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State v Iloilo, Ex parte Tarakinikini [2006] FJHC 146; Judicial Review HBJ 15 of 2005 (23 June 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


JUDICIAL REVIEW NO: HBJ 15 OF 2005


BETWEEN:


RATU JOSEFA ILOILO, PRESIDENT REPUBLIC OF THE FIJI ISLANDS
First Respondent


AND:


COMMANDER, REPUBLIC OF FIJI MILITARY FORCES
Second Respondent


AND


THE ATTORNEY-GENERAL OF FIJI
Third Respondent


EX-PARTE:


LT. COL. FILIPO TARAKINIKINI
Applicant


Counsel: Mr. S. Banuve for 1st and 3rd Respondents
Ms. A. Rokomokoti for 2nd Respondent
Mr. S. Matawalu for the Applicant


Date of Hearing: 6 March, 4 May, 1 June 2006
Date of Judgment: Friday, 23rd June, 2006


JUDGMENT

Background

[1] Can the court review a decision of His Excellency, the President, as Commander in Chief of the Republic of Fiji Military Forces when he refused to accept the resignation of a military officer? As the determination of this question will resolve the issue of leave and the substantive judicial review proceeding an expedited process has been adopted.

[2] The applicant Lieutenant Colonel Filipo Tarakinikini was first commissioned in the then Royal Fiji Military Forces in 1981. After training at Sandhurst and the Senior Command Staff College in the United Kingdom he was by May of 2000 promoted to the rank of Lieutenant Colonel.

[3] On the 19th of May 2000 a coup occurred in Fiji under the leadership of now convicted traitor George Speight. In an extraordinary Fiji Gazette the Lieutenant Colonel was purportedly appointed Chief of Staff of the Republic of Fiji Military Forces by Speight and his supporters. This subsequently led to investigations against the applicant later that year for alleged involvement with the coup plotters. The Lieutenant Colonel has always denied any complicity in these matters

[4] In December of 2000 Lieutenant Colonel Tarakinikini was selected by the United Nations to take up an appointment as Training Officer for the department of peace keeping operations. Release was granted for a 12 month limited term posting abroad commencing March 2001

[5] Later that year further allegations about the applicant and his involvement in the coup and UN appointment were released to the public. He contends that he has sought a full inquiry into the events of the May 2000 coup as it affected his professional standing as a military officer and personal reputation. The RFMF refused an extension of the United Nations secondment beyond the initial 12 month term. The applicant has sought to resign his commission. He has remained abroad. In earlier proceedings for Judicial Review that reached the Supreme Court detail was given in the judgment of the steps taken by the applicant to resign. That detail is relevant to this judicial review. At page 5 the Court said

On 27 February 2002 the petitioner tendered his resignation from RFMF with effect from 21 March 2002. He wrote (from New York) to the Commander, RFMF. The lengthy letter contained a deal of historical and explanatory material and it referred to recent telephone conversations between the Commander (Commodore FV. Bainimarama, the first respondent) and himself. The letter (hereafter referred to as the first letter) clearly expressed the writer's intentions to tender to the Commander his resignation with effect from 21 March 2002.
As the Court of Appeal pointed out, the letter made no reference to Reg. 21. Nor had it followed the procedure contemplated by the regulation, which (read fairly and in light of military practice) contemplated that a letter of resignation would be submitted in the first instance to the officer's immediate commanding officer, who had the right and obligation to include material relevant to considering whether or not the resignation should be permitted, when forwarding the application to the Commander for transmission to the President.
The Petitioner's commanding officer at the time was Lt. Colonel Waqavakatoga.
The Commander's reply on 12 March 2002 was in the following terms:
The petitioner made a lengthy reply to the Commander in a letter of 21 March 2002. The letter contains material explanatory of the petitioner's role in the May 2000 coup and complains about the injustice of the RFMFs decision not to permit the extension of the United Nations contract. On the subject of the resignation it said this:
The petitioner's claim in this letter that s.194(2)(b) of the Constitution gave him an absolute right to resign is not correct, as the Court of Appeal pointed out.
Indeed, the petitioner appears to have recognised this early in the piece, because he wrote to the President and Commander in Chief of RFMF on 8 April 2002 complaining that his application to resign should have been transmitted to the President under Reg.21. This letter was copied to the first respondent, referring to Reg.21 and calling upon the Commander to transmit the original letter of resignation to the President with the Commander's comments on the matters set out under Regulation 21(a)-(d)
(The lawyers appears not so have recognized that the Commander was not the petitioner's immediate commanding officer at the time).
On 28 April the petitioner wrote to the Acting Commander, RFMF, Lt. Colonel Naivalurua confirming his attention to resign with effect from 21 March 2002. We refer to this as the second letter.
On 2 May 2002 the first respondent directed that the Application for Resignation of Commission be actioned (affidavit of first respondent sworn 5 June 2002, par 12 (m) ).
On 10 May 2002 the letter of 28 April 2002 was forwarded by the Acting Commander to Lt.Col. Waqavakatoga, the petitioner's commanding officer. Lt. Colonel Waqavakatoga treated that letter as a letter of resignation delivered under sanctions" in accordance with Reg. 21. In his affidavit of 5 June 2002, the first respondent indicated that the submission would be forwarded to the President with sanctions". This was done.

[6] The proceedings in the earlier review focussed on the decision of the Commander of the RFMF as evidenced by his letter of the 12th of March 2002 to the applicant's first letter of resignation. The Supreme Court observed that while the first letter clearly detailed the applicant's intention to resign it did not invoke Regulation 21; it went beyond the subject matter of resignation; it was not forwarded through the applicant's immediate Commanding Officer and it was overtaken by other events well before the proceedings for Judicial Review and the first set of proceedings were filed. Accordingly the Supreme Court found at paragraph 49:

In the upshot, the petitioner's entitlement to have his application to resign dealt with in accordance with Reg.21 was acknowledged and put into effect by the RFMF before the Application for Leave to Apply for Judicial Review was filed. The Court of Appeal was, in our view, clearly correct to refuse relief by way of judicial review of the first respondent's initial response to the petitioner's first letter. There was simply no utility in such relief. Indeed it would have been counter-productive in light of the fact that the second letter had been processed correctly and put before the President in circumstances where the petitioner had not been refused the right to put his story before the President.

[7] All the while during those proceedings the President through counsel made it clear that he had reserved his position on the resignation until after the original Judicial Review proceedings and appeals were completed.

[8] Accordingly, the Court of Appeal and the Supreme Court excluded from their consideration the President's decision, whether that decision may be amenable to Judicial Review and whether or not the principles of natural justice should apply to decisions made about a resignation of commission [Supreme Court para.56]

[9] The focus of this application for judicial review is not upon the Commander of the RFMF and his response to the first or second letter of resignation but upon the exercise by the President of his powers as Commander in Chief in refusing to accept Lieutenant Colonel Filipo Tarakinikini's resignation of commission.

[10] The second Respondent is joined as it is perceived his advise to the President on the applicant's resignation was unlawful or if not unlawful then malicious and made in bad faith.

[12] This then is an application in which Lt Col. Filipo Tarakinikini seeks various declarations against the respondents arising out of the refusal of the President to grant his resignation of commission.

[13] He seeks:

[14] As a result the applicant prays for orders of certiorari to quash the President's decision refusing resignation and of mandamus requiring His Excellency to reconsider the application. The application is opposed.

The Arguments for Justiciability

[15] The applicant's case was refined to a point of submission before me in counsel's written address at page 3 where he posed the question "can the decision of the President be challenged by judicial review".

[16] Counsel correctly submitted that the Constitution is the supreme law of the State (section 2(1)) and that the President is bound and subject to the Constitution. I also accept his submission that by virtue of section 117 any ruling given by the independent judicial branch of State is binding on the President. (President of the Republic of Fiji v Inoke Kubuabola Misc. Case No.1 of 1999).

[171 Counsel emphasised the executive nature of the office of President and the many occasions on which the exercise of His Excellency's powers are circumscribed by ministerial advice.

[18] It was argued that those restrictions on Presidential power and the constraints placed on the Commander of the Republic of Fiji Military Forces (second respondent) by section 112 of the Constitution make Presidential decision making on applications for resignation of commission amenable to judicial review. It is there after argued that the President's decision may be impugned for breach of natural justice and in particular for a failure to hear from the applicant before the decision was made.

[19] The matter then required further submissions on the issue of whether His Excellency the President was still vested with prerogative powers reserved to him by the Constitution. Counsel, without detailing the constitutional history, suggested that since independence in 1970 all prerogative powers first exercised by the Governor General were now exercised by the President of the Republic of Fiji. However it was submitted that as these powers were now all creatures of statute they were subject to statutory interpretation and judicial oversight.

[20] Counsel did not recognise the specific prerogative of Commander in Chief. He submitted that the exercise of prerogative or reserve powers in Fiji are generally justiciable particularly as the President must act on advice.

[21] The Solicitor General on behalf of the first and second respondents answered the applicant's initial submissions by a sweeping challenge to the legitimacy of the entire proceedings. It was perceived that the issues raised in this judicial review had already been argued before the Court of Appeal and the Supreme Court in the original proceedings. It was submitted that the applicant was estopped from raising these issues afresh as the Court of Appeal had dealt with the matter when it considered regulation 21. The passage used by counsel as authority to exclude this court's further consideration of the matter is found at p19:-

It seems to us that the theme of the provisions of the Constitution is to confer responsibility for the forces on the Commander. It seems that he will have a large measure of control over who is appointed to those forces and who is removed from there. But ultimately it will be for the President, USUALLY on the advice of the Commander, to make the actual appointment or permit a retirement in a given case. [Emphasis is mine]

The qualification that such Presidential decisions will usually be an advice opens up the issue again for this particular application. I reject this res judicata argument.

[22] In reliance on Marks v The Commonwealth [1964] HCA 45; (1964) 111 CLR 549 it was submitted that no legally enforceable right may be considered when dealing with the exercise of the President's powers pursuant to regulation. Alternatively it was argued that the President as Commander in Chief makes absolutely no real decisions at all they being made it was perceived by the Military Commander of the Republic of Fiji Military Forces the second respondent and there was accordingly no decision to review.

[23] As the applicant is living abroad and has clearly demonstrated his intention to remain away and out of reach the Solicitor General then submitted that any relief that may be granted was nugatory and accordingly the application for judicial review was a hypothetical exercise that the court should not engage in. It was submitted alternatively that as the applicant had fully utilised the judicial system and had the soldier's right of redress no practical relief could be granted to him.

[24] It was submitted in relation to the Second Respondent's advice to the President that this issue was already decided in the earlier application. Alternatively that the principles of natural justice did not apply to such advice.

[25] In the first proceedings both courts made comment on this issue but did not make any finding that could bind this judgment rather the Supreme Court 'observed' at para 55 -

Secondly, we agree with the comments by the Court of Appeal (at pp22) recognizing what is effectively the corollary of the first point. Since Reg 21 confers no automatic right to resignation and since the President (on advice) is undoubtedly to consider the application in light of the information accompanying it in accordance with Reg 21 and the public interest, it follows that there seems nothing wrong with the applicant's commanding officer and/or the Commander providing such further information ias is thought relevant to the proper consideration of the application. The application of the principles of natural justice was not raised before us, either generally or in particular reference to the petitioner's circumstances. Like the Court of Appeal (p21), we do not wish to comment on it in the absence of submissions.

I reject the second Respondent's argument of res judicata against the application for review.

[26] In the light of the applicant's submission concerning the role of the Military Commander of the Republic of Fiji Military Forces in Fiji after the constitutional amendment in 1997 a further submission was provided by the Attorney General to the effect that the military are now firmly under the control of parliament. In reliance on an article entitled The Role of the Governor General as Commander in Chief of the Australian Defence Forces by Sir Ninian Steven [a graduation address to the Joint Services Staff College, Canberra June 21 1983] counsel suggested that the President's role in relation to the military is one requiring that he act only on advice. An opportunity to comment on that submission was provided to the Second Respondent's counsel but not taken up.

[27] As for the prerogative it was the State's position that there was very limited scope for the President to use reserve powers if any. Again without full analysis it was tentatively submitted such powers continue to exist despite independence and Fiji's constitutional history.

Resigning from the RFMF

[28] The Supreme Court detailed the process for resigning a Commission in the RFMF and conveniently summarised the relevant legislative framework from the reasoning of the Court of Appeal in the first proceedings. I repeat it here as it is not contentious.

At common law an officer holding a commission in the armed forces is not free to resign at will (see generally Hearson v. Churchill [1892] UKLawRpKQB 125; [1892] 2 QB 144, Marks v. The Commonwealth [1964] HCA 45; [1961] 111 CLR 549).
Section 112 of the Constitution continues in existence the RFMF established by the Constitution of 1990. That section also provides:
Pursuant to s.67(b) of the Republic of Fiji Military Forces Act (Cap.81), the Minister may make regulations providing for the terms of service and appointment, duties, promotion, seniority, transfer, leave, resignation and release from service of officers. The presently relevant regulation is Reg.21 which provides:

(Amended by Order 7th October 1970*)

(2) Where an officer is permitted to resign, the resignation shall not take effect, unless otherwise ordered by the Governor General, until the acceptance is notified in the Gazette.

(Amended by Order 7th October 1970*)

(3) A regular officer who has been trained at Government expense at the Royal Military Academy, Sandhurst, or at any other Commonwealth Ministry College or Academy who applies to be posted to the Reserve of Officers or to resign his commission shall refund to Government the following amounts:
Within one year of being commissioned,
.........
$1,000
Within two years of being commissioned,
..............
$800
Within three years of being commissioned,
..............
$600
Within four years of being commissioned,
..............
$400
Within five years of being commissioned,
..............
$200
(Inserted by Regulations 29th July 1952)
The reference to the Governor General in this regulation should now read as a reference to the President.
The Court of Appeal held (at p.19) that s.112(3) of the Constitution was not affected by s.194(5) thereof in its application to the petitioner. Regulation 21 is the statutory framework within which the petitioner's rights touching his decision to seek to resign are to be determined.
The Court of Appeal pointed out that:
[Regulation 21] clearly contemplates that resignation is an option open to an officer holding a commission in the forces but that resignation must be made in a particular way and the decision as to whether or not it is to be accepted is one to be made by the President. In view of the inappropriateness of a serving officer merely being released by the action of forwarding a resignation the regulation must mean that the procedures which it contemplates are to be followed and that the resignation cannot take effect until such time as it has been accepted by the President.
The ... regulation requires a resignation to be considered by and commented on by the commanding officer of the officer who wishes to resign his commission. The commanding officer must forward it on to the Commander, whose obligation it is to submit it to the President. In both cases it can be assumed that information will be forwarded which will enable a decision to be made.
The decision must reflect the circumstances. It is plain that bearing in mind the history that a serving officer may not resign without permission and the wording of the regulation shows that the decision is not one which is automatic.
In such case the person making the decision must be provided with the necessary information to enable the decision to be made and to be one which will not impede the effectiveness of the armed forces. It is no doubt for that reason that the regulation contemplates that the resignation will be forwarded through the chain of command.
...
A chain of command is an important matter in the armed forces and this is reinforced by the necessity for a considered decision to be given in the case of the resignation of a commissioned officer.
As indicated, the correctness of this analysis by the Court of Appeal was not questioned in this Court.

Prerogative

[29] It was Blackstone that noted the word prerogative signifies by its etymology (from prae and rogo) something that is required or demanded before or in preference to all others. Blackstone reasoned that such reserve powers must be in their nature singular and eccentrical as the definition could only be applied to those rights and capacities which the Head of State enjoys alone in contradistinction to others.

[30] There is in fact no single accepted definition of the prerogative. The "Wikipedia" definition is the most succinct:-

The royal prerogative is a body of customary authority, privilege and immunity, recognised in common law jurisdictions possessing a monarchy as belonging to the Crown alone. It is the means by which some of the executive powers of government are possessed by and vested in a monarch with regard to the process of governance of the State are carried out. It is not subject to parliamentary scrutiny but an individual prerogative can be abolished by legislative enactments. Though some Republican Heads of State possess similar powers they are not coterminous containing a number of fundamental differences.

[31] The exercise in Fiji of prerogative powers was a colonial import. The role of the Governor General in that regard was pivotal. At the imperial conference of 1926 a resolution was passed that Governors General representing the Crown held "in all essential respects the same position in relation to the administration of public affairs in the dominions as is held by His Majesty the King in Great Britain". The contemporary commentators on the Australian Constitution, Dr John Quick and Sir Robert Garran in their commentary published in 1901 said that the title Commander in Chief was "one of the oldest and most honoured prerogatives of the Crown". That function is reserved to the President in s87 of the 1997 Constitution.

[32] The commissioning dismissal and resignation of officers in the armed services has always been a prerogative power. The first question is how much of this former prerogative has survived Fiji's constitutional history and is now reserved for the President when he acts as Commander in Chief of our armed forces. The second is whether the exercise of such a pure prerogative, now more correctly a reserve, power is immune from challenge.

Fiji; A Brief Constitutional History

[33] It is clear that before 1970 Her Majesty exercised her royal prerogatives as Queen of Great Britain and its colonies in respect of Fiji. Section 1 of the 1970 Constitution of Fiji provided that Fiji should be a "a Sovereign Democratic State". Section 72(1) vested the executive authority of Fiji in Her Majesty. However because Fiji had become a sovereign democratic state, she had the authority from the date of independence onward as Queen of Fiji not as Queen of Great of Britain. There can accordingly be no doubt that from the date of the enactment of the 1970 Constitution the royal prerogatives were incorporated into Fiji's unwritten law.

[34] Following the coups of October 1987 the 1970 Constitution was revoked by Decree of the Commander and Head of the Interim Military Government of Fiji. The Decree also provided that all Decrees promulgated under his hand and seal were to be "regarded as law" and to be "observed and enforced". On the 7th of October 1987, Fiji was declared by such a Decree to be a Republic. On the 5th of December 1987 a President was appointed (appointment of Head of State and dissolution of Fiji Military Government Decree, section (4) ) The Decree vested the executive authority of Fiji in the President and empowered him to exercise it. When the 1990 Constitution of Fiji was promulgated on the 25th of July 1990, section 82 provided that the executive authority of Fiji was vested in the President. It was to be exercisable by him or by the Cabinet or any Minister authorised by the Cabinet.

[35] Section 167 of the 1990 Constitution of Fiji reads :-

"167.-(1) All rights, liabilities and obligations of Her Majesty in right of the Government of Fiji or of the Fiji Military Government shall after the commencement of this Constitution be rights, liabilities and obligations of the State.
(2) In this section, rights, liabilities and obligations include prerogative rights and rights, liabilities and obligations arising from contract or otherwise, other than rights to which section 166 applies".

[36] Again there can be little doubt that the prerogative rights of the Queen then became vested in the President. The Decree by which the first President was appointed in 1987 contained no provision in terms similar to section 167 of the 1990 Constitution. The Fiji Court of Appeal in Muma v University of the South Pacific (1995) FJCA 9 having summarised this detail then went on to record that they had examined all other Decrees promulgated between October 1987 and the 25th of July 1990 and could find no similar provision to section 167. Nevertheless they were satisfied that while the Queen's prerogative rights ceased when she ceased to be the Queen of Fiji they nonetheless became her right by virtue of her being the Head of State of Fiji and passed to the Head of State who took her place that is to say the President appointed in 1987. They remained his right and obligation until this office was re-established by the 1990 Constitution when they became the right and obligation of the holder of that office by reason of section 167 of that Constitution.

[37] The 1997 Constitution repealed the Constitution of the Sovereign Democratic Republic of Fiji (promulgation) Decree of 1990 and did not under section 195 specifically save section 167 of the 1990 Constitution. That however is not fatal in my view to the survival of certain prerogative powers of the President.

[38] Rather than continue a broad approach to the inclusion of such powers the framers of the 1997 Constitution adopted the device of reserving specific prerogative powers for the President. For example the prerogative of mercy in section 115. In exercising most but not all of these powers the President is required to act in accordance with the advice of Ministers or some other constitutional body. The Constitution also preserves the widest powers possible for the performance of constitutional function.

[39] Section 194(7) contains the following provision:-

"(7) A person, authority or body upon which functions are conferred by this Constitution has power to do everything necessary or convenient to be done for, or in connection with, the performance of those functions".

[40] In my view these provisions when taken in combination with the savings provision at section 195(2)(e) to the effect that all other (unwritten) law in the State continues in operation and the effect of a Westminister system on Fiji's constitutional history can only indicate the safe transition of Her Majesty's prerogatives from the Govenor General then first to the President appointed in 1987, then the President appointed under the 1990 Constitution and now a President appointed under the 1997 Constitution.

[41] It was perhaps these assumptions that led the Fiji Court of Appeal in the State v Patel [2002] FJCA 13 to observe in respect of a costs application against the Crown in criminal proceedings that the general common law principle relied on by the State to avoid liability for costs in criminal proceedings is found in the royal prerogative and has "long been recognised." The Court of Appeal in treating aspects of the royal prerogative in the manner they did in that case and Muma (supra) suggests that the constitutional reservation of prerogatives to the President or the State need not necessarily be expressed but may continue as unwritten law.

[42] What is clear is that the prerogative of Commander in Chief was preserved in s87 and in that capacity the President by s194(7) has the power to do everything necessary or convenient in connection with that function.

The Constitution

[43] As Professor Dworkin has pointed out constitutional interpretation must begin with what words the framers used. However, just as our judgment about what friends and strangers say relies on specific information about them and the context to which they speak so does our understanding of what the framers said. History is therefore plainly relevant. But only in a particular way. We turn to history to answer the question of what they intended to say not the different question of what other intentions they had. We have no need to decide what they expected to happen or might hope would happen in consequence of their having said what they did. [Freedoms Law (1996) at 10]

[44] The intentions expressed in the Constitution are to be primarily gathered from its words. If the words are plain then effect must be given to them. If they are doubtful then the intention of the framers is to be gathered from other provisions in the Constitution aided by consideration of surrounding circumstances with regard to the historical facts about the bringing of the Constitution into existence. In that regard the report of the Fiji Constitution Review Commission is important. [Parliamentary Paper No. 34 of 1996 - 'CRC']

[45] In most republics the Head of State's ability to exercise reserve powers salvaged from the prerogative is clearly defined and often restricted by the text of the Constitution or other subordinate legislations.

[46] The Presidential role and his powers are very simply stated sections 96(1) and (2) make it clear that Fiji no longer has an executive President.

"96.-(1) Subject to subsection (2), in the exercise of his or her powers and executive authority, the President acts only on the advice of the Cabinet or a Minister or of some other body or authority prescribed by this Constitution for a particular purpose as the body or authority on whose advice the President acts in that case.
(2) This Constitution prescribes the circumstances in which the President may act in his or her own judgment".

[47] The Commissioners described the role of the President's office as closely resembling that of the Governor General. [CRC para 9.41] When talking about the essence of the President's reserve powers the Commission said that they are a backstop only to ensure that the Prime Minister and other political leaders act constitutionally. [CRC para. 9.48] Illustrations of what is meant by such a vague constitutional description can be found in the decisions of Yabaki & 2 Others v The President of the Republic of Fiji and the Attorney-General in both the Court of Appeal and Supreme Court (CA 61/2001S and Supreme Court HBC 119/2001). There is undoubtedly limited scope for the President to use his reserve powers to exercise control of the parliamentary system. It is however not clear from the Constitution what reserve powers his excellency has retained from the prerogative of Commander in Chief of the Military Forces.

[48] The wording of section 87 is clear enough the President is the Commander in Chief of the Military Forces. No mention of Minister of Home Affairs, the Multi Party Cabinet or the Prime Minister instead an appealing and culturally appropriate vision of a high chief at the head of his warrior armies. He is the General, the first among equals appointed by the Bose Levu Vakaturaga as their representative. His commands are ultimate and unassailable, or are they? In this case it would be a simple enough matter of holding to that view and following the clear lines of prerogative power that gave to the monarch the personal right to commission officers who then served at pleasure until dismissed. However the applicant's case goes beyond the convenience of ancient precedent and invites consideration of these issues in a wider constitutional context of the roles of the President the Military and the Commander in Chief in Fiji. What is the role of our Commander in Chief? Is it the warrior vision of a battle ready chief or in the context of modern defence force structure more the description of a glorified patron of the defence forces -who in terms of military command is powerless.

[Sir Ninan Stephen supra para 22]

[49] The Fiji Constitutional Review Commission saw the President devolving former prerogative powers over the military to the exercise of the executive. They regarded the role as nominal only conveying no power of actual military command. At paragraph 9.39 of its report the Commission observed -

...that any residual common law powers of the Crown in this and other fields are to be regarded as part of the "executive authority of Fiji" vested in the President by section 82(1) and exercised mainly through Ministers. More over in countries, comparable with Fiji, most of not all aspects of the governance of the armed forces are now comprehensively provided for by statute. That is presumably a matter which will be looked at closely in the current Defence Review.

[50] The framers of the 1997 Constitution sensitive to the debate about standing armies in Fiji and the imbalance between military/civilian relations caused by the upheavals of 1987 addressed that potential threat by recommending that the armed forces be constitutionally subordinate to Parliament. (Paragraphs 393 and 395) recommended

393. The Constitution should provide that a military force may be raised or maintained in the Fiji Islands only under the authority of an Act. Section 94(1) of the 1990 Constitution, requiring the maintenance of the Republic of Fiji Military Forces, should be replaced.
395. The purposes for which the armed forces may be raised or maintained should be specified in an Act, rather than the Constitution. Section 94(3) of the Constitution specifying the present responsibility of the Republic of Fiji Military Forces, should be repealed.

[51] The 1990 Constitution in departing from the 1970 Constitution made express provisions for the RFMF and its functions. In my view it is clear that by 1997 it was intended that the Military Commander while free to exercise military executive command everafter did so under ministerial control so as to relieve him of any political influence. The Armed forces are now clearly subordinate to Parliament.

[52] It was no doubt for that reason that section 195 of the 1997 Constitution did not save sections 94(1) and (3) of the 1990 Constitution, The omission of these sections must mean that they were repealed. That was the framer's intent. [CRC para 12.88 and 12.94] Were it otherwise then parliament would be unduly constrained in its proper control over the Military Force of the Fiji Islands. The RFMF institution was retained by virtue of section 112(1) of the 1997 Constitution but everafter the armed services were duty bound to serve the purposes of the Government.

[53] A comparison of these detailed constitutional provisions designed to wrest governance of the armed forces to Parliament with the lack of any specific constitutional provision restricting the prerogative of the Commander in Chief and in particular that part of the power relating to the resignation of commission is in my view significant.

[54] In the exercise of His Excellency's powers and executive authority Presidential action is circumscribed by:

1. Cabinet advice or
2. Ministerial advice
3. Or the advice of some other body or authority prescribed by the Constitution for a particular purpose to give advice in that case

[55] In that regard the President takes advice on the appointment of the commander of Fiji's military Forces (S112) who in turn exercises "military executive command" of the Republic's forces subject to the control of the Minister.

[56] S112 does not effect the Commander in Chief prerogative. The framers specifically restricted the powers of the Commander of the RFMF but not those of the CIC that was left to convention. Perhaps they were satisfied with the restrictions already contained in the Constitution or perhaps it was simply overlooked. Although clearly the framers expected some revision of the RFMF Act might take place to comprehensively provide for the future governance of the armed forces. That revision is long overdue.
[CRC para 12.88]

[57] The prerogative of Commander in Chief preserved in s87 contains an unfettered power for the grant and resignation of an officer's commission. S112 clearly does not devolve that power to the Commander RFMF who may only appoint, discipline and remove members of the Forces. I am not convinced that "military executive command" is specific enough to oust or restrict that prerogative power. In that regard with respect I concur with the observations of the Court of Appeal in the first judicial review proceedings at p19 where their Lordship's noted that the longstanding practice of the President commissioning officers and approving their resignation is preserved under the Constitution. When this prerogative decision is made by military tradition, constitutional convention and legislative design I find it is not made on advice of the Minister or any other constitutional body.

[58] In my view when taken together

(1) The constitutional history of prerogatives in Fiji and
(2) The preservation of the ancient prerogative of Commander in Chief at paragraph 87 and
(3) The reservation of ultimate power in paragraph 194(7) for the President to use that prerogative and
(4) The clear opportunity but failure to specifically restrict the prerogative in either s87 or s112 and
(5) The ability for the President to act in his own judgement in prescribed circumstances in s96(2)

must mean that the prerogative has constitutionally survived intact and could then only be ousted or restricted by specific legislation.

The RFMF Act

[59] Section 3(3) provides that the Forces are under the supreme command of the Governor General, now, President and importantly only then through the Minister under the command of the Commander. I take that to mean in so far as this subordinate legislation was concerned that unless specifically stated in the Act the supreme Commander may exercise his powers independent of ministerial supervision.

[60] This is underscored by subsequent ministerial restrictions on the exercise of the CIC power for example in subsection 4 where it is the Minister as distinct from the Supreme Commander or Commander who deploys Forces out of Fiji.

[61] Section 5 provides for the appointment and promotion of Officers. They are appointed by the President on the recommendation of the Minister. There is a distinction between appointment and commissioning. This distinction is often blurred but it is of relevance here. In law, a commission is a patent which allows a person to take possession of a state office and carry out official acts and duties. Although "commissioned officer" is a military term, civilian officers of the government such as judges, justice of the peace and cabinet ministers are also commissioned. A commission does not appoint a person to an office or make a person an officer. The appointment occurs before the granting of the commission itself; however, the commission is necessary for the person to exercise the power of office or rank. In the military in most cases the actual issue of a commission will follow appointment as an Officer. The commission is the form and warrant of an Officer's rank given at pleasure. (Coutts v Commonwealth of Australia [1985] HCA 40; [1985] 157 CLR 91 at para 7 per Deane J)

[62] S5(6) makes it clear that an officer's commission is at the pleasure of the President Again this reflects the tradition of this relationship.

[63] The President also retains the power to dispense with the service of Officers and soldiers but can only do so upon the advice of the Minister (section 17).

[64] The provisions of Regulation 21 set up a specific process for the resignation of a commission using language in regulation 21(2) that underscores service at pleasure as an Officer may only be "permitted to resign". The historical notion of service at pleasure is an exceptional perhaps anachronistic one but the legislature in emphasising the Commander in Chief's prerogative has seen fit to leave that power undiminished and unrestricted. If anything this regulation and s5(6) of the Act simply adopt the common law position that an officer holds his commission at the pleasure of the President.

The Common Law

[65] The law governing the relationship between the State and members of the RFMF is described by the RFMF Act and regulations but the provisions should be read against the well established common law principles defining this traditional relationship. (The Commonwealth v Welsh [1947] HCA 14; [1947] 74 CLR 245 at 368)

[66] The authoritative statement on the common law position is that of Charles M Clode in the Military Forces of the Crown; Their Administration and Government. (volume 2) London 1869 page 96:-

"The obligation which a commission lays upon the recepient is to serve the sovereign for life, or until it is the pleasure of the Crown to relinquish the services of or dismiss the officer. It is clear that no officer has the right to resign, and therefore until his resignation is accepted by the Crown he continues amenable to all the consequences of omitting to discharge the duty of an officer under his commission".

[67] Clode cites Parker v Lord Clive (1769) 4 BURR 342(2) and Virtue v Lord Clive (1769) 4 BURR 247(2). These are 18th and 19th century English cases but their sentiment appears approved in Fiji by our Supreme Court (supra page 1). In Marks (supra) Windeyer J said:

Servants of the Crown, civil and military, are by the common law employed only during the pleasure of the Crown...... it does not need a statute to bring the rule in. It would need a statute to put it out.

In R v Hume [1960] NZLR 880 The plaintiff argued that by virtue of the New Zealand Act 1913 (now repealed) an officer was entitled to resign his commission at any time in peace and, thereby, put an end to his obligation to serve. The relevant section 7 read:-

"7.(1) Except in time of war an officer may at any time by writing under his hand resign his commission".

However, subsection two provided that such resignation could not take effect for any purpose until notification of acceptance by the Governor General was gazetted.

[68] Hume argued that the reference in subsection (2) to acceptance by the Governor General was only intended to ensure a necessary period for administrative action. He submitted that this subsection did not authorise a delay in accepting the resignation greater than what was necessary for that administrative action to occur. In response to this argument His Honour Justice McCarthy said

"I have considerable doubt whether that is so. The words of section 7 seem plain and unambiguous and, at the moment, I see no adequate reason why they should not be given their plain and ordinary reading, which appears to me to be that an officer may put in a written resignation but that, until the naval authorities accepted, that resignation it is inoperative. To add to that the qualification for which the plaintiff contends is something which appears to me not to be required by reading of the section ... I would think that a provision requiring the naval authorities to accept the resignation of any commission at any time in peace would have been a real departure from naval tradition and that it can be said with force that if that had been intended that was one matter which would have been expressed in clear terms".

[69] I accept that proposition as authoritative for the purposes of this judicial review. In the absence of clear terms to the contrary service at pleasure and resignation only with permission must be given their plain and unambiguous meaning. Until the President has accepted a resignation it is inoperative.

Is The Exercise of the Commander in Chiefs Prerogative Justiciable

[70] The New Zealand Courts have had to wrestle with this issue in the context of their former Defence Act 1971 where the Governor General was given direct power to appoint and promote officers at pleasure but on advice. Bradley a former naval officer who had been a Commander holding the temporary rank of Captain with good prospects of permanent promotion to that rank was overlooked and demoted by the Naval Promotions Board and his Chief of Naval Staff. This had the result of relieving Bradley of his temporary command. He challenged these decisions. The Court held that both the Board and the Chief of Naval Staff exercised statutory powers as distinct from prerogative powers and accordingly their decisions raised justiciable issues amenable to review by the Courts. [Bradley v Attorney General [1988] NZHC 21; [1988] 2 NZLR 454]

[71] The decision illustrates the susceptibility of decisions over service member's rights to Judicial Review in appropriate circumstances especially where the enabling legislation comprehensively sets out matters of appointment, promotion and discharge authorising some statutory body such as a Defence Council to issue orders dealing with such matters. That is however, not the position in Fiji where the relevant legislation is very short on detail.

[72] The fact that New Zealand courts took care to distinguish the exercise of a statutory power and a prerogative should not be read as suggesting that the exercise of a purely prerogative power is never amenable to review.

[73] The decision of the New Zealand Court of Appeal in Burt v The Governor General [1992] 3 NZLR 672) makes useful comment. The Court considered that in modern law there was wide power in the courts to review decisions made in the exercise of any prerogative, The facts were briefly that Burt convicted for murder and sentenced to life imprisonment applied for pardon under the prerogative of mercy from the then Governor General. The Judicature Amendment Act only permited applications for review of statutory decisions. In rejecting the application the President Lord Cooke of Thorndon nonetheless observed at various paragraphs between pages 678 and 688:-

"The mere fact that a decision had been made under the prerogative did not exempt it from review by the Courts. The test was rather whether the subject matter of the decision was justiciable. It will be inconsistent with the contemporary approach to say that, merely because the prerogative of mercy was a pure and strict prerogative power, its exercise and non exercise must be immune from curial challenge. That challenge would be permitted in so far as issues arose of a kind with which the courts were competent to deal. The claim that the Court should be prepared to review a refusal to exercise the prerogative of mercy, at least to the extent of ensuring that elementary standards of fair procedure had been followed could not by any means be brushed aside as absurd, extreme or contra to principles. In the end the issue must turn on weighing the compelling consideration. Probably it could not be said that any one answer was necessarily right. It was more a matter of a value or conceptual judgment as to the place in the law and the effectiveness or otherwise of the prerogative of mercy at the present day. As it has developed that prerogative has become an integral element of the criminal justice system, a constitutional safeguard against mistakes".

I accept that where a discretionary prerogative power is justiciable its exercise can be challenged by judicial review on the same grounds as that of discretionary powers vested in the executive by statute [Council of Civil Service Unions v Minister of State for Civil Service [1985] ICR 14]

[74] The Fijian courts have never held that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service. However the special relationships that define military life have supported the RFMF's broad power to deal with its own personnel without curial oversight, [Mills v State [2005] FJCA 6 AAU 0035.2004S] The most obvious reason for this is that our courts are not equipped to determine the impact upon discipline that any particular intrusion upon military authority might have. Military command encompasses the responsibility for the highly professional organisation of a modem military force and through the chain of command discipline for that purpose is critical

[75] The exercise of some prerogatives such as mercy may be amenable to judicial review as they have become an integral element of the justice system and a constitutional safeguard against mistakes. The exercise of the prerogative to permit the resignation of an officer has not been integrated or changed much at all. The common law rules relating to the commissioning and resignation of officers of the Republic of Fiji Military Forces have not been developed or modified by the Constitution, or subordinate legislation in such a way as would favour the applicant's claim for judicial review. In my view the Constitution, s5(6) of the RFMF Act and regulation 21 are intended to maintain the voluntary character of the State's engagement with its military officers. In the absence of constitutional or legislative provision it is the prerogative power which supports the relationship between officers of the armed services and their President.

[76] I am satisfied that the prerogative power to accept or reject an officer's resignation of commission exists. Its extent has not been restricted by either constitutional or subordinate legislation. The exercise of this prerogative power does not pose issues of the kind which the courts are competent to deal.

[77] The fact remains that the applicant on becoming an officer accepted a commission to be held at the pleasure of the Head of State. If it is the President's pleasure to refuse his resignation at any time then the applicant's commission continues. I do not believe that on its proper construction regulation 21(1) can invest an officer with any actionable right. The process of resignation of a commission is precisely detailed and follows the common law and military tradition. An officer is therefore not entitled to call in to question the exercise of the President's pleasure. In my opinion the conclusion is therefore inescapable that the President having made his pleasure known neither that decision nor the procedural steps leading up to it are open to review by the courts.

The Second Respondent

[78] This applicant says that the Commander acted unlawfully or in bad faith by forwarding recommendations to the President concerning the issue of resignation. In my view the evidence presented by the applicant falls far short of the requirements necessary to engage such an argument. Much of his affidavit in this regard is a personal and speculative perception of the wider events surrounding his wish to resign his commission.

[79] That said I would also completely agree with the observations of the Supreme Court made at paragraph 52 of their decision that the scheme of resignation of commissions under regulation 21 contemplates that an application will be processed through the chain of command.

[80] This must involve the Unit Commander and then the Commander in Chief passing on to the President such information as is necessary for a proper decision to be made. Accordingly I do not see that process as in any way unlawful.

[81] I also find it to be an integral part of the President's exclusive powers over resignation of commission and therefore equally non justiciable. It is immaterial what information may have been supplied for that purpose under R21.

[82] As a matter of public policy the second respondent as the executive Commander of the Military Forces in Fiji should be free to make whatever assessment or comment he deems necessary to his superior over an officer's resignation of commission. In my view s112 of the Constitution, the RFMF Act/Regulations, and the stern duties and obligations of a disciplined service require nothing less. I find the Commander's actions non justiciable and refuse the declarations and relief sought by the applicant.

Concluding Observations

[83] The applicant's purpose in resigning is not relevant to these proceedings except to observe that the practical effect of such a resignation would not extinguish his liability to military discipline or investigative procedures. In the event of termination of his appointment or resignation of his commission, like all service men and women, the applicant will nonetheless remain liable for recall to answer military charges or investigations.

[84] In addition I accept that under the ambulatory provisions of the United Kingdom Army Act incorporated into the RFMF legislation the applicant has the quite separate soldiers right to apply to his Commander in Chief for a reddress of right over any wrong he perceives was put upon him in the line of duty.

[85] I cannot therefore perceive any practical effect any declaration may have.

Conclusion

[86] For the reasons given the application for leave and the substantive application for judicial review are, under the expedited process, refused.

[87] The application has raised matters of interest wider than those personal to the applicant and accordingly there will be no order for costs.


Gerard Winter
JUDGE


At Suva
23rd June, 2006

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