ACTION NO. HBJ0038 OF 1999
STATE
v
RATU GEORGE TU'UAKITAU COKANAUTO, RATU VILIAME
DREUNIMISIMISI, RATU ESIRA RABUNO, PECELI
RIA, SAMUELA MATAWALU, RATU KAVENI BASIKUTA,
RATU SEMI SEMI SERUVAKULA, RATU VILIAME VOLAVOLA, RATU TIMOCI
SILATOLU, TOGA WAILEVU, VILIAME SAULEKALEKA and RATU INOKE SERU
First Respondents
THE FIJIAN ASSOCIATION
Second Respondent
EX-PARTE:
ADI KUINI TEIMUMU VUIKABA SPEED
First Applicant
JOSAIA TUIONEATA GUCAKE
Second Applicant
R.K. Naidu he Applicpplicants
S. Matawalu for the Respondents
Dates of Hearing: 28th September, 4th, 5th October 1999
Date of Judgment: 14th October 1999
p ALIGN=CENTER>JUDGMENT
Introduction
This ihis is a case with important constitutional implications. Its immediate impact is in relation to the appointment of five Senators.
Its longer-term impact is as to who will lead the second party of the governing coalition parties of this country.
It takes the form of an application for Judicial Review of the decision of the Respondents dated 11th September 1999 purporting to
act as the National Executive Council ("the NEC") of the Fiji Association ("the Party") and conveyed by letter
of the same date to the First Applicant purportedly:
(a) comprising a Motion of the NEC of no confidence in the First Applicant as Acting Party Leader and resolving to relieve her of
her position with immediate effect and resolving to relieve the Second Applicant of his position of General Secretary of the Party
with immediate effect;
(b) electing the First-named Respondent Party Leader.
The Applicants seek:
(1) a Declaration that the decision at "a" is ultra vires, void and of no effect;
(2) a Declaration that the First and Second Applicants remain Acting Party Leader and General Secretary respectively;
(3) further or alternatively an Order of Certiorari to remove into this Court and quash the decision.
The grounds on which the above relief is sought are that:
(a) the Decisions were arrived at a meeting which was convened in breach of Clause 8(f) of the Constitution of the Party:
(i) not having been requisitioned by or called by the Secretariat of the Party; and/or
(ii) not having been convened on at least one week's notice and therefore being ultra vires the Party Constitution; and/or
(b) further or alternatively the Decisions were arrived at without full detail of matters to be discussed being provided, in breach
of Clause 8(f) of the Party Constitution and thereby ultra vires the Party Constitution.
Agreed Facts
The facts agreed appear to be as follows:
(a) Adi Kuini was appointed acting Leader of the party on 6th September 1998 by the National Executive Council of the Party;
(b) on 10th September 1999 Ratu Esira Rabuno circulated a paper calling for a "Special Extraordinary Meeting" of the NEC
for the following day with the stated business:
....to get the Party's nominee (sic) to the Senate before the swearing in scheduled for Monday, 13th September 1999.
[Adi Kuini's affidavit 13th September 1999 paragraph 10, Exhibit D.]
(c) on 11 September 1999, 12 persons purporting to constitute themselves as the NEC met and decided that:
(i) that Adi Kuini be relieved of her position as Party leader;
(ii) that Ratu George Cokanauto Tu'uakitau be Party leader;
(iii) that Mr. Gucake be relieved of his position as General Secretary;
(iv) that Josefa Nata be General Secretary; and
(v) that five persons (a different list to Adi Kuini's) be "nominated to the Senate through the Leader of the Opposition".
[Adi Kuini, paragraph 13, Exhibit E.]
It is this set of decisions which is the subject of these proceedings.
Before going to the submissions which have been made to me I must emphasise what all lawyers will regard as indisputable but which
those who are not lawyers may not fully appreciate. I am not in the least concerned with the rightness or the wrongness of the actions
of the parties which have led to this litigation or the policies of the Fijian Association Party. My concern is only to see that
those involved in these proceedings obtain justice according to law, specifically that the decisions of the Respondents dated 11th
September 1999 were reached in accordance with the Constitution of the Party and were procedurally fair towards the Applicants.
As will be seen as this judgment proceeds two Constitutions of the Party are relied on by the Applicants and Respondents. The Applicants
base their application on what is termed "The Amended Constitution" which they allege was adopted at a meeting of the Fijian
Association National Council held at Suva on 24th July 1998. In the affidavit of the Second Applicant sworn on 23rd September 1999,
Josaia Tuioneata Gucake says at paragraph 17 what was meant by the word "adopted" was that this was a complete consolidation
of the amendments to the Party Constitution following the amendment to the disciplinary procedure clause adopted at the 1998 AGM.
Public Law
I do not think it was seriously argued by the Respondents that no question of public law is in issue in this case. If the Respondents
have any doubts about this then I resolve them in favour of the Applicants by relying on the decision of Scott J. in Judicial Review
HBJ No. 8/99 The State v. Adi Kuini Vuikaba Speed and Others Ex-parte: Fereti Dewa unreported judgment of 30th July 1999. That case dealt with Section 71 of the 1998 Constitution of Fiji whereas the present application
comes under Section 64 of the Constitution. Dewa's case concerned the expulsion of a member of a political party from the party whereas the instant case concerns appointments to the
Senate. Nevertheless I consider the principle is clear and I also respectfully adopt what Scott J. said at page 3 of his judgment:
"Furthermore, it cannot be doubted that the principles of natural justice, unless specifically excluded, apply to domestic tribunals
(see John v. Rees [1970] Ch, 345, 397)."
In the political context, Fijian law departs significantly from the English law on which much of Fijian administrative law is based.
Unlike England, Fiji not only has a written Constitution, but political parties have a clear role and purpose in and under the Constitution.
Matters done and decisions taken by parties have a direct impact on both legislature and the executive. For example:
(a) at s.64(2) of the Constitution, leaders of parties nominate persons for Senate appointments;
(b) at s.71(1) (g) and (h) of the Constitution, resignation or expulsion from a qualifying political party impacts on membership of the House of Representatives;
(c) s.99(5) - qualifying parties have a right to representation in Cabinet or (s.99(7)) to decline an invitation so to join. Leaders of parties have a right to be consulted on Cabinet choices: s.99(9).
Political parties thus operate as an integral part of the total system of government. Their decisions (and of their leaders) can result
in vacancies in the House of Representatives (s.71(1)(h); in the composition of the Cabinet (s.99) and in the composition of the
Senate. The constitutional seriousness of these functions imposes on them the highest obligations to act in accordance with their
own rules; to act fairly; and to act properly.
In its recent Opinion delivered on 3rd September 1999 the Supreme Court said at page 9 of the Opinion:
"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." (Miscellaneous Case No. 1 of 1999.)
Thus it will be seen that Party Leaders have important constitutional functions, far more so than those of Ordinary Members of Parliament.
Hence, I emphasise the need for a Party to act properly and judicially in taking decisions on its management and leadership.
The Parties' Contentions
These contentions revolve essentially on the question which Constitution applies? The Applicants say the Amended Constitution (Clause
8(f)) of which reads thus:
"At least one week's notice of any meeting of The Fiji Association National Executive Council must be given to the Members and
the Notice of Meeting shall give full detail of the matters to be dealt with at the meeting."
The first issue, it seems, is whether Clause 8 exists. The Respondents have attacked the document on which the Applicants rely as
being virtually non-existent. In his affidavit sworn on the 17th of September 1999 Ratu Esira Rabuno says in paragraph 3 that the
Constitution of the party which he annexes was adopted at a meeting of the Fijian Association National Council held at Suva on January
15, 1994. He appears to suggest that, "No amendments hav(ing) been registered by the Supervisor of Elections", this must
be the Constitution which governs the party.
Josaia Gucake, in reply, has extensively explained the process by which he arrived at the Amended Party Constitution in paragraphs
4-14 of his affidavit. He there gives a history of the circumstances leading to the adoption of the Amended Constitution, going back
to its first amendment on 18th June 1995 and later at Annual General Meetings of the party on 28th May 1996 and 27th June 1997. He
acknowledges that the "paper trail" is unsatisfactory but denies any intention to mislead.
The Respondents in the affidavits of Asikinasa Toga Wailevu, Esira Rabuno and Marika Dakunivecena sworn on 27th September 1999 do
not deny that the amendments which Gucake says were made were made.
I understand the Respondents' position to be that as the Original Party Constitution is the only one filed with the Supervisor of
Elections and since no amendments have been filed, the Original Party Constitution can be the only one which binds the Party.
I note here that the Electoral (Registration of Political Parties) Regulations 1991 (Legal Notice No. 91 under the Electoral Decree
of 1991) do require in Regulation 5(2)(g) that a copy of the relevant Party Constitution be filed at the time of application for
registration but they do not appear to require amendments to be filed. In my judgment even if they did, in the absence of specific
regulations which stated that amendments were not binding unless registered the fact that the amendments were not filed would not
prevent Party members being bound by them.
To my mind one of the most significant features of the Respondents' case is their reference to a National Executive Council which
is a term only to be found in the Amended Constitution. Thus in Esira Rabuno's affidavit of 17th September 1999 annexure 'D' has
a copy of the Minutes of the 1998 AGM, which the Applicants do not dispute and which refer to the National Executive Council. This
appears as follows:
"That in clause 15, "the final decision to determine the disciplinary action to expel a member from the party is to be vested
with the National Executive Council"."
Gucake's Exhibit GJ11, a document generated by the Respondents, appears to acknowledge that the correct procedure to be adopted is
that provided for in Clause 8(f) of the Amended Party Constitution.
This is a Notice signed by the Respondents dated 20th September 1999, that is the one after these proceedings were commenced, requesting
members of the National Executive to convene a meeting of the National Executive Council on Monday, 27th September 1999. This appears
to acknowledge that the correct procedure to be adopted in holding a meeting of the NEC is that provided for in Clause 8(f) of the
Amended Constitution.
What is the Alternative?
All the submissions ask this question. The Applicants' answer is that the Original Party Constitution (Rabuno, Exhibit 'B') does not
provide for a NEC but it does refer to a "Fijian Association Management Council" (Clause 6) comprised of 21 members (Clause
6(c)) and a "Fijian Association National Council" (Clause 7) comprised of members of the Management Council, Members of
Parliament (including Senators) and Constituency Council Members (Clause 8).
The Minutes of the 1998 AGM make clear that the office bearers elected were as set out on page 3 thereof. There is no evidence of
a Management Council existing. Thus the Applicants argue that it could not have been the Management Council which met on 11th September
1999.
The Applicants therefore submit that on the Respondents' own evidence:
(a) there is an NEC;
(b) the NEC is created by Clause 8 of the Amended Party Constitution (it is not to be found anywhere else);
(c) if the NEC is acknowledged by the Respondents as existing pursuant to Clause 8 of the Amended Constitution, it can reasonably
be inferred that it is acknowledged by all parties to be subject to the procedural requirements of Clause 8(f).
Furthermore they say that the Notice dated 20th September 1999 requesting a meeting of the NEC on the 27th of September is proof positive
of the knowledge of the Respondents of a National Executive Council which, they repeat, is a term only found in the Amended Constitution.
The Respondents answer these submissions first by saying that the term NEC is a reference to the "National Executive Committee"
which they say is a term used by Josaia Gucake himself in his notices of meetings and Minutes of those meetings since he became General
Secretary of the Party. They then say that the notice of requisition for the meeting of the 27th of September is not a notice given
pursuant to the Amended Constitution. It is simply given for the convening of any ordinary NEC meeting pursuant to the law and practice
of meetings requiring reasonable notice, given the subject to be discussed at the meeting and the convenience of members.
As to the first part of this submission there is no evidence to support it; like so many of the Respondents' submissions it asserts
evidence. I find it difficult to accept the second submission because in my judgment the notice of the 20th of September was an attempt
to correct the error pointed out by the Applicants relating to the calling of the meeting of the 11th of September. I cannot believe
that the meeting of the 27th of September was intended to be an ordinary meeting because Items 3, 4, 5, 6 and 7 of the Agenda all
refer to matters which this Court has been led to believe were of great concern to the Respondents. Evidence of this is to be found
in Rabuno's first affidavit in paragraphs 7 and 12.
Thus in paragraph 12(b) Mr. Rabuno refers to "the paramount importance of the Senate appointments not only to the Party but more
importantly to the nation as a whole" and to "the extreme urgency of the situation considering that the Leader of the Opposition
had indicated that he expected the Party's nominations by the afternoon of the 11th of September".
The Respondents repeat that there is and always has been a NEC on the authority of Clause 5(c) of the Original Constitution but again
there is no reference to such a body in Clause 5(c). I must therefore reject the Respondent's submissions on this question.
In my judgment the Respondents' notice of "Special Extraordinary Meeting" (a term not found in either Constitution,) of
the NEC breaches Clause 8(f) because:
(a) one week's notice was not given;
(b) full detail of the matters to be dealt with was not given.
The Respondents rely on "Shackleton on the Law and the Practice of Meetings" 7th edition edited by Ian Shearman (hereinafter
"Shackleton") which enumerates the essentials of a valid notice and states that a valid notice must:-
(1) State the date, time and place of the meeting.
(2) State with sufficient fullness the purpose of the meeting.
(3) Give notice of any special business to be conducted at the meeting.
(4) Comply with any statutory obligations as to form and content, and with the requirements of any other regulatory body, such as
the Stock Exchange.
(5) Be clear, honest, unambiguous and definite.
(6) Be issued on good authority.
(7) Be given in the prescribed manner (hand, post, advertisement or other means).
(8) Allow the appropriate length of time between service and the date of the meeting.
(9) Be sent to every person entitled to receive it.
I find this submission very strange. Certainly:
(1) was complied with in the notice of the meeting of the 11th of September; and
(2) this was certainly not complied with in that in my judgment the notice given on the 10th of September for the meeting on the 11th
stated the purpose as being to "get the party's nominees to the Senate before the swearing in of the 13th of September".
In fact as we now know that may have been one of the purposes but of equal importance was the question of leadership which in my
view could properly be called "special business".
As to 6 "the good authority" is not stated. The notice is signed by Esira Rabuno as Deputy Party Leader but no such entity
exists in either Constitution.
As to 7 there is no evidence as to how the notice was given to the other members of the NEC. Further there is no evidence that the
notice was sent to every person entitled to receive it.
The Respondents argue in answer to the Applicants' submissions that the meeting should have been convened through the party Secretariat
that the Secretariat is merely for the administrative convenience of the party but it seems to me that it would be extraordinary
if bodies of persons purported to hold meetings and take decisions without involving the Secretariat of the body. This case as I
said at the beginning raises important constitutional questions of which I should hope the Respondents were aware. Consequently in
my view any meeting as to the leadership of the party and the proposed members of the Senate should only be convened through the
party Secretariat so as to provide certainty as to the Agenda of the meeting and to ensure that as many members as possible attend
such a meeting.
Both parties made detailed submissions on the membership of the NEC but in view of the clear opinion I have formed that the Amended
Constitution was in force on the 11th of September 1999 and that the requisite notice under Clause 8(f) was not given to the Applicants,
I do not find it necessary to consider these submissions in any detail. I will say only this, that I prefer the submission of the
Applicants on this question.
The Respondents place much store on the fact that Toga Wailevu and Viliame Saulekaleka were members of the NEC because they were "founding
members". There is no evidence to support such a proposition because neither the Original Party Constitution nor the Amended
Party Constitution provide for such entitlement.
The result is that I consider the meeting of the 11th of September was a nullity in law in that it was held in breach of paragraph
8(f) of the Party's Constitution and that consequently the nominations of the First Applicant to the Senate were validly made. I
will only add for the purpose of completeness that, regardless of which Constitution applies, I am of the firm opinion that the Applicants
were not accorded natural justice at the meeting of the 11th of September. Their positions were at stake. They were entitled to be
heard to answer the case against them and in my view the Respondents' failure to give them this right also rendered the decision
of the 11th of September a nullity.
I therefore make the following Declarations:
(1) that the Decision of 11th September 1999 is ultra vires the Constitution of the Party and therefore of no effect;
(2) that the First and Second Applicants remain Acting Party Leader and General Secretary respectively.
I order that Certiorari go to remove into this Court and quash the Decision.
This completes my judgment on the legal questions but at the conclusion of argument the parties invited me to make any recommendations
which I thought might assist the Party and its members in the future.
As a judge I approach this task with great diffidence and stress that my following remarks are intended purely as a guide for the
future conduct of the Fijian Association Party which is free to disregard them if it wishes.
The principal complaint of the Respondents appears to be the lack of any consultation or sufficient consultation between the First
Applicant and the other members of the party. I was told by counsel for the Respondents that throughout its existence to date the
emphasis of the party has been on consensus. Mr. Naidu did not dispute this. That being so, it seems to me that the Amended Constitution
requires further amendments to prevent the circumstances which have arisen here of the Leader of the party only deciding on any nominations
to the Senate. I think it would be impractical to require such nominations to be decided at either an Annual General Meeting or Extraordinary
Meeting of the party.
The fortunes of any political party ultimately depend on the ability of its Leader and at the end of the day the Leader is the person
who must accept responsibility for the success or failure of the party at elections or in the Parliamentary conduct of the party.
Section 64 of the Constitution entrusts the responsibility of nominating a person or persons to the Senate to the Leader of the parties
entitled to be invited to participate in the Cabinet. Thus it may well have been that the First Applicant regarded herself as having
such authority when she nominated the persons she did. The Constitution gave it to her.
The Amended Constitution of the Party was adopted as I have found on 24th of July 1998, three days before the New Constitution of
this country came into force.
In hindsight it is probably regrettable that the Amended Constitution does not contain any procedure for the nomination of Senators.
If, as is said, consensus is so important to the party, it seems to me that the party may consider appropriate a provision allowing
the Executive Committee to nominate Senators. This would be less cumbersome and I consider far more practical than allowing such
nominations to be decided by an Extraordinary General Meeting. In my opinion therefore, fairness would be achieved if responsibility
for nominating Senators were given to certain members of the NEC. I would suggest that these be:
(1) the Fijian Association Party, President;
(2) the Fiji Association Party, Leader;
(3) the Deputy Leader;
(4) the National Vice President;
(5) the National Secretary;
(6) the National Treasurer;
(7) the Assistant Secretary.
The Leader must still make the actual nominations to the President of the Republic but he or she would do so after consultation with
Executive Officials of the party who, one would expect, represent the mind of the party.
Beyond that I am not prepared to go and again I emphasise that this is purely a recommendation. I would hope, as I said at the conclusion
of argument when it was suggested that there might be further judicial review involving the decision of the 27th of September, that
the members of the Party, being responsible citizens, perform their functions in a spirit of goodwill towards each other and exercise
common sense in reaching any decisions.
I leave the matter there.
JOHN E. BYRNE
JUDGE
Cases referred to in Judgment:
HBJ No. 8/99 The State v. Adi Kuini Vuikaba Speed and Others Ex-parte: Fereti Dewa - unreported judgment of Scott J. of 30th July 1999.
Miscellaneous Case No. 1 of 1999. The President of the Republic of Fiji Islands v. Inoke Kubuabola and Others - Opinion of the Supreme Court dated 3rd September 1999.
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