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Qarase v Uluivuda [2008] FJHC 377; HBC0329.2008 (14 November 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


CIVIL ACTION NO. HBC0329 of 2008


BETWEEN:


LAISENIA QARASE
of Moti Street, Samabula, Suva
Deposed Prime Minister
(1st Plaintiff)


SOQOSOQO DUAVATA NI LEWENIVANUA (SDL)
of itself of McGregor Road, Suva, and by its
National Director PECELI KINIVUWAI of
Namadi Heights, Suva
(2nd Plaintiff)


AND:


RATU JOSEFA ILOILO ULUIVUDA
in his capacity as President of the Republic of Fiji
and President of the Interim Government of Fiji, of Government House, Suva.
(1st Defendant)


COMMODORE VOREQE BAINIMARAMA
in his capacity and as Interim Prime Minister and Interim Minister
of Finance of the Interim Government of Fiji, and as Co-Chair of the
National Council for Building a Better Fiji (NCBBF) and
the Peoples Chatter, of Government House, Suva
(2nd Defendant)


AIYAZ SAYED-KHAIYM
in his capacity and as Interim Attorney General of the Interim
Government of Fiji and as representative of the 1st and
2nd Defendants, of Suvavou House, Suva
(3rd defendant)


ARCHBISHOP PETERO MATACA
Co-Chair of the Peoples Charter of Nicholas House, Suva
in his capacity as Co-Chair of the National Counsel for
Building a Better Fiji (NCBBF) of Suva
(4th Defendant)


JOHN SAMY
in his capacity as Secretary of the National Council
for Building a Better Fiji (NCBBF) of Suva
(5th Defendant)


Counsel for the Plaintiffs: N Nawaikula
Nawaikula Esq


Counsel for the 1st, 2nd, 3rd and 5th Defendants:
C Pryde, Solicitor-General
L Daunivalu
Ms V Chang


Counsel for the 4th Defendant: M Benefield


Date of Decision: 14 November, 2008
Time of Judgment: 11.00a.m.


DECISION


This Originating Summons filed on 24 September 2008, is brought by Laisenia Qarase, in his personal capacity as a citizen of Fiji and as leader of the Soqosoqo Duavata ni Lewe ni Vanua Political Party (SDL), and as Prime Minister deposed by the military in December 2006. He is the first plaintiff. The second plaintiffs are the SDL Party and its National Director Peceli Kinivuwai.


The first defendant is the President of the Republic of Fiji Ratu Josefa Iloilo Uluivuda is sued in this proceedings in his capacity as the President of the Republic of Fiji.


The second defendant is the Interim Prime Minister of the Interim Government of Fiji. He is sued in his capacity as the Interim Prime Minister of the Interim Government, as Interim Minister for Finance, and as the Co-Chair for the National Council for the Building a Better Fiji ("NCBBF") and its product, the People's Charter.


The 3rd defendant is the Interim Attorney General of the Interim Government sued in his capacity and as representative of the 1st and 2nd defendants, as well as representative of the Interim Government.


The fourth defendant is the Co-Chair with the 2nd defendant of the NCBBF and the People's Charter. He is sued in his capacity and as the Co-Chair of the NCBBF and the People's Charter.


The fifth defendant is named as the Secretary of the NCBBF but more correctly titled the Head of the Technical and Support Secretariat of the NCBBF. He is sued in his capacity as the Head of the Technical Support and Secretariat ("HTSS") of the NCBBF.


In their Summons, the plaintiffs are asking from this Court the following Orders and Declarations:


"1. A DECLARATION that the Interim Government of Fiji, of itself and by the 1st, 2nd and 3rd Defendants, individually and collectively, does not have the power nor lawful authority to amend alter, repeal or abrogate the 1997 Constitution of the Republic of Fiji and/or to do anything or make recommendations, including and affecting changes to the electoral system, that are contrary or inconsistent with the current provisions of the Constitution.


2. A DECLARATION that the interim Government of Fiji, of itself and by the 1st, 2nd and 3rd Defendants, individually and collectively, does not have the power nor lawful authority to appropriate any public fund other than for the day to day running of the Government and that the appropriation of funds for the establishment, promotion of and continuing administration of the National Council for Building a Better Fiji (NCBBF) and Peoples Charter is ultra vires its powers and therefore unlawful.


3. AN ORDER restraining the Interim Government of itself and by the 1st, 2nd and 3rd defendants, individually and collectively from promulgating any laws, decrees, order or doing or recommending anything whatsoever to amend, alter, repeal, abrogate the 1997 Constitution of the Republic of Fiji or any of its provisions AND/OR doing anything or making any recommendations, including making any changes to the electoral system, that are inconsistent or contrary to the current provisions of the Constitution.


4. AN ORDER restraining the Interim Government of itself and the 1st, 2nd and 3rd defendants, individually or collectively from appropriating any funds to the NCBBF and Peoples Charter and from making any further payment to the NCBBF.


5. AN INTERIM ORDER restraining the Interim Government of itself and by the 1st, 2nd, and 3rd Defendants and the 2nd and 4th Defendants as Co-Chairs of the NCBBF and Peoples Charter and the 5th Defendant, their agents and or representatives from doing anything including promoting, advertising by radio, newspaper, any form of media publication, and from attending to public attendances to schools, churches, halls, communities, villages, tikinas, settlements and other public gathering and from doing anything whatsoever to promote to the public or to secure from the public support to amend the Constitution and or to promote the NCBBF, and/or the Peoples Charter or doing anything whatsoever relating to the same until the final determination of this matter.


6. ANY OTHER DECLARATION, ORDER, DIRECTIVE OR OBSERVATION as the court may deem just and expedient having regard to the circumstances of this case and the circumstances currently facing the Nation.


EX PARTE SUMMONS


On the same date of the Originating Summons, the plaintiffs filed an ex-parte Summons seeking interim injunctive reliefs against the defendants including their agents and/or their representatives.


The Summons sought the following Orders:


"THAT the Interim Government of Fiji, of itself, and by the 1st , 2nd and 3rd Defendants individually and/or collectively AND the 2nd and 4th and 5th Defendants, individually and collectively, their agents and/or representatives, AND by that description is included personnel in the Civil Servants, army and police and members of the NCBBF individually and collectively are to be RESTRAINED FROM:


1. Promulgating any law, decree order, agreement or doing or recommending anything whatsoever to Alter, Amend or abrogate or repeal the 1997 Constitution of the Republic of Fiji or doing anything whatsoever, including changes to the electoral system, that are contrary or inconsistent with the current provision constitution until the final determination of this matter.


2. Promoting by distributing articles, leaflets, forms and through announcements, advertisements and publication on Radio, Television, News Papers and any form of media and securing public support for changes to the 1997 Constitution of the Republic of Fiji and/or supporting and promoting the Peoples Charter until the final determination of this action.


3. Attending to Public Meetings and gatherings in schools, Halls, grounds, villages, settlements, Tikina Councils or any form of meeting whatsoever to promote and obtain support for the Amendment of the 1997 Constitution of the Republic of Fiji and the Peoples Charter generally until the final determination of this action.


4. Engaging and utilizing civil servants and government machinery including, vehicles, personnel, buildings, office equipments etc to promote and obtain support for the amendments of the 1997 Constitution of the Republic of Fiji and the Peoples Charter generally until the final determination of this action.


5. Appropriating and Paying any Public Funds to the NCBBF, its agents and/or representative until the final determination of this action.


The Summons was made inter parties by order of this Court. It came before me on 9 October, 2008 and was adjourned to 14 October for directions. On 14 October, the Court ordered that the defendants file their affidavits in reply within 14 days, and for the plaintiffs to respond 7 days thereafter and adjourned the matter for the hearing of the Summons to 6 November 2008 for arguments. On 29 October the 1st, 2nd and 3rd defendants through an affidavit filed by the 5th defendant filed their affidavit in reply. The 4th defendant did not respond.


I had earlier indicated that because of the serious and urgent nature of the issues that are implicated in this proceedings, involving matters of utmost national importance, I would adhere strictly to the time frame we had agreed to for the filing of documents. The 4th defendant through Counsel subsequently informed the Court that he did not file any affidavit preferring to rely on the affidavit of Mr John Samy, the 5th defendant. The plaintiffs for their part did not, in return, file any response to the defendants' affidavit.


The NCBBF was established on the recommendation of the Interim Government by H.E. the President on 10 October, 2007 after the launch of the People's Charter for Change, Peace and Progress ("People's Charter"). The NCBBF numbered 45 and held its first meeting on 16 January 2008. At this first meetings, according to the two Co-Chairs in the Forward to draft People's Charter published in August 2008, the NCBBF decided to progress the task of formulating the draft People's Charter by first preparing what is called, "a comprehensive facts-based, diagnostic, forward - looking Report" on the State of the Nation and the Economy ("the SNE Report"). The intention of the SNE Report, again according to the Co-Chairs, "was to provide a list of recommendations for changes to our system of government, our constitution, laws, economic and resources development policies, leadership values, community relations, and institutional reforms". A Consultation Document describing "a list of the probable causes of Fiji's problems" and "critical questions and issues that need to be addressed" was issued by the NCBBF to assist the Fiji wide consultations working towards the production of the SNE Report. There were 3 National Task Teams ("NTT") additionally set up by the NCBBF, comprising members from within, to assist in the production of the SNE Report. The 3 teams were:


(i) NTT1 - responsible for good governing (legal, political, institutional & constitutional reforms);


(ii) NTT2 - Growing the Economy and


(iii) NTT3 - Social-Cultural Identity and National Building.


In turn NTTs spawned 9 Working Groups (WG) membership of which were open to outside of the NCBBF. These Working Groups included, Working Group 1 on Government, Leadership, Constitutional & Electoral Reform and Working Group 2 on Institutional & Public Sector Reform.


The second step in the Presidential initiative was the preparation of a draft Charter that was to reflect the "findings and recommendations" contained in the SNE Report and the results of the Consultations from the NCBBF "outreach activities".


It is the contents or more specifically the recommendations contained in these 2 documents, the SNE Report and the draft Peoples' Charter, coupled with the intentions manifested in public statements made by the defendants and/or their agents and representatives, that lie at the heart of this action.


Let me make some preliminary observations on the filing of affidavits. It is important to bear in mind that affidavits are the sole source of evidence before a Court in interlocutory proceedings. Great care must be taken by both parties to disclose all information relevant to the matter before the Court. In fact, the parties are obliged by law to do so. The High Court Rules are there to assist in the process at ascertaining the true nature and status of the issues in the case. The Applicant first files his Summons seeking certain injunctive reliefs from the Court. The reasons or grounds are set out in the affidavits filed in support. As Order 41 rule 5(3) stipulates, affidavits in interlocutory proceedings should contain not only facts as the deponent is able to prove of his own knowledge, but may also include "statements of information or belief with the sources and grounds thereof". The Respondent is then given the opportunity, should he wishes, if he opposes the Summons, to file his reasons in his affidavit in reply. It is not unusual that the responding affidavit will dispute certain facts as alleged by the Applicant in its affidavit. It is for this reason the Applicant is permitted, under the procedures, to file further affidavits to clarify and where necessary lend further authority to his statements of information and belief.


In this case, as I have already stated, the Applicants did not wish to respond to the affidavits by the defendants. For the defendants only one affidavit deposed by John Samy Head of the HTSS, is filed on their behalf. It contains arguments supported by reference to official publications as well as media reports disputing the veracity of Mr Qarase's allegation and statements of information and belief. One would have though almost impossible for the Applicants not to respond to the Samy affidavit. Yet, Counsel opted not to, and relied solely on the Applicant's first affidavit. This Court of course has the discretion to order the Applicants to file a reply to the Samy affidavit, but the urgent nature of the matter as prevailed upon by Counsel for the Applicant, demanded the hearing of his application for injunctive reliefs on the day. Finally, still on affidavits there is the issue of the qualification as to who is better placed to lend weightier authority to the matters before it and in the process assist the Court in arriving at the truth. I will revert to this later on.


I now turn first to the preliminary objection raised by both Counsel for the defendants on descriptions of the parties in the pleadings. Counsel urged that it was improper for the plaintiff to describe the 1st, 2nd and 3rd defendants representing "... the Interim Administration, styled Interim Government" and secondly, for the first plaintiff Mr Qarase to describe himself as "deposed Prime Minister" when the High Court's recent decision in Qarase v. Bainimarama [2008] FHC, decided that he was "dismissed" rather than "disposed". I am not entirely convinced that there is any merit in the argument that there is a great deal of difference between the term "Interim Administration" from "Interim Government". Students of politics maybe, as Counsel for the defendants pointed out, because of American influence, do freely substitute one for the other to the extent that it is perfectly acceptable to speak in the same breath of the Bush administration and US Government as of the Howard administration and the Australian Government. In any rate, any Government, interim or otherwise, takes the form of an Administration of sort. The Shorter Oxford English Dictionary on Historical Principles defines "Administration" inter alia, as "the management of public affairs, government" and the executive part of the legislative, the Ministry ..." This Court therefore does not see any merit in the defendants' argument, although the Court in its discretion has, amended the titles in the pleadings for the sake of brevity. Similarly, the objection to the use of the phrase "deposed Prime Minister", given that the decision of the Court in Qarase v. Bainimarama is now on appeal, is understandably without substance.


Objection was also raised on the capacity of the defendants who are named in the title in their personal as well as representative capacities. Counsel for the plaintiffs did not elaborate as to the reason(s) why the defendants are sued in their duel capacities. It is appropriate to do so in situations where liability may lie in either capacity, but given that this possibility had not been canvassed, the Court in its discretion has amended the title to reflect the fact that the defendants are being sued in their representative capacities.


Counsel for the 4th defendant submitted that under section 12 of the State Proceedings Act (Cap. 24) civil proceedings against the State should be instituted against the Attorney-General only. The proceedings, is against not only the Interim Government as representative of the State, but also agencies of government. Further, the actions objected to are being carried out by a government organisation the leadership of which, are correctly named as parties to this proceedings.


THE LAW ON INTERIM INJUNCTION


The principles governing are as Counsel correctly conceded, are set out in the American Cyanamid Co. v. Ethicon Ltd. [1975] UKHL 1; [1975] AC 396. There Lord Diplock examined the history of interlocutory injunction. His Lordship said that the application for an interlocutory injunction was to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right. The application is usually made on contested facts. For the Courts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesis the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. Granting the plaintiff relief by way of interlocutory injunction was intended to mitigate the risk of injustice to the plaintiff during this period before the uncertainty could be resolved. Lord Diplock added:


"... The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated in damages if the uncertainty were resolved in the defendant's favour at the trial. The Court must weigh one need against another and determine where "the balance of convenience" lies."


Lord Diplock was referring in particular to private law disputes. In the area of public law, it should be noted that the adequacy of damages will rarely determine whether or not it is appropriate to grant or refuse an interim injunction. For public law disputes the Courts in considering the balance of convenience must also take into account the wider public interest.


In summary, the principles enunciated in the American Cyanamid case are intended to avoid the Courts determining disputes of facts or difficult questions of law at the interlocutory stage of an action. The reason is explained by Lord Diplock as follows:


"In those cases where the legal rights of the parties depend upon facts that are in dispute between them, the evidence available to the Court at the hearing of the application for an interlocutory injunction is incomplete. It is given on affidavit and has not been tested by oral cross-examination. The purpose sought to be achieved by giving to the Court discretion to grant such injunctions would be stultified if the discretion were clogged by technical rule forbidding its exercise if upon the incomplete untested evidence the Court evaluated the chances of the plaintiff's ultimate success in the action at 50 per cent or less, but permitting its exercise if the Court evaluated his chances at more than 50 per cent."


The law on Interim injunction that has emerged and accepted since the American Cyanamid (supra) does no longer require as in the past, that the plaintiff establish a prima facie case. All he needs to do is establish that a serious issue arises, or that the claim is not frivolous nor vexatious, or that the application discloses a reasonable chance of success. If the plaintiff succeeds, then the only remaining consideration for the Court is the balance of convenience.


IS THERE A SERIOUS ISSUE TO BE TRIED?


The contention by the plaintiffs is that the defendants are intending to invoke changes to Fiji's Constitution without the Parliament's sanction. In his affidavit in support, Mr Qarase annexed both the SNE Report as well as the draft People's Charter as primary evidence to support his information and belief of the intention of the Interim Government to amend certain provisions of the Constitution and especially to Chapter 6 Part II dealing with the electoral system and the membership of the House of Representatives. In addition, he attaches newspaper reports on public statements by the Interim Prime Minister that lends support to this belief. Mr Qarase also alluded to work of the NCBBF and through it the public relations teams comprising government officials sent to villages and settlements, at taxpayers expenses, with the task of convincing the citizens of this country, that the changes to the Constitution are necessary. He believes firmly, that from evidence he attaches to his affidavit that the defendants' intention is to amend the Constitution without resort to Parliament.


It is accepted by all the parties that both the SNE Report and the draft People's Charter recommend changes to the Constitution in the form of abolition of the existing electoral system, the removal of the power sharing arrangement, changes to Constituency boundaries, the lowering of the voting age and the removal of compulsory voting. All these are provided for under Chapter 6 Part II of the Constitution and specifically sections 51, 52, 53, 54, 55 and 56.


The dispute is whether these changes will be brought about without Parliament, that is, whether the Interim Government will implement these changes outside the Constitution framework and specifically the requirements of Chapter 15.


AMENDMENTS TO THE CONSTITUTION


The Constitution is the primary law of the land. By its very meaning it is enduring. The judiciary is its guardian and its interpreter. Procedures for obtaining amendments to it are set out under Chapter 15, specifically sections 190, 191 and 192. No changes can be made to the Constitution other than is accordance with Chapter 15.


Section 191 sets forth two procedures for amendments to the Constitution. First the proposed amendment in the form of a Bill is to be read 3 times in each House and carried on its second and third readings by at least two-thirds of the members of each House. In the House of Representatives there must be an interval of at least 60 days between the second and third reading, and each of those readings is preceded by a full opportunity for debate. There is the additional requirement that the third reading of the Bill in the House does not take place until after the relevant Standing Committee has submitted its report.


The second procedure is where the Prime Minister certifies that urgency of the Bill and the Prime Minister's certificate is supported by a majority of at least 53 members of the House. This procedure does away with the two thirds support in each House, the full opportunity for debate and the report of the Standing Committee, so long as the bill is passed by at least 53 members of the house on its third reading.


Both these procedures are however subject to section 192. Section 192 recognises the veto powers to any amendments of the Constitution that infringe on the numbers and make-up of the 71 members of the House of Representatives as set out under Section 51 of the Constitution. The same powers is extended to any purported changes to section 185 that deals with indigenous legislations on land. These are known as the entrenched provisions.


I have gone into some details on the mechanics of Constitutional amendment procedures if only to highlight that it is a process that is well defined and detailed under the Constitution. Chapter 15 represents the only way which our Constitution can be altered or amended.


THE DEFENDANT'S ARGUMENTS


The affidavit by John Samy on behalf of the Interim Government makes clear that changes to the Constitution recommended by the NCBBF as contained in the draft Charter, "will be through legal and Constitutional means". Mr Samy referred to the Introduction to the draft People's Charter that clearly "affirm that our Constitution represents the supreme law of our country, that it provides the framework for the conduct of government and the people." Mr Samy also attached the statement by the Fijian members of the NCBBF published in a daily on 29 September 2008 in which they declared that,


"The People's Charter will not replace the Constitution. It proposes some changes to the Constitution but these can only be implemented through the procedures set out in the Constitution."


In asserting on behalf of all the defendants that any changes to the Constitution may only be through legal and constitutional means, Mr Samy categorically stated that the allegation from those opposed to the Charter that the changes will be brought about by illegal means "is mere rumour". According to Mr Samy while the defendants do not deny the Interim Government's intention to bring wholesome changes to Fiji's electoral system as well as other changes and reforms that involves amendments to the Constitution, such proposals will not be made by "extra constitutional methods."


Counsel for the defence emphasised that given the contents of Mr Samy's affidavit the threshold requirement of a serious issue cannot be sustained. The plaintiff's reliance on evidence provided from newspaper cuttings and reports which are, according to Counsel, heresy cannot lend credence or support to the plaintiff's submission of a serious issue. Mr Qarase's source of information and belief are therefore, according to the defendants, unreliable and does not comply with Order 41 rule 5 of the High Court rules.


The Court is of the view that the threshold requirements of permissible contents of affidavits in interlocutory proceedings are lower than in substantive proceedings. Whereas the latter requires affidavits to contain only facts as the deponents are able of their own knowledge to prove, affidavits in this proceedings, may only contain statements of information or belief so long as the sources and grounds of such information are given. In my view, while newspaper reports may or may not be reliable, they do nevertheless constitute sources that are permitted under Order 41 rule 5(2). As the House of Lords said in the American Cyanamid, the essence of interim injunction depends on facts that are in dispute and the Court of necessity has to decide on affidavit that has not been tested by oral cross-examination. It is for the Court alone to decide on the affidavit evidence before it, whether the plaintiffs have established a serious issue to be tried.


In this case the plaintiffs have, through Mr Qarase's affidavits, produced before the court sufficient evidence to prove that the defendants, namely, the Interim Government and the NCBBF are embarked on a joint endeavour to amend the Constitution. The plaintiffs claim that it is the intention of the Interim Government to give effect to these changes outside the framework of Chapter 15. In other words, the defendants will implement these changes to the Constitution without the Parliament first being convened. The plaintiffs find support in arriving at this conclusion by referring firstly to the recommendations for these amendments contained in the draft People's Charter as well as other NCBBF publications, coupled with the public statements by the 2nd defendant that if there is no Charter, there will be no elections, in other words, if the proposed changes recommended in the Charter are not made to the Constitution, there will be no elections for a Parliament.


While Counsel for the plaintiffs has not referred the Court to any direct evidence by way of an official statement or communiqué issued by the defendants to lend support to their belief that the Interim Government will invoke changes to the Constitution without Parliament, I believe that there is sufficient evidence before me to suggest that this process is seriously being contemplated by the Interim Government. The defendants and through the NCBBF, its agencies, have overwhelmingly endorsed the position that electoral reform, amongst others, needed to be implemented as a way forward for the country. The Communiqué of the 5th Meeting of NCBBF of 5 August, 2008 attached to John Samy's affidavit, boldly outlined a so-called 11 key pillars of rebuilding the country. Included at paragraph 5.4(i) is the requirement for the "implementation of an electoral reform package to ensure a truly representative legislature."


The electoral reforms comes under Pillar 1 ("Ensuring Sustainable Democracy and Good and Just Governance") in the draft People's Charter. Having outlined the "critical problems and issues" under it, the Charter recommended the following reform to the electoral system:


"• abolish the communal representation system as provided for under the Constitution and the Electoral Act 1998, and replace this with the use of a common roll system for all future elections.


• establish a fair system of voting so that all the interests and wishes of the people of Fiji can be represented in the Parliament as expressed through free, fair and honest elections and for this adopt an Open List Proportional Representation (PR) electoral and Voting System.


• incorporate specific anti-discrimination measures into Fiji's electoral laws to ensure no person is discriminated against by political parties on the grounds of race, religion, gender or circumstances.


• remove the mandatory power sharing arrangement as provided for under the current Constitution.


• reduce the voting age from 21 to 18 years of age.


• maintain compulsory registration and abolish compulsory voting.


• promulgate an Anti-Discrimination Act.


• the electoral systems be removed from the Constitution and enacted as law so that it may be amended and reformed from time to time according to the will of the people. However, the fundamental recommendations of non-ethnic voting, equal franchise and Proportional Representation be enshrined in the Constitution."


Of particular significance is the urging in the document that, "The following key measures and actions must be taken with due priority and urgency." A foot note to this sentence states "For the detailed recommendations and proposed implementation actions, see the Report on the State of the Nation and the Economy." Chapter 1 of the SNE Report is headed "Reform of the Electoral System" which again makes the case of the need for changes. In the end the conclusion is as follows: (pp. 7, 8 of the Report)


"Accordingly, the NCBBF recommends the:


- Abolition of the Communal representation system currently provided for under the Constitution and the Electoral Act 1998;


- the use of the Common roll for all future elections;


- the adoption of the Proportionate Representation (PR) System (using the open list variant) and


- the implementation of these electoral reforms before the next general election, which should be held as soon as is practicable"

(emphasis added)


The draft Charter and the SNE Report, from my reading of both documents, are interrelated, symbiotic at the very least. Time and place of the implementation of the NCBBF recommended electoral reforms in the SNE Report may be assumed as also forming the addendum to the Charter.


There is additional evidence contained in the submission by Counsel for the 4th defendant. At paragraph 15 he submits that,


"... the mandate given by the President, the First Defendant, to the Second Defendant etc; inter alia to "Take our country to democratic elections after an advance electoral office and systems are in place and the political and economic conditions are conducive to the holding of such elections."


The court has not been provided with a copy of H.E. the President's mandate, and is therefore unable to ascertain the correctness or otherwise of the quotation. It is nevertheless, part of Counsel for the 4th defendant submission to this Court and can only lend credence to the overall consideration of whether there is a serious issue raised.


It is therefore clear to this Court, from the evidence before it and from the law, that the following propositions holds true:


(i) the electoral reforms recommended in both the draft Charter and the SNE Report will mean amendments to amongst others, Chapter 6 Part 2 of the Constitution:


(ii) that amendments to the Constitution can and may only be legitimately made pursuant to the Constitutional process set out in Chapter 15 of the Constitution;


(iii) that the pre-requisite to invoking of the provisions of Chapter 15 is the existence of a Parliament;


(iv) that Parliament can only be convened following the holding of a general elections: and


(v) that implementation of electoral reforms recommended under the Charter and the SNE Report, appears to contemplate amendments to the Constitution outside the requirements of Chapter 15.


Having reached this conclusion, the Court agrees that the plaintiffs have satisfied the threshold requirements of a serious issue as laid down in the American Cyanamid. The Court therefore finds that a serious issue arises namely, whether the recommendations on electoral reforms involving amendments to the Constitution, as made by the NCBBF and contained in the draft People's Charter and the SNE Report can and will be implemented outside the Constitution and Parliament.


BALANCE OF CONVENIENCE


The only remaining consideration is the balance of convenience. It is abundantly clear in respect of the action of the interim government that is being challenged, that if it is proven in the subsequent hearing, then the action would be deemed unlawful and unconstitutional. It would in fact amount to the usurpation of the powers of the Parliament. Balance of convenience on public law cases and involving matters of national importance such as amendments to the primary law of the country, the Constitution, cannot be measured in terms of adequacy of damages alone, but the Court must take into account the wider public interest. The claim that the defendants are attempting to bring in changes to the Constitution without proper authority of Parliament is a matter of great public interest. This interest includes the protection of the Constitution and ensuring that any amendments to the Constitution may only be carried out in accordance with the law. In the circumstances of this case, the Court is satisfied that the balance of convenience favours the plaintiffs. Status quo, insofar as ensuring that no changes are made to the Constitution of the Country in the meantime, must be maintained.


The plaintiffs further pray that the defendants be restrained from promoting the draft People's Charter, and the use of public funds and servants for such purpose, to the extent that the objective of such an exercise will be an illegal act, to whit, the amendments to the Constitution without Parliament. Counsel relied on the Court's decision in Koroi v. Commissioner of Inland Revenue [2001] FHC 138, and Koroi & Ors v. Asesela Ravuvu & Ors.


Counsel for the defendants distinguished the Koroi cases on the ground of the recent Qarase v. Bainimarama High Court decision that ruled in favour on the validity of the appointment of the Bainimarama Interim Government. Under it, the present Interim Government exercises full legal authority equivalent to an elected Government. Both Koroi cases according to Counsel, were concerned with caretaker governments only. In any case, counsel submitted that the Acting Chief Justice Hon. Mr Justice Gates in Qarase v. Bainimarama, who had also heard the Koroi cases, distinguished the earlier Koroi v. CIR (supra) as being too narrowly interpreted.


With respect to the learned Counsel for the defendants, the issue at the heart of this proceedings is not about the day to day running of government with financial implications and expenditures, nor does it belong to those categorized by the Court in Koroi v. Asesela Ravuvu (supra) as properly the prerogative of a lawfully elected government. On the contrary, the issue deals with amendments to the Constitution and the role of the Parliament in that process. In fact, the fundamental issue is the supremacy of Parliament in a democracy. It seems to me therefore that any action(s) by the Interim Government and defendants that appears to be in preparation and/or in contemplation of what will be, if carried out, an illegal act, cannot be recognised by a Court of law. This means that any propagation of the electoral reforms recommended under the draft People's Charter for what appears to be an unlawful purpose, this Court finds also to be illegal. In any event, given this Court's understanding that the Qarase v. Bainimarama is on appeal, the law as far as this Court is concerned, remains as laid down by the Court in Koroi v. Asesela Ravuvu (supra).


There remains finally a matter of concern to the Court.


I said that I was going to re-visit the subject of affidavits filed in this proceedings. This is because there is, in my view, a disquieting aspect surrounding the affidavits filed by the defendants. Mr John Samy filed an affidavit. He did so, on his own behalf and on the behalf of the 1st, 2nd and 3rd defendants. Counsel for the 4th defendant did not file any but at the date of the hearing, informed the Court through Counsel, that he chose to rely on John Samy's affidavit. It is of course the prerogative of the parties to decide on whether to make a common affidavit deposed by one on their behalf, or each individually respond with his own. On the other hand the Court, as I had earlier observed, has the discretion to order further affidavits to be filed. It did not do so in this instance. Notwithstanding the non-exercise of that discretion, it would seem to me that it would have been of considerable assistance to this Court in its search to ascertain the truth amidst disputed facts, if those directly involved with decision-making, at the political level, were persuaded to respond to the claims being made by the plaintiffs, through their own affidavits. In the end, the Court had to rely for the Interim Government's and the other defendants' response, solely on the strength of the affidavit of John Samy, the head of the Secretariat of the NCBBF.


ORDERS


In the result, I find that a serious issue has been raised and that the balance of convenience favours the plaintiff requiring that the status quo be maintained until the final decision is made after three hearing of the plaintiffs' Originating Summons.


I therefore make the following orders:


(1) That the Interim Government of itself or by and through the defendants their agents and/or their representatives restrained from promulgating any law, decree order, or doing or recommending anything whatsoever to alter or amend the 1997 Constitution of the Republic of Fiji or do anything whatsoever, including changes to the electoral system, that are contrary or inconsistent with the current provision of the Constitution until the final determination of this matter.


(2) That the Interim Government of itself or by and through the defendants their agents and/or their representatives restrained from distributing articles, leaflets, forms and through announcements, advertisements and publication on radio, television, newspapers and any form of media for the purpose of securing public support for changes to the 1997 Constitution of the Republic of Fiji and/or supporting and promoting the Peoples Charter until the final determination of this action.


(3) That the Interim Government of itself or by and through the defendants their agents and/or their representatives restrained from convening public meetings and gatherings in any part of the country or any form of meeting whatsoever to promote and obtain support for the amendment of 1997 Constitution of the Republic of Fiji and the Peoples Charter generally until the final determination of this action.


(4) That the Interim Government of itself or by and through the defendants their agents and/or their representatives restrained from engaging and utilizing civil servants and government machinery including vehicles, personnel, buildings, office equipments etc to promote and obtain support for the amendments of the 1997 Constitution of the Republic of Fiji and the Peoples Charter generally until the final determination of this action.


(5) That the Interim Government of itself or by and through the defendants their agents and/or their representatives restrained from appropriating and paying any public funds to the NCBBF, its agents and/or representative until the final determination of this action.


The proceedings is adjourned to 10.00a.m. next Tuesday 18 November, 2008 for my directions on the hearing of the plaintiffs Originating Summons.


There will be costs of $1200 to the plaintiffs.


F JITOKO
JUDGE

At Suva
Friday 14th November 2008

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