ATTORNEY GENERAL OF THE REPUBLIC OF FIJI ISLANDS
Third Respondent
Coram: Eichelbaum JA, Presiding Judge
JA
Handley, JA
Smellie, JA
Keith, JA
Hearing: 12 and 13 February 2002, Suva
Counsel: Messrs. Gavan Griffith Q.C., Geoffrey Kenneth, Gyaneshwar Prasad
Lala, Neel Shivam and Varun Shandil for the Plaintiff
Messrs. Stephen Gageler, SC, William Calanchini, Sainivalati Navoti and Ms
Nehla Baswaiya for the first and third Respondents
Date of Judgment: 15 February 2002
ass=MsoNormal align=cenn=center style="text-align: center; text-autospace: none; margin: 1 0cm"> JUDGMENT OF THE COURT
Introduction
Under s 99(1) of the Constitution the President appoints and dismisses Ministers on the advice of the Prime Minister. In September 2001, following his appointment the Prime Minister, the first respondent, wrote to Mr.
Chaudhry, the plaintiff, as leader of the Fiji Labour Party (FLP) inviting that party to be represented in the Cabinet. Mr. Chaudhry
replied purporting to accept the invitation. However the Prime Minister tendered to the second respondent, the President, certain
advice which led to the appointment of persons as Ministers. The Prime Minister did not recommend the appointment of any persons
from the FLP nor was any such person appointed. By an originating summons issued in the High Court on 25 September 2001, the plaintiff
sought orders, which would declare and give effect to the claimed right of the FLP under the Constitution to be represented in the
Cabinet. Before this Court is a Case Stated by the High Court, dated 29 November 2001, posing a series of questions of law for our
decision. This is not an appeal to this Court. The proceedings are in the High Court, which will make the final decisions. Our function
is to answer the questions of law, and we will address these in turn, but we first refer to some general considerations.
The first and third respondents opposed the declarations and orders sought by the plaintiff, while the second respondent (the President)
properly advised that he would abide by the decision of the Court and took no part in the arguments. Reference in this judgment to the respondents’ submissions or arguments is a reference to those advanced by the first and third respondents.
The decision of this Court relates, and relates only, to questions of law arising under the Constitution, which of course is the Supreme
law of the Republourts asked to interpret thet the Constitution deal with those issues as a matter of law. Courts do not make Constitutions, that is the function of Parliaments. As is well known the provisions with which
we are concerned were enacted in 1997 after full consideration of all the issues by the Reeves Commission, followed by a further
careful consideration by the Joint Parliamentary Select Committee (JPSC), debate in both Houses of Parliament, and approval by the
Great Council of Chiefs.
The Constitution must be applied to current events and personalities, but is unaffected by them. The meaning of the Constitution in
genera of s 99 in particular does does not vary depending on the opinions or personalities of the politicians of the day. The duties
imposed and the rights conferred by s 99 are the same whoever happens to be the Prime Minister or the leader of a party entitled
to receive an invitation under s 99(5). The questions before the Court arise in the context of specific correspondence between particular
individuals, the leaders of their respective parties; but it would make no difference if their roles were reversed, or if different
parties or personalities were involved. The Constitution speaks and applies impersonally. The Court has no authority to bend or amend
the text.
We turn to the main relevant provisions of the Constitution. Chapter 7 deals with Executive nment, and Part 3 of that Chapter contains
the specific provisions relating to Cabinet Gove Government. Governments must have the confidence of the House of Representatives
(s 97). The President appoints as Prime Minister the member of the House who, in the President’s opinion, can form a government that has the confidence of the House (s 98). Section 99 needs to be set out in full. It provides:
Appointment of other Ministers
99-(1) The President appoints and dismisses other Mini on the advice of the Prime Minister.
(2) To be eligible for appointment, a Minister must be a member of the House of Representatives or the Senate.
(3) The Prime Minister must establish a multiparty Cabinet in the way set out in this section comprising such number of Ministers as he or she determines.
(4) Subject to this section, the composition of the Cabinet should, as far as possible, fairly representparties represented in the House of Representatives.
(5) In establishing the Cabinet, the Prime Minister must invite all parties whose membership in the House of Representatives comprises
at least 10% of the total membership of the House to be represented in the Cabinet in proportion to their numbers in the House.
(6) If the Prime Minister selects for appointment to the Cabinet a person from a party whose membership in the House of Representatives
is than 10% of the total meml membership of the House, that selection is deemed, for the purposes of this section, to be a selection of a person from the Prime Minister’s own party.
(7) If a party declines an invitation from the Prime Minister to be represented in the Cabinet, the Prime Minister must allocate the Cabinet positions to which that party would have been entitled amongst the other parties (including the Prime Minister’s party) in proportion, as far as possible, to their respective entitlements under subsection (5).
(8) If all parties (apart from the Prime Minister’s party and the party (if any) with which it is in coalition) decline an invitation from the Prime Minister to be represented in the Cabinet, the Prime Minister may look to his or her own party or coalition of parties to fill the places in the Cabinet.
(9) In selecting persons from parties other than his or her own party for appointmenMinisters the Prime Minister must consult with
the leaders of those parties.
Sections 3, 6 and 7 of the Constitution lay down certain principles which are relevant to its interpretation, Under s 3(a), in the
interpretation of a provision of the Constitution, the Court must prefer a construction that would promote the purpose or object
underlying the provision, taking into account the spirit of the Constitution as a whole. Section 6, described as the “Compact” sets
out a number of principles for the conduct of government, within the framework of the Constitution and other laws. We will refer
to these in more detail, but in brief, s 6(h) provides that in the formation of a government, full account is to be taken of the
interests of all communities, s 6 (i) states that to the extent that the interests of different communities are seen to conflict,
all the interested parties should negotiate in good faith in an endeavour to reach an agreement, and s 6 (1) refers to the equitable
sharing of power amongst all communities.
In 1999 by the procedure provided by s 123 of the Constitution, the then President referred a number of questions as to the effect of provisio
the Constitution to the Suhe Supreme Court. While, directly, the questions related to the composition of the Senate, the section
of the Constitution dealing with the appointment of the Senate (s 64) refers to and draws on s 99. Thus the Opinion of the Supreme Court answering the President’s questions (The President of the Republic of Fiji Islands v Kubuabola & ors, Misc. 1/1999, 3 September 1999) had to deal with aspects of the interpretation of s 99 and is relevant to some of the matters now before this Court. It is
convenient to describe the Opinion as the 1999 Supreme Court Opinion. As the Supreme Court pointed out, the opinion of that Court pronounced in response to a reference by the President is necessarily authoritative as the true interpretation
of the law and is binding on the President, the Government, the Parliament, the Courts (including of Course this Court), the Great
Council of chief and the people of Fiji generally. At page 6 of its Opinion the Court said:
....a key concept embodied i Constitution is power sharing. The questions referred to this Court are essentiallyially concerned with how this concept operates in relation to the Senate and Cabinet....
Then at page 8, under the heading The True Interpretation of the Rights regarding Senate Appointments the Csaid:
A central purpose of the 1997 Constitution is the sharing of power. The Republic of the Fill Islands is declared in the course of the preamble to be a multi-cultural society........ political power is to be shared equitably amongst all communities: section 6(/)(a) By section 99(3) the Cabinet is to be multi-party, Sharing of power means limitations of power. This concept of sharing permeates sections 64 and 99. For the purpose of determining the questions raised by the present reference, it must be given particular weight in resolving any ambiguity or deciding which of a number of possible interpretations must be adopted.
After quoting s 3(a), to which we have already referred, the Court continued.
it follows that there is a distribution of political power quite different from that which may be familiar under a traditional Westminster pattern. In a traditional Westminster, - style democracy a Prime Minister who enjoys the support of the lower House can normally establish a Cabinet as he or she pleases. That is not the position in the Fiji Islands. Political power is divided among a number of groups, persons and parties; the share of each is in some way limited. (9)
Plaintiff’s submissions
Mr. Griffith QC centred his argument upon s 99 of the Constitution and in particular Ss (3) ) inclusive. That group of subsections,
counsel submitted, imposes a regime of multi-party arty government. The Prime Minister, it was argued, is not given a choice and
an invitation to join the Cabinet must be issued to all parties which meet the 10% threshold. Furthermore ss (5) does not envisage
invitations hedged about with conditions. It follows that within Cabinet there may be groups with opposing views.
In support of his argument counsel for the plaintiff relied first upon the text of s 99 I it secondly upon the Constitutional history
which lay behind the section, and thirdly upon thon the Korolevu Declaration which was advanced as a contemporary document recording
the deliberations of the founding fathers of the Constitution coming to grips with its practical application. Finally the correspondence
between the Prime Minister and the leader of the FLP was called in aid. All these matters are referred to elsewhere in this judgment.
As to the effect of the Prime Minister’s invitation and the correspondence it prompted, Mr. Griffith advanced alternative arguments.
First he contended that the Prime Minister’s letter was, as it expressly described itself to be, an invitation pursuant to s 99(5),
while the plaintiff’s response was a clear acceptance. Alternatively Counsel argued if the invitation was conditional, then it failed
to comply with s 99(5), the result being there had been no valid invitation. Either way, however, it was submitted the Constitution
had been breached.
The consequences of the failure to observe the requirements of the Constitution were then examined. Stating there was no desire to
“rake over thls of the past,” counsel foel for the plaintiff said that while the plaintiff was entitled to the mandatory orders sought,
he would be content with declarations which vindicated his position and ensured that the Constitution would be observed in the future.
Appropriately, no criticism was made of the President. He had acted as required, on the advice of the Prime Minister. Neless the
point was made that if the advice given was invalinvalid because the Constitution had not been observed, the whole process was thereby
flawed.
ass=MsoNormal style="tee="text-autospace: none; margin: 1 0cm">It followed from the above submissions that the plaintiff urged the
Court to indicate clearly by ecision and the answers it provides on the Case Stated that that the FLP appointments to the Cabinet
should now be made without further delay.
Replying to Mr. Gageler SC’s arguments for the respondents, Counsel submitted that reliance on the traditioestminster model of parliamentary
government was misplaced.aced. Section 99, he said, was a deliberate departure introduced to promote multi-party government, and
the respondents’ contention that s 99 ought to be interpreted in terms of what would be workable under the traditional model should
be rejected.
Addressing the respondents’ reliance on the Reeves Report, Counsel subd that the parliamentary history showed quite clearly a fundamental
departure from the Repo Report’s recommendations. Parliament had adopted unanimously and without debate s 99(3) - (9) inclusive as
the preferred mechanism for forcing co-operation as part of the process of making multi-party government work.
First and Third Respondents’ Submissions
Mr. Gageler for the respondents submitted that the question at the heart of the case relates not to the duty of the Prime Minister
to establish a multi-party Cabinet but to the nature of the multi-party Cabinet he has to establish. The invitation under s 99(5)
is the mandatory first step in what must be a bona fide attempt to find common ground between the parties involved. If the invitation
results in sufficient agreement to establish that, a multiparty government will result but the respondents submitted that, if it
falls, there is no obligation on the Prime Minister to include that party in his Cabinet. Subsection (3) places a duty on the Prime
Minister to establish a multi-party Cabinet but the provision in ss (4) that the composition of that Cabinet must, as far as possible,
fairly represent the parties represented in the House clearly envisages the possibility that the formation of such a Cabinet may not be possible.
The foundation of the respondents’ argument lies in their contention that this is not a departure from the Westmi model but an addition
to it. Read in the context of the Wehe Westminster system, s 99 must be based on agreement between the parties that make up the Cabinet.
The framework within which the government is formed is set out in Chapter 7 of the Constitution. Part 3 is headed “Cabinet Government”.
If that Part is read as a whole, the respondents contended it is clear the Cabinet must consist of Ministers who have reached some
consensus in their policies because the political reality of Part 3 is that there can only be Cabinet government if the parties commanding
a majority of the House have a willingness to work together.
The respondents pointed out that the consensual nature of Cabinet government under section 99 is reinforced by other provisionsart
3. Section 101 establisablishes the requirement of collective responsibility. The consequences are emphasised by the terms of the
oath of office required by section 101, which precludes the disclosure in any way of the business or proceedings of the Cabinet.
Similarly sections 107 and 108 require the Government to have the confidence of the House. These are fundamental requirements of
the Westminster system of government in which the members of Cabinet are sufficiently in agreement to be able to support the decisions
of Cabinet on the floor of the House. In turn, those decisions must be acceptable to the majority of the members of the House.
In the respondents’ submission, the principles articulated in the Compact, particularly in paragraphs (g), (d (1), clearly support
the interpretation of section 99 as 9 as envisaging a Cabinet on the Westminster model the members of which are in general accord.
The proposal of the JPSC for Cabinet government replaced the recommendations of the Reeves Commi with the structure which, as later
amended, found expressiression in section 99. The respondents pointed to the difference between the draft Bill (at that time clause
98) which placed an obligation oh the Prime Minister to ensure all parties qualifying for membership of Cabinet were represented
in proportion to their numbers, and the final form of s 99(5) which only required him to invite in good faith those parties entitled
to be represented. This, the respondents suggested, is simply a procedural step towards performance of the duty under s 99(3) to
establish a multi-party Cabinet. Section 99 gives no absolute right to be represented in Cabinet and, as a multi-party Cabinet will
only be achieved if there is Substantial consensus, the Prime Minister must be able to decline to accept some parties.
The respondents pointed out there is no provision preventing the Prime Mir from imposing conditions on the invitation. The 1999 Supreme Court Opinion clearlyearly established the right of the Prime Minister to reject a conditional acceptance. Their submission is that it established
a requirement only to act reasonably. As there is nothing in the section to say the invitation must be unconditional, it should not
be read in such a restrictive way, subject to the requirement of reasonableness.
In summarising his case, counsel for the respondents suggested that modification of the Westminster model, his interpretation was consistent
with and workable able in the overall framework established in Chapter 7 and was in accordance with the reasoning in the 1999 Supreme Court Opinion. That framework arose, he pointed out, from the Reeves Committee’s view that the South African model could not work in Fiji and the
drafting history of the provision shows a desire not to adopt such a system in Fiji. Finally he submitted that the plaintiff’s suggested
interpretation of s 99 would lead to a period of constitutional experimentation which the country could ill afford.
Counsel asked the Court to find that the Prime Minister’s letter of 10 September 2001 properly and reasonably made it clear that the
guiding pes of the Cabinet would be d be those of his party. The response by the plaintiff in his second letter that same day, whilst
purporting to accept the invitation, showed, by the reference to clause 4 of the Korolevu Declaration, that he intended to take the
policies of the FLP into Cabinet. The respondents contended this was a condition so incompatible with the terms of the Prime Minister’s
invitation that it was reasonable for him to treat the response as declining his invitation.
The Constitutional History
&
The 1990 Constitution was promulgated to restore parliamentary democracy after the 1987 military coup. It was not the product of a
consensus among the citizens of Fiji as a whole and the Reeves Committee stated that it did not meet the widely-shared desire for
a system of government that took proper account of Fiji’s multi-ethnic character. The authors of the 1990 Constitution acknowledged
its interim nature by providing for its review within 7 years, i.e. before 25 July 1997. In September 1993 both Houses of Parliament
unanimously resolved that a Commission of Inquiry should be set up to review the Constitution with appropriate Terms of Reference.
The Reeves Commission was established by the President on 15 March 1995 by a Commission which required it to “review the Constitution
promoting racial harmon national unity and the ecoe economic and social advancement of all communities” and “to recommend constitutional
arrangements likely to achieve the objectives of the Constitutional Review” (Report of the Fiji Constitution Review Commission Appendix
B pp. 754-5.)
The Commission made its report to the President on 9 September 1996. Its recommendations included in 9.148 that the had come when
most seats in the House of Representatives ives should no longer be reserved for particular communities but should be open seats
with candidates being elected by voters of all communities. However recommendation 9.154 was that, as a transitional measure there
should continue to be some reserved seats. It recommended a House of Representatives of 70 seats comprising 45 open seats and 25
reserved seats including 12 for Fijians and 10 for Indo-Fijians. It said in 9.166 that it saw “that proportion of open seats to reserved
seats as the bare minimum necessary to allow them to act as a spur to the development of multi-ethnic politics”. Its recommendations
in Chapter 2 “Strengthening the Constitutional Foundations” included: “The primary goal of Fiji’s constitutional arrangements should
be to encourage the emergence of multi-ethnic governments”: “The Constitution should continue to be based on the Westminster system
of parliamentary government”, and that “Power-sharing should be achieved through the voluntary cooperation of political parties,
or increased support for a genuinely multi-ethnic party”. The Commission said (2.61) that “There was wide support for the idea that
all ethnic communities should have the opportunity to play a part in the Cabinet”, and (2.69) that:
... progress towards the sharing of tive power among all ethnic communities is the only only solution to Fiji's constitutional problems. Constitutional arrangements which will encourage the emergence of multi-ethnic governments should he the primary goal
/p>
It rejected a submission that Cabinet should be formed frl parties, in proportion to their representation in the Lower House subject
to a minimum thum threshold (9.87). It recommended instead that the Constitution should maintain the system under which a government
must have the support of a majority in the Lower House in the expectation that the proposed changes in the electoral arrangements would
encourage the emergence of multi-ethnic parties or coalitions that could form a government (9.98). It continued (9.99):
This approach has the advantage of ensuring that, in normal circumstances, a united government will be in a position to secure the implementation of its policies. The concept of "winner take all condemned in a number of submissions, will still apply, but it should no longer have its present effect of allocating government and opposition, not only between parties, but also between ethnic communities.
The report was tabled by Major General Rabuka, the Prime Minister at a joint meeting oh Houses of Parliament on 10 September 1996.
The joint meeting referred the report to the Jthe JPSC, comprising 23 members from the six largest parties and the Prime minister
and the Leader of the Opposition. The JPSC submitted its report on 13 May 1 997. Its recommendations included the following dealing
with multi-party government:
G.1 The Reeves Commission had recommended that the primary goal of Fiji’s constitutional arrangements should be to encourage the emergence
of multi-ethnic governments. In agreeing to this principle the IPSC has gone further and stipulates that the Constitution would include provisions that the Prime
Minister must establish a multiparty Cabinet which would, as far as possible be a fair representation of all parties represented
in Parliament. A constitutional threshold should be set to provide the basis of representation therein.
G.2...
G.3...
G.4 In the event that parties invited to join a multi-party executive government decline to take up the invitation, the Prime Minister
shall have the flexibility to form a Cabinet from within his own party.
The JPSC rejected the formula of representation recommended by the Reeommission (H9) and recommended that there be 46 communal seats
and 25 open seats.
On 23 June Major General Rabuka, speaking in the Lower House of Parliament, moved the second reading of the Constitution (Amendment)
Bill 1997. The Bill as introduced contained section 3 as it subsequently appeared in the Constitution and section 6 in its final
form but without paragraph (1). Clause 50 which allocated the 71 seats in the House of Representatives became s 51 of the Constitution
without amendment and clause 63 dealing with the composition of the Senate became s 64 without amendment.
Clause 98, which became the basis of s 99 of the Constitution, contained six subsections. The first two are identical with the corresponding
subsections in s 99 but the remaining four subsections were significantly different from the rest of the section as enacted. Subclause
(4) provided for a threshold of 4% of the total membership of the House of Representatives as the basis for entitlement to proportional
representation in Cabinet. Although it conferred such entitlement and ss (5) contemplated that the Prime Minister would invite minority
parties to be represented in Cabinet it did not in terms require the Prime Minister to issue such an invitation. The Bill contained no provision equivalent to s 99(6), which provides that when the
Prime Minister appoints to the Cabinet a person from a party whose membership in the House of Representatives is below the 10% threshold, the representation of his own party in Cabinet will be reduced. Further the Bill contained no provision equivalent to s 99(7) which requires
the Cabinet positions to which a minority party would be entitled, but for its refusal of an invitation from the Prime Minister,
to be allocated amongst the other parties, including the Prime Minister’s party, In proportion to their entitlements under s 99(5).
Clause 3 of the Bill which dealt with the interpretation of the Constitution differed in minor ways from the provision proposed by
thees Commission. Clause 5 con5 contained the Compact between the people of the Fiji Islands along the lines proposed by the Reeves
Commission (Report 676-7) but with significant differences. Paragraph (6) of the Compact as recommended by the Reeves Commission,
broadly corresponds with s 6(g) of the Constitution. Both refer to a situation where “it is necessary or desirable to form a coalition
government from among competing parties” but unlike paragraph (g) as enacted paragraph (6) referred not only to “their willingness
to come together to form or support a government” but also to “the compatibility of their policies’. Paragraph (1), which is quoted
later, added a further principle to section 6.
In this second reading speech on 23 June 1997 Major General Rabuka said (Hansard 4437):
The provisions of chapter 7 dealing with Cabinet government make a fundamental change to the formation of governments in Fiji. The provisions contemplate the formation of multi-party Cabinets in which parties whose membership in the House of Representatives reach a particular numerical threshold must be invited by the Prime Minister to participate in Cabinet. I should mention that this is one section of the Bill that is still under active discussion and the final form will depend on the consensus or agreement that will emerge from further consultation with the Joint Parliamentary Select Committee and from the general debate that will ensue in this honourable chamber.
p class=MsoNormal smal style="text-autospace: none; margin-left: 36.0pt; margin-right: 0cm; margin-top: 1; margin-bottom: 1"> that win the majority of seats in the General Election is invited to form a Government. Here, the intention is to go a little further. Clearly, we shall need to weigh very carefully the benefits of showing greater political goodwill in this way, and the practical importance of having a system of Cabinet government that is decisive in providing leadership and is able to maintain the discipline of collective Cabinet responsibility and unity. There is also the need to maintain a credible and effective opposition, not only to keep Government accountable but also to give the people an alternative choice of Government.
