Ah Koy v Registration Officer for the Suva City Fijian Urban Constituency [1992] FJLawRp 25; [1992] 38 FLR 75 (24 April 1992)

[1992] 38 FLR 75

HIGH COURT OF FIJI

Civil Jurisdiction

JAMES MICHAEL AH KOY

v

THE REGISTRATION OFFICER FOR THE SUVA
CITY FIJIAN URBAN CONSTITUENCY

Scott J

24 April 1992

Constitution- whether applicant entitled to be registered on the Fijian Roll of Voters- whether the applicant's enrolment on the Vola Ni Kawa Bula a decision relating to customary law- Constitution (1990) Sections 100(4), 113, 156 (a); Fijian Affairs Act (Cap 120); Interpretation Act (Cap 7) Section 2 (7) (a).

Following his registration on the Vola ni Kawa Bula the Plaintiff applied to be registered on the Fijian Roll of Voters. Upon rejection of his application the Plaintiff applied to the High Court seeking a declaration that he was entitled to registration on the Fijian Roll. The High Court HELD: the Plaintiff did not satisfy the patrilineal test imposed by the Constitution and furthermore had been wrongly registered on the Vola ni Kawa Bula: he was therefore not entitled to be registered on the Fijian Roll.

Case cited:

Perpetual Executors and Trustees Association of Australia Limited v FCT [1948] HCA 24; (1948) 77 CLR 1

B.N. Sweetman for the Plaintiff
R. Matebalavu for the Defendant
The Solicitor General as Amicus Curiae

Scott J:

In this matter the Plaintiff seeks relief pursuant to the provisions of section 113 of the Constitution. With the exception only of a disagreement as to the existence or otherwise of a custom relating to the registration of part Fijians the facts are not in dispute.

The Plaintiff was born in Fiji. His mother was also born in Fiji but his father was born in China.

Sometime during 1989 the Plaintiff was registered on the Vola ni Kwa Bula. The Vola ni Kawa Bula (VKB) is defined by section 149 (1) of the Constitution to mean:

"The register of native land owning units recording the names of the persons comprising the proprietary unit in respect of any Native Land in accordance with sections 9 (1) and 10 (2) of the Native Lands Act and kept in accordance with section 10 (1) of the same Act".

On 4 September 1991 the Plaintiff applied to be registered as a voter on the Electoral Roll for the Suva City Fijian Urban Constituency. On 13 February 1992 the Defendant received an objection to the Plaintiffs inclusion on the Roll from one Akariva Nabati. The objection was made pursuant to Regulations 24 (2) and (8) of the Electoral (Registration) Regulations (LN42/91). It was on the ground that the Plaintiff was not a Fijian within the meaning of section 156 (a) of the Constitution and accordingly and notwithstanding his admitted registration on the VKB was not eligible for inclusion on the Roll of Fijian Voters established by section 41 (2) (a) of the Constitution.

On 24 February 1992 the Defendant advised the Plaintiff that he had sustained the objection on the ground that the Plaintiffs father was not a Fijian and that accordingly the Plaintiff was not eligible for registration on the "Fijian Roll of Voters".

The Plaintiff now seeks two declarations, the first that he is entitled to be registered on the roll of voters who are Fijians established by section 41(2) (a) and secondly that he is entitled to be registered on the Electoral Roll for the Suva City Fijian Urban Constituency. It is accepted that the second declaration is dependent on the first.

The matter first came before me on 3 April 1992 when I gave a number of directions and also asked the Solicitor General to appear as Amicus Curiae.

The hearing took place on 16 April 1992. I had before me the following affidavits:-

No. 1. Plaintiff ............................................................... 3 March 1992

No. 2. Supervisor of Elections ............................................ 25 March 1992

No. 3. Defendant ............................................................ 2 April 1992

No. 4. Plaintiff ............................................................... 6 April 1992

No. 5. Acting Chairman Native Lands Commission .................... 6 April 1992

No. 6. Defendant ............................................................ 10 April 1992

No. 7. Acting Chairman Native Lands Commission ................... 15 April 1992

At the conclusion of the hearing I delivered the following interim judgment:

"I am of the opinion that section 156 (a) is to be read as one continuous section which does not provide alternative tests for qualification as a Fijian.

I am also of the opinion that Cap.133 gives authority to the Native Lands Commission over Fijians only. For the purposes of Cap. 133 the term Fijian is that to be found in the Interpretation Act. The Plaintiff is not a Fijian within that meaning. He was not eligible for inclusion in the Vola ni Kawa Bula either as all right or by virtue of custom tradition and practice."

I indicated that I would give my reasons for the above judgment on notice which I now do.

The Plaintiffs case comes down to two basic propositions. The first is that section 156 (a) of the Constitution should be taken to consist of two limbs. The first limb contains all those words up to and including the word "Bula" where it first occurs in the section. The second limb begins with the word "and" which occurs after the word "Bula" previously referred to and continues until the end of the section which is the colon after the word "practice". The second proposition is that he qualifies to be regarded as a Fijian under the second limb of the section because (a) he is in fact registered on the VKB and (b) the validity of that registration cannot be questioned in view of the first proviso to the section.

Section 156 so far as is relevant reads as follows:

"Meaning of "Fijian", "Rotuman" and "Indian"

156. For the purposes of this Constitution -

(a) a person shall be regarded as a Fijian if and shall not be so regarded unless his father or any of his male progenitors in the male line is or was the child of parents both of whom are or were indigenous inhabitants of Fiji and his name is registered or eligible to be registered in the Vola ni Kawa Bula and include persons who are registered or eligible to be registered in the Vola ni Kawa Bula by virtue of custom, tradition and practice:

Provided that a person's registration or eligibility for registration on the Vola ni Kawa Bula shall be confirmed or determined as the case may be by the Native Lands Commission whose confirmation or decision shall be final and conclusive.

(b) (Not applicable)

(c) (Not applicable)

Provided that where the identity of the father of any person cannot be ascertained, the male progenitors of that person may instead be traced through that person's mother."

Mr. Sweetman's submissions in support of the two basic propositions are set out in a learned and helpful written submission. Mr. Sweetman argues that section 156(a) as presently drafted makes no sense. In accordance therefore with authority cited it is necessary to "rectify" the section in order to produce a meaning which reflects the legislative intent behind it. Mr. Sweetman pointed out that the Supervisor of Elections on page 2 of a memorandum dated 20 February 1992 which forms part of Annexure G to affidavit No. 2 quoted the Solicitor General as having indicated to him that the legislative intent had been to include two categories of persons within the definition of "Fijian". Mr. Sweetman suggested that the first category would satisfy the patrilineal test as contained in the first limb of the section while the second category would satisfy the second test namely inclusion on the VKB by virtue of custom tradition and practice.

The Solicitor General supported this view and approach. He suggested that the word "and" occurring before the word "include" should actually read "or" and that otherwise no purpose was served by the inclusion in the section of all those words following "Bula" where it first occurs.

In reply Mr. Matebalavu submitted that the meaning of section 156) (a) was clear: a person could only qualify as a Fijian either, where his father was known, by satisfying the patrilineal test or, where his father was not known, by tracing his progenitors through his mother. Since in this case the Plaintiffs father was known he could not trace his progenitors through his mother. In view of the fact that it was admitted that he did not satisfy the patrilineal test he could not be regarded as a Fijian.

In my view and with great respect to both the learned Solicitor General and to Mr. Sweetman the approach adopted by the Plaintiff is unsound. While; I accept that there may have been an intent by someone or some persons at sometime to create two categories of Fijians within section 156 (a) it seems to me that I have to look first at what was actually drafted and decreed. If the actual wording of the section is incompatible with the existence of two limbs then I do not see how I can overlook that incompatibility in favour of what the Supervisor of Elections said he understood from the Solicitor General to have been the legislative intent. Looking then at section 156 (a) I come to a number of conclusions.

First, if it was intended that the section should consist of two limbs then the Draftsman chose a most unusual way of expressing that intention. Normally the two limbs of a section will be clearly separated. Good examples of this are to be found in other parts of the Constitution, for example section 27 (2) (g) where the two limbs are numbered (i) and (ii) and are separated by a semi-colon and the word 'or' which do not appear between what are said to be the two limbs of section 156 (a).

Secondly, the second line of what on the Plaintiffs submission would be the first limb of the section contains the following words:-

"shall not be so regarded unless"

These words in my view are clearly meant to exclude and are incompatible with any other definition of Fijian and hence any other limb.

Thirdly, the contention that section 156 (a) really consists of two alternative limbs is impossible to reconcile with the maxim of statutory interpretation that where there is a conflict between general and specific provisions the specific provision prevails – "generalia specialibus non derogant" (See Perpetual Executors and Trustees Association of Australia Limited v. FCT) [1948] HCA 24; (1948) 77 CLR 1, 29. Since what on the applicants contention would be the first limb contains the specific provision that provision would, if the maxim were applied, prevail over the second provision, the general provision, rather than merely being alternative to it.

In my view the words following 'include' really add nothing to the section and do not create a second category of Fijian. They are merely the results of very poor drafting. Perhaps they have their origin in Section 3 of the Native Lands Act, I do not know. In my opinion section 156 (a) means that before a person can be regarded as a Fijian for the purposes of the Constitution that person must satisfy either the patrilineal test or the matrilineal test whichever is appropriate and must also be registered or eligible to be registered on the VKB. It follows that the Plaintiff who it is not disputed does not satisfy the patrilineal test and to whom the matrilineal test can have no application is not eligible to be regarded as a Fijian for the purposes of the Constitution.

It will be readily apparent that the issue before the Court is, as described by Mr. Sweetman, of considerable constitutional importance, the outcome of which may affect not only the Plaintiff but many other Citizens of Fiji.

It will also be recalled that the Plaintiff put forward two basic propositions, only one of which has been dealt with. In view of the importance of the matter and in view also of the fact that I have arrived at an interpretation of section 156 (a) which does not accord with that of the Amicus Curiae I think it right to examine the second basic proposition in case it should be held that my findings on the first are incorrect.

Assuming therefore for the sake of argument that a person who has been registered on the VKB is ipso facto qualified for registration on the roll of Fijian Voters established by section 41 (2) (a) of the Constitution, is the correctness of the registration on the VKB open to challenge? The Plaintiff says not and relies on the proviso to section 156 (a). Mr, Matebalavu says that Regulations 24 (5) and 24 (8) of the Electoral (Registration) Regulations 1991 empower a registration officer to decide whether a person has in fact been correctly registered on the VKB.

In my opinion the proviso to section 156 (a) does not debar the High Court from considering the limits of the powers of the Native Lands Commission as opposed to the exercise of those powers. In the first place, the presumption in a democratic state like Fiji is that the Commission like every other person or body is subject to the law and must conduct its affairs in accordance with that law.

Secondly, the proviso must be read subject to section 100 (4) of the Constitution which makes it clear that it is only in respect of customary law that the Commission is the final arbiter. As is made clear by the Acting Chairman of the Native Lands Commission in paragraph 5 of affidavit No.5 there are a number of different customs in different provinces of Fiji governing the rules concerning the rights of a person to choose to be a member of either his father's or his mother's land owning unit. So long as the Commission makes a ruling on a matter involving no more than customary law the decision of the Commission cannot be challenged in a Court of Law. Where, however, the Commission reaches a decision which involves not only a ruling on customary law but also a ruling on non customary law then that latter ruling is not protected by section 100 (4) of the Constitution.

In keeping and compiling the VKB the Commission acts not only in accordance D with customary law but also subject to statute. This is clear from section 149 (1) of the Constitution, already quoted, which incorporates references to sections 9 (1), 10 (1)and 10 (2) of the Native Lands Act, Cap. 133. Put simply, the Native Lands Commission in keeping and compiling the VKB must comply with the requirements of the Native Lands Act. If it fails to comply with the Act then that failure is open to review by the High Court.

The question that then arises is whether in registering the Plaintiff on the VKB the Commission merely applied customary law. If it did then, and only then, is its decision final and conclusive.

The affidavit of the Acting Chairman of the Native Lands Commission, affidavit No. 5 already referred to, contains a number of statements of fact relating to Fijian customs. It also contains two paragraphs Nos. 6 and 13 which contain statements of law. Paragraph 13 reveals that the Commission in deciding to register the Plaintiff on the VKB acted in accordance not only with custom but also in accordance with what it took to be the Plaintiffs qualification "as of right under section 21 of the Native Lands Act".

In my opinion the Commission in deciding that the Plaintiff was qualified as of right by the Native Lands Act to registration on the VKB made an error not as to customary law but as to the interpretation of section 21. As is clear from the affidavit the Commission has been under the impression that section 21 enables it to register any illegitimate child. That is incorrect. Only illegitimate Fijian children can be registered on the VKB. Section 21 (1) reads as follows:-

"Notwithstanding anything contained in the Legitimacy Act all Fijians of illegitimate birth shall be deemed to be owners of native land and may be recorded as may seem just and equitable as members of the proprietary units of either their father or mother".

Section 21 must also be looked at in the context of the whole scheme of the Native Lands Act. The purpose of the Act is to provide the legislative structure under which Fijian land ownership and tenure is determined. The VKB is defined by section 149 (1) of the Constitution to be the register of Native Land owning units recording the names of the persons comprising the proprietary unit in respect of any native land. Native Land must be held by native Fijians (See section 3 of the Act). The Solicitor General told me that the term "Vola ni Kwa Bula" literally means "the roll of living Fijians". What then is a "Fijian" for the purposes of the Act and therefore for the purposes of the VKB?

The Act itself contains no definition of the word "Fijian". The definition contained in section 2 of the Fijian Affairs Act (Cap. 120) may be noted in passing since it would be strange if the meaning of "Fijian" varied significantly from Act to Act. The definition in Cap. 120 reads as follows:-

"Fijian' includes every member of an aboriginal race indigenous to Fiji and also includes every member of an aboriginal race indigenous to Melanesia Micronesia or Polynesia living in Fiji who has elected to live in a Fijian village".

The meaning however of the term "Fijian" used in the Native Lands Act is not to be found in the Fijian Affairs Act but in section 2 (7) (a) of the Interpretation Act (Cap. 7) a section which, it is interesting to note, was not amended when the Act itself was amended by Decree 35/89. The Interpretation Act definition is as follows: -

"A person shall be regarded as a Fijian or as a Native if and shall not be so regarded unless, his father or any of his earlier male progenitors in the male line is or was the child of parents both of whom are or were indigenous inhabitants of Fiji or any island in Melanesia, Micronesia or Polynesia."

It is clear that the Plaintiff is not a Fijian within the above meaning of the term. The position therefore is that the Native Lands Commission exceeded its statutory powers in registering the Plaintiff on the VKB. The proviso to section 156 (a) dealing as it does only with customary law has no application. The dispute as to fact referred to in the first paragraph of this judgment turns out to be of no relevance. In the premises, even if section 156 (a) of the Constitution should be construed as having two limbs the Plaintiffs contention that he is eligible for registration upon the Fijian Roll by virtue of his registration on the VKB must fail.

For these reasons both declarations were refused.

(Motion dismissed.)

(Editors Note: a successful appeal against this Judgment is reported at 39 FLR 191)