2 case.[4] On 25 November 1998, in what was then hailed by some as a ‘landmark House of Lords decision’,[5] a panel of the Judicial Committee of the House of Lords of the United Kingdom decided by a majority of three to two that Senator Augusto Pinochet Ugarte of Chile, as a former Head of State of Chile, was not entitled to immunity from the process of the British courts.[6]

A Spanish judge had requested of the British Home Office the extradition of Pinochet to Spain for the murder and torture of Spanish nationals allegedly carried out under Pinochet’s orders while he was Head of State of Chile. The non-governmental organisation Amnesty International submitted an amicus curiae (‘friend of the Court’) brief to the judicial Committee. Amnesty took the position that Pinochet should not be given any immunity. After the three-to-two decision was given, it was discovered that Lord Hoffman, one of the judges in the majority, had for some time been the unpaid director of a charity trust that was established by Amnesty International mainly for fund-raising purposes. Pinochet’s lawyers soon appealed to a differently composed panel of the Judicial Committee of the House of Lords on the ground that, since Lord Hoffman was a director of a charity trust that was established by Amnesty International and since Lord Hoffman took the position that Amnesty advocated in the amicus curiae brief, there was an appearance of bias in the first Pinochet decision.[7] The second panel of the Judicial Committee of the House of Lords ‘vacated’ (nullified) the first panel’s decision and arranged for a new hearing on the issue of immunity in the Pinochet case. At the time of the second panel vacating the first panel’s decision, statements were made that this had never before happened in the history of the (Judicial or Appellate Committee of the) House of Lords. The second panel’s vacating the decision of the first panel on the grounds that Lord Hoffman’s participation in the first panel tainted its decision was said to be unprecedented.[8] At least until 1966, the Judicial Committee of the House of Lords was bound by its own previous decisions and could not overrule them.[9] The decision to vacate the decision in Pinochet 1 was made by the second panel within three weeks of the first panel’s decision. This cannot be said to be strictly a ‘constitutional’ decision in that Pinochet 2, which vacated Pinochet 1, did not involve the interpretation or application of the principles or conventions of (unwritten) British constitutional law.[10] Yet the unprecedented nature of the second panel vacating the first panel’s decision makes it significant, and the Pinochet 2 case has been mentioned and discussed in administrative law textbooks published since 1998.


Another unprecedented case, from the United States, has given rise to at least seven books in the form of commentaries and critiques. On the night of 12 December 2000 the United States Supreme Court by a majority of five to four in the case of Bush v Gore permanently stopped the Florida recounts of the 2000 US presidential election and by its decision all but handed the presidency by Supreme Court fiat to George W Bush.[11] A few days earlier the Supreme Court — over the strenuous objections of dissenting Justices — stayed the Florida recounts when Bush was leading Gore by only 154 votes (out of more than six million votes cast). This was also the first time in United States legal and political history that the Supreme Court all but elected or anointed a President. In its 227-year history no presidential election has been decided by the Supreme Court — and, for that matter, by the thinnest of margins (the vote of a single Justice). The decision has been critiqued from legal, constitutional, and ethical standpoints.


One of the critiques made of Bush v Gore was that two Justices who were in the majority should have recused themselves from considering the case. First, it was stated that one of Justice Antonin Scalia’s sons worked in the law firm which argued the case on behalf of Bush’s legal team.[12] Dershowitz claims that:

Justice Antonin Scalia has two sons who work in law firms that represented the Republicans in the recent [2000 US Presidential] election case. The high court’s [US Supreme Court] rules permit this so long as the firm deducts from the justice’s children’s compensation the proportion of income directly attributable to appearances before the Supreme Court. This formulation is naïve in the extreme, since firms that win before the high court reap enormous indirect financial benefit in the form of new clients. Congressional hearings should be conducted to hear evidence about this and other potential conflicts, and Congress should enact rules that serve the public interest.13 Secondly, it was also asserted that Justice Clarence Thomas’s wife also had some ties with the ‘Bush camp’ that actively campaigned for the election of Bush. Citing various sources Dershowitz writes that ‘[d]espite her husband’s non-partisan job, she remains “in the thick of the fight”, and always wants to bring the battle to the Democrats”’ and ‘“go the extra mile”’.[14] Gilbert S Merritt of the United States Court of Appeals for the Sixth Circuit was stated to have said that:

The spouse [of Justice Thomas] has obviously got a substantial interest that could be affected by the outcome … he [Merritt] urged Justice Thomas to remove himself from the case in order to prevent any violation of a federal law — he cited Section 455 of Title 28 of the United States Code, ‘Disqualifications of Justices, Judges or Magistrates’ — that requires court officers to excuse themselves if a spouse has an interest that could be substantially affected by the outcome of the proceeding.[15]

It should be emphasised here that even Dershowitz, who is very critical of the Bush v Gore decision, does not use the phrase ‘appearance of bias’ when he raises the issue that Scalia and Thomas should have recused themselves from hearing the case. He uses the phrase ‘conflict of interest’. Hence it should be made clear that this author is not inferring here that the participation of Justices Scalia and Thomas in the Bush v Gore decision is the legal equivalent of Lord Hoffman’s participation in the Pinochet 1 case which was subsequently found to be tainted with the appearance of bias. The crucial difference is that Lord Hoffman himself was the unpaid director of a charity trust that was established by Amnesty International. In contrast, none of the Justices in the Bush v Gore case had any such formal and direct link with George W Bush that would fully and legalistically justify the designation of the ‘appearance of bias’. If such a direct, formal link could have been established between any of the Justices in the majority in the Bush v Gore case, à la Lord Hoffman in the Pinochet 1 case, then a more serious allegation or perception of ‘appearance of bias’ in the context of administrative law, rather than the more amorphous conflict of interest claim, could perhaps have been made.

However, even on that scenario of ‘appearance of bias’, there would have been no chance of nullifying Bush v Gore. Even on a purely theoretical and hypothetical level there would be no possibility that Bush v Gore would or could have been vacated à la Pinochet 1. Apart from other factors, this theoretical and practical impossibility is due to differences in the nature of the structure and composition of the Judicial Committee of the House of Lords of the United Kingdom and of the United States Supreme Court. Pinochet’s lawyers, who felt their client’s case was adversely affected by the participation of Lord Hoffman, were able to ask for a reconsideration of the Pinochet 1 decision by a different — and equal in status — judicial panel which eventually did overturn Pinochet 1.

There are nine Justices in the United States Supreme Court and usually — unless a Justice recuses himself[16] or herself, or a Justice’s position falls vacant due to retirement or death and the vacant position is not yet filled — cases before the US Supreme Court are heard by all the nine Justices. In contrast there are 12 Law Lords (Lords of Appeal in Ordinary) in the House of Lords and normally a committee of five, but in cases of ‘exceptional difficulty or importance’ seven Law Lords hear appeals from the lower courts.[17] In the case of Pinochet, he was able to appeal, or ask for a review or reconsideration by another panel, since another judicial panel of equal status was available. In striking contrast, those who might have wanted to raise the issue of ‘appearance of bias’ in Bush v Gore had no other, different, judicial panel before which to make or plead their cases since — to use an informal American expression — the buck irrevocably and irremediably stops with the United States Supreme Court.[18]

Unlike the Pinochet cases, the US Supreme Court’s decision in Bush v Gore did involve the interpretation and application — many critics of the Supreme Court’s decision would say deliberate and perhaps even fraudulent[19] misinterpretation and misapplication — of aspects of United States constitutional law. Both Pinochet 2 and Bush v Gore were unprecedented in their own different ways in the history of the highest judicial institutions of the United Kingdom and the United States. Judging from the volumes of books, treatises and articles that have emerged from Bush v Gore — a significant majority of them very critical — the latter is by far the more controversial, as well as unprecedented, decision.


The last case is also arguably unprecedented in (British) Commonwealth jurisprudence. The judgment in Fiji v Prasad [20] was delivered by the Court of Appeal of Fiji on 1 March 2001. The Court ruled, in effect, that the government which took over as a result of the Speight coup in May 2000 was unconstitutional as per the 1997 Constitution of Fiji. (The government of Mahendra Chahdhury, the majority of whose members were held hostage for nearly two months when George Speight and his followers seized the Parliament building on 19 May 2000, was dismissed and was replaced by a government extra-constitutionally appointed by the Commander of the Fiji Armed Forces.) Observers have hailed the ruling as another first: the first ruling among nations of the (British) Commonwealth, if not in the common law world, whereby a court has stated that the ruling (current) government was unconstitutional.[21] There had been previous cases in Commonwealth countries where courts had ruled that decrees and orders made by a previous government which took power by force were unconstitutional (illegal) or even that the governments themselves — no longer in power at the time the decisions were given — were unconstitutional. In contrast to these cases, emanating from countries as diverse as Grenada[22] , Uganda[23] and Pakistan,[24] it has been argued that the Prasad case was the first that states that a current (presiding) government was unconstitutional. This is significant in that it was a domestic court rather than a foreign court which declared that a regime that came into power through a military takeover was unconstitutional and illegal.[25] The peculiar circumstances surrounding Fiji’s political and legal imbroglio of the year 2000 could have facilitated the Court of Appeal of Fiji to make this bold ruling, though the aftermath — in reality and politically — has been a mixed outcome. Still, as the first case of this kind, it is a landmark ruling in the annals of Commonwealth and common law jurisprudence.



What does the Prasad case have to do with the ‘unprecedented’ standing aside of the Governor-General of Australia? Not much beyond the fact that both the ruling in the Prasad case and the unprecedented anomaly of the Governor-General’s ‘standing aside’ occurred for the first time in Commonwealth countries which have a common though varied British colonial legacy in political and legal matters. Prasad was case law: a decision by a court. The resignation of Peter Hollingworth has forestalled any case law or court ruling in the context of Australian constitutional law regarding the anomalous issue of a Governor-General’s standing aside. In this regard one could add here that the saga of the Governor-General has brought to the fore a possible anomaly in the Constitution of the Commonwealth of Australia. Though the Governor-General’s position is that of ‘the Queen’s Representative in Australia’ and is arguably not necessarily that of the Head of State of Australia,[26] he[27] is the ‘highest’ person in the Australian constitutional or governmental hierarchy who also happens to reside in Australia. There are no provisions in the current Australian Constitution that stipulate who would take over the duties of the Governor-General in the event of inability or ‘standing aside’ and whether the Governor-General could or should stand aside in cases which have similarities to the Hollingworth imbroglio. One might note that, in contrast, Amendment XXV of the Constitution of the United States of America laid down detailed stipulations and appointment procedures as to who shall take over in case of removal, death or resignation of the President or the Vice President of the United States of America.

Since Federation in Australia in 1901, Australia has had only one Constitution, which originated in an Act of the British Parliament. In contrast, Fiji has had, in less than three decades of independence, three Constitutions: those of 1970, 1990 and 1997, all more or less based on the ‘Westminster’ parliamentary system which is not necessarily similar but comparable to that of Australia.[28] Does that mean that the parliamentary form of government is more suitable to a ‘mature’, ‘Western’ or developed country like Australia than to a developing one like Fiji?[29] A few cultural (and political) relativists may wish to argue that imposed political and constitutional systems do not work. The ‘imposition’ argument can be and has been made in the context of Australian constitutional law too. The argument was made especially before the coming into force of the Australia Act 1986, and even after 1986 the formal stipulation was that ‘its Constitution was still in the form of an imperial Statute’.[30]

Since Dr Peter Hollingworth’s resignation was effective by the end of May 2003, his standing aside was temporary: it lasted no more than two weeks. A constitutional query — perhaps even a constitutional anomaly — could have developed if the civil suit against the Governor-General had continued in the Victorian Supreme Court and if the ‘standing aside’ of the Governor-General had continued for months. What would then have been the role of the (temporary) ‘Administrator’, Sir Guy Green? What if the Administrator had been called upon to adjudicate a major dispute between the government and the opposition when the Governor-General’s position was in a legal limbo?

Another comparison can also be made here on the issue of the Queen’s Representative in Australia being sued in an Australian Court. The writer is unaware of any constitutional impediment that would prevent a citizen of Australia from suing the Governor-General. In contrast, prior to the 1993 constitutional amendments, the Federal Constitution of Malaysia prohibited any criminal or civil suits to be lodged against the King (Yang di-Pertuan Agong) of Malaysia and the Sultans of the nine Malay states.[31] Even after the 1993 Constitutional amendments, the King of Malaysia and the Sultans of the Malay States can be sued only with written permission from the Attorney-General, and they can only be tried in special courts.[32]

In the United States also there has been a civil suit against a sitting (current) President: the then President Bill Clinton was sued by Paula Jones for alleged sexual harassment while Clinton was Governor of Arkansas. Clinton’s claim that while he was President the suit against him should be deferred was unanimously rejected by the United States Supreme Court.[33] As Clinton then settled the case (without admitting any liability) while he was still President, the spectacle of a court case — albeit a civil suit — against a sitting President was avoided. The civil suit for alleged rape against then Governor-General Peter Hollingworth in the Supreme Court of Victoria collapsed when the plaintiff died and her personal representative withdrew the suit. Before the withdrawal of the suit and during the proceedings before the Court, Peter Hollingworth did not assert the claim that he should not be sued while he was Governor-General There are no explicit provisions in the Constitution of the Commonwealth of Australia to provide immunity to the Governor-General. There is also a dearth of case law in Australia on this matter. Hence, in Australian constitutional law and conventions, the contents and contours of the immunity — should there be any — of the Governor-General of Australia is not delineated or defined. In contrast, Head of State ‘immunity’ has been the subject of case law as can be seen in the decisions of the United States Supreme Court that were cited and discussed in Clinton v Jones. Certainly, in the Australian Constitution there is no automatic immunity for the Governor-General à la the provisions of the Malaysian Constitution concerning the absolute or limited immunity of the Head of State (the King) of Malaysia and the Sultans of the Malay states.[34] There appear to be no constitutional impediments for suing either the Governor-General of Australia or the President of the United States for their private actions.

The resignation of Peter Hollingworth may have precluded these hypothetical scenarios from materialising. Yet what is now known as the Governor-General crisis has brought to the fore legal and constitutional issues regarding the appointment process and role of the Governor-General in Australia.


The recent Australian Governor-General crisis will not develop new trends or landmarks in Australian constitutional law as Pinochet, Bush and Prasad cases did in British, American and Fijian jurisprudence in the years 1998–1999, 2000 and 2001 respectively.

Nevertheless the initial standing aside of the Governor-General as well as the unique cases which have been juxtaposed and briefly discussed — at the risk of being regarded as a futile exercise comparing ‘apples and oranges’ by fastidious legalists with a penchant for compartmentalisation[35]

— perhaps indicate that what has been deferentially termed as ‘the law’, like any other human institution, is neither sufficiently nor adequately always pre-designed for all contingencies.

It is also realised here that all the three ‘constitutional’ cases from the United Kingdom, the United States and Fiji and one incident (the standing aside of the Governor-General) in Australia have legal as well as political overtones. As far as certain legal issues are concerned the author believes that the issue of appearance of bias and possible conflict of interest in the Pinochet 2 and Bush v Gore cases can somehow be linked and analogised as the author has attempted to do in this comment. In the case of Fiji and Australia the ‘first-time’ nature of the Court decision in Attorney-General of Fiji v Prasad and the first-time nature of the standing aside of the Governor-General were analogised with a brief foray into the imposed nature – or otherwise — of Australia’s Constitution and Fiji’s (three) Constitutions. A further observation as to the different concepts of ‘immunity’ in the Malaysian Constitution and one United States case involving the then serving President of the United States have also been juxtaposed and analysed vis-à-vis the rape allegations and subsequently withdrawn civil suits against then Governor-General Peter Hollingworth.

The unprecedented constitutional cases in various jurisdictions would indicate that there will always be a ‘first time’ not only in constitutional law and legal and political conventions but also — to quote from the Bard — ‘in the affairs of men’[36] and of nations.

[1] For information about the twenty-three Governors-General of Australia see generally <>

(accessed 1 June 2003).

[2] Annie Jarmyn, a mother of three, lodged a civil suit for damages against then Governor-General (G-G) Peter Hollingworth in late 2002 alleging that he had raped her in a summer youth camp in late 1965 or early 1966. Mrs Jarmyn committed suicide in late April 2003 and her family later withdrew the suit. The G-G stated that he would stand aside during the court case. Calls for his resignation were made months before the civil suit was lodged or the suppression order concerning the civil suit was revealed to the public. They were based on the grounds that while Archbishop of Brisbane he had allowed a priest who had been accused of child abuse to retain his post.

[3] The common law legal system has its roots in the United Kingdom, and all the countries that practised or adopted the British system were either colonised or settled by the British during the past few centuries. ‘Common law’ is used here in the sense of the ‘English style legal system based on the adversarial system and on case law principles’ (as in contrast to the civil law legal systems) ‘as practised in the United Kingdom and those countries that inherited that system’. It does not mean here ‘laws developed by courts on the basis of traditional principles created by parliamentary legislation’, nor ‘common law as distinct from equity’. For these three types or definitions of common law see Clive Turner, Australian Commercial Law (1990) 18.

[4] R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (no 2) [1999] UKHL 1; [1999] 1 All ER 577 (House of Lords) (‘Pinochet 2’).

[5] Eve Baker, ‘No escape: extradition proceedings against Pinochet will continue’, Los Angeles Daily Journal, 15 November 1998, as reproduced in (accessed 17 November 2003).

[6] R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (no 1) [1998] UKHL 41; [1998] 4 All ER 897 (House of Lords) (‘Pinochet 1’).

[7] Re Pinochet [1999] UKHL 1; [1999] 1 All ER 577 (‘Pinochet 2’).

[8] There were contemporaneous newspaper reports to the effect that the application by Pinochet’s lawyers to reconsider a decision of an Appellate Committee of the House of Lords was unprecedented. The author emailed the Archives and Information Service of the House of Lords on 1 June 2003 requesting them to verify whether or not the vacating of the Pinochet I case by a different panel of the Law Lords was unprecedented in the sense indicated above. On 31 July 2003 Andrew Mackersie emailed back: ‘In re Pinochet was not the first occasion on which the House of Lords had vacated one of its orders on a particular appeal, but such orders are very rare and a full appeal had not been vacated for several decades. Pinochet was however the first time that the House had been accused of the appearance of bias and vacated one of its orders for that reason’.

[9] Die Martis 26 July 1966 by the Lord Chancellor, Lord Gardiner, wherein the Lord Chancellor in a statement to the House of Lords mentioned that ‘[t]heir Lordships recognise that too rigid adherence to precedent may lead to injustice and also unduly restrict the proper development of the law’. The Lord Chancellor further stated that their Lordships ‘propose therefore to modify their present practice and, while treating the former decisions of this House as binding, [they would no longer be constrained] to depart from a previous practice when it appears right to do so’: House of Lords: Practice Directions and Orders Applicable to Civil Appeals 33. I would like to thank Andrew Mackersie from the House of Lords Office for sending me this booklet electronically.

[10] The United Kingdom of Great Britain and Northern Ireland is one of few countries without a formal written constitution in a single document. Accretions of conventions, practices and legislation over centuries constitute ‘British constitutional law’. The vacating of the Pinochet 1 decision by a different Appellate Committee of the Law Lords in Pinochet 2 would not perhaps strictly fall within the category of a ‘(British) constitutional decision’ in that the second Appellate Committee based its decision on an offshoot of a cardinal principle of administrative law, namely that ‘no man shall be a judge in his own cause’. Still, this could arguably be considered a ‘constitutional decision’ in that it relates to the decision-making processes and case law of the highest echelon of the British judiciary and specifically to its conventions.

[11] Bush v Gore 121 S Ct 636 (2000). The events concerning the 2000 United States presidential election, and the Florida courts and the United States Supreme Court’s role in resolving the outcome of that election, are amply documented in numerous books, articles and websites. For the purposes of this comment most of the factual information and analysis regarding the 2000 election and the Bush v Gore United States Supreme Court decision is taken from Alan M Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (2001).

[12] The essential part of the ruling of Bush v Gore was decided by a five to four majority. The majority Justices were Chief Justice William Rehnquist, Associate Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas.

[13] Dershowitz, above n 11, 181.

[14] Ibid 249, n 92, citing Jerry Toobin, ‘The Burden of Clarence Thomas’, New Yorker, 27 September 1993.

[15] Ibid 249–50, n 93, citing Christopher Marquis, ‘Challenging a Justice’, New York Times, 12 December 2000.

[16] For example, in the case of United States v Richard Nixon, 418 U.S. 638 (decided on 24 July 1974), where it was stated that ‘REHNQUIST, J [as he then was; William Rehnquist has been Chief Justice of the United States since 26 September 1986] took no part in the consideration or decision of the cases’.

[17] m#judicial-procedure (accessed 3 June 2003). The House of Lords website lists (as of 26 April 2003) 12 ‘Lords of Appeal in Ordinary (Law Lords’) and 13 ‘Other Lords of Appeal’ who hold or have held high judicial office, who occasionally sit on appeals: (accessed 3 June 2003). Hence Pinochet 2 was heard by a totally different panel from that of Pinochet 1. The Pinochet 3 case which reconsidered Pinochet’s immunity, R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (no 3)

[1999] UKHL 17; [1999] 2 All ER 97 (House of Lords), was heard by seven Law Lords. None of the Law Lords who considered the issue in Pinochet 1 participated in the hearing, deliberation and handing down of the judgments in Pinochet 3 though some Law Lords who decided Pinochet 2 (which vacated Pinochet 1) also were in the panel which decided Pinochet 3.

[18] The author made this point (the buck stops with the United States Supreme Court in relation to the issue of a Justice’s recusal from deciding a case when possible conflicts of interest or appearance of bias are raised) when writing this comment originally in November 2003. By mid-March 2004, a new illustration of the point interestingly but unsurprisingly involves Justice Antonin Scalia again. Justice Scalia has been asked by some of the affected and interested parties in the case that he should recuse himself from hearing and deciding a case involving US Vice-President Dick Cheney. A commenator writes:

In the case of In Re Richard B. Cheney Vice President Dick Cheney sought Supreme Court review of a lower court decision, unfavourable to him in relation to his activities in the “Energy Task Force” established by the Bush administration. While the Court was considering whether to grant the petition, Scalia dined with Cheney (and Defense Secretary Donald Rumsfeld) at a posh spot out on Maryland's Eastern Shore. On December 15, 2003, the Supreme Court granted review in the Cheney case. Then, three weeks later, Scalia went on a very exclusive, 9-person, 5-day duck hunting trip with Cheney to a remote part of southern Louisiana. Both Scalia and Cheney were guests of the head of Diamond Services Corp, an oil services company, which ferried Scalia to the hunting grounds on its Gulfstream jet’ — Edward Lazarus, ‘Why Justice Scalia is Wrong to Refuse to Recuse himself from a Case Involving Dick Cheney and his Energy Task Force’, (accessed 16 March 2004).

Many newspaper editorials (e.g. ‘Justice Scalia and Mr Cheney’, New York Times, 28 February 2004,, accessed 28 February 2004) had urged Justice Scalia to recuse himself from hearing the case. One of the parties to the case, the Sierra Club, had also petitioned the Supreme Court, and the Supreme Court said it had referred to Justice Antonin Scalia a request that he remove himself from a case about Vice President Dick Cheney's energy task force because their recent duck-hunting trip raised questions about his impartiality —‘Justice Scalia gets Cheney Case Refusal Request’, (accessed 16 March 2004). The Supreme Court can only ‘refer’ the recusal request and cannot mandate Scalia’s or any other Justice’s recusal. As of mid-March 2004, Scalia has adamantly and consistently refused to recuse himself from hearing the case and it seems unlikely that he would do so. Should the case be heard by Scalia and should the decision in favour of Cheney be given in the case of In Re Richard B. Cheney , especially by a five to four decision, the author submits that the decision would be tainted not only with ‘conflict of interest’ but also arguably with the ‘appearance of bias’ à la Pinochet 1 . This shows that in the context and milieu of the United States Supreme Court, ‘remedies’ would be forthcoming only when the moral conscience or basic decency of Justices prompts them to recuse themselves from hearing particular cases. 19 The following is a sample of one of the stronger critiques made against the majority ruling in Bush v Gore. Vincent Bugliosi, on a Light Party (formerly the Human Ecology Party) web page entitled None Dare Call It Treason, writes:

No technical true crime was committed here by the five conservative Justices [in Bush v Gore] only because no Congress ever dreamed of enacting a statute making it a crime to steal a presidential election. It is so far-out and unbelievable that there was no law, then, for these five Justices to have violated by their theft of the election. But if what these Justices did was not ‘morally reprehensible’ and a ‘wrong against society,’ what would be? In terms, then, of natural law and justice—the protoplasm of all eventual laws on the books—these five Justices are criminals in every true sense of the word, and in a fair and just world belong behind prison bars as much as any American white-collar criminal who ever lived.

<> (accessed 4 November 2003).

[20] Fiji v Prasad (Unreported Fiji Court of Appeal) Casey J, Presiding. The judgment can be accessed at _cases/Volume _Q-R/Republic_v_Prasad.html (accessed 8 July 2003).

[21] See for example George Williams, ‘The Case that Stopped the Coup? The Rule of Law and Constitutionalism in Fiji’ (2001) 1(1) Oxford University Commonwealth Law Journal 73, 74. See also George Williams, ‘The Republic of Fiji v Prasad: Introduction’ [2001] MelbJlIntLaw 5; (2001) 2(1) Melbourne Journal of International Law 144, 147. For a response to the latter see Michael Head, ‘A Victory for Democracy? An Alternative Assessment of Republic of Fiji v Prasad’ [2001] MelbJlIntLaw 20; (2001) 2(2) Melbourne Journal of International Law 535.

[22] See for example Mitchell v Director of Public Prosecutions [1986] LRC (Const) 35.

[23] See for example Uganda v Commissioner of Prisons; Ex parte Matovu [1966] EA 514.

[24] See for example The State v Dosso [1985] 2 PSCR 180.

[25] In Madzimbamuto v Lardner-Burke [1968] UKPC 2; [1969] 1 AC 645 the Privy Council (on appeal from Southern Rhodesia) did rule that Ian Smith’s regime, set up under his Unilateral Declaration of Independence (UDI) of 11 November 1965, was illegal. However, at least geographically speaking, the Privy Council was a foreign ‘court’ or judicial committee and not a domestic court which ruled that a current government was unconstitutional or illegal.

[26] The formal Head of State of Australia would be (since February 1952) Queen Elizabeth II, Queen of the United Kingdom of Great Britain and Northern Ireland and of Australia — though perhaps a few may dispute this description. One recalls that in the years preceding the 6 November 1999 ‘Republic’ referendum, former Australian Prime Minister Paul Keating used to ask whether Australians want an Australian as a Head of State. See The Republic Debate: Report of the Republic Advisory Committee Vol 1 (1993).

[27] From the time of Federation in the year 1901 to the most recent appointment of Australia’s 24th Governor-General, Major-General Michael Jeffery, in the year 2003, all Governors-General have been males.

[28] This comment is not intended to even perfunctorily attempt a comparison of the Constitution of Commonwealth of Australia and Fiji’s 1997 Constitution or indeed the two Constitutions that preceded it. On a very generic basis both Australia and Fiji being former colonies of Britain do ‘inherit’ in varying degrees the British legal and constitutional heritage. Both have a Westminster based ‘Parliamentary’ form of government rather than a Presidential system. Though the Head of State of Fiji is the President — unlike Australia where the Head of State is either Queen Elizabeth II or, in some minority view, the Governor-General of Australia — Fiji’s system, like Australia’s, can still be classified as ‘Parliamentary’ or ‘Westminster-based’ rather than a Presidential system of government.

[29] See for example Brij V Lal, ‘Debating Fiji’s Democratic Future’ at dialogue_debating_Fijis_democratic_future.pdf (accessed 17 November 2003).

[30] Tony Blackshield and George Williams, Australian Constitutional Law and Theory Commentary and Materials (1998) 157. Blackshield and Williams refer to case law indicating why, despite its foreign origin, the Australian Constitution is binding on the Australian people: 157–8.

[31] See for example the Federal Constitution of Malaysia Article 31(2) (pre-1993 Amendments).

[32] See ibid Article 182 clauses 1, 2 and 4 (post-1993 Amendments).

[33] Clinton v Jones [1997] USSC 42; 520 US 681 (1997).

[34] For this author’s comparison of Head of State immunity — or lack thereof — in the constitutional law and practice of Malaysia and the United States see Myint Zan, ‘The Three Nixon Cases and their Parallels in Malaysia’ (2001) 13(1) St Thomas Law Review 743, 767–82. Though nothing is specifically written (about presidential immunity from private suits for private behaviour) in the United States Constitution, then-President Clinton in the Clinton v Jones case unsuccessfully and in effect claimed (temporary) ‘immunity’ while he was President. Perhaps, if the now withdrawn claim against the then Governor-General Peter Hollingworth had proceeded, some Australian constitutional issues might have arisen in the course of the trial.

[35] In the words of Margaret Davies, Asking the Law Question (1994) 88:

The exclusion and effective suppression of matters other than those which are determined to be “legal” cannot be seen to be politically neutral … separation of laws from non-law is a political separation because it sets up an authoritarian notion of jurisprudential correctness. The exclusion of politics is as political as its inclusion.

[36] The lines said by Brutus in William Shakespeare’s Julius Caesar, Act IV, Scene 3 are:

There is a tide in the affairs of men Which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life Is bound in shallows and in miseries.

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