Koroi v Commissioner of Inland Revenue (No. 1) [2001] FJLawRp 76; [2001] 2 FLR 314 (24 August 2001)

JOKAPECI KOROI, MAHENDRA PAL CHAUDHARY & DR. GANESH CHAND v COMMISSIONER OF INLAND REVENUE, ATTORNEY-GENERAL AND THE REPUBLIC OF FIJI (No. 1)

High Court Civil Jurisdiction
27 July, 24 August, 2001 HBC 179/01L

Constitution - doctrine of necessity - whether re-imposition of Value Added Tax (Essential Food Items Amendment) Decree 2001 is necessary – ratification of decrees – validity and legality of Amendment Decree - whether the caretaker government had the power to advise the President to pass the Value Added Tax (Essential Food Items Amendment) Decree 2001 (Interim Civilian Government Decree No.5); Value Added Tax (Essential Items Amendment) Act 1999 - Act 28/99; 1997 Constitution ss190, 195(1).

Locus standi of applicants – form, admissibility and evidence of affidavit - High Court Rules O.38 r.2(3), O.41 r.9(2), O.41 rr.5(1) & (2)

The Plaintiffs sought a declaration that a Decree re-imposing VAT on the essential food items (Interim Civilian Government Decree No. 5) was invalid. This Decree was made by H.E. the President, acting upon the advice of Cabinet, on 23 January 2001. The Plaintiffs claimed that the Amendment Decree was not made with proper authority, that it was not a measure reasonably required for the making and the orderly running of the Government, and that the Decree impaired the rights of the citizens of Fiji and also affected their rights under the Constitution. Further, the Plaintiffs alleged the caretaker government was itself invalid.

Held–(1) The doctrine of necessity cannot be used to undermine the Constitution, only to reinforce it. The Constitution has been undermined, and the appointment of the Prime Minister and Cabinet are unlawful.

(2) The caretaker government, being unlawful, had no power to advise the President to pass the Amendment Decree.

(3) The AmendDecree seeking to g to reimpose VAT on 6 essential food items is invalid.

(4) It is essential that the incoming Parliament review all of the Decrees made since 1987 and subject them to the normal processes of a bill. A reference tucked away at the end of the Constitution s195(1) to all written laws continuing in force, does not amount to a parliamentary process complying with such a pact.

Declarations answered in the affirmative, a permanent injunction imposed against the re-imposition of VAT on the essential food items and an order that VAT should not be levied or collected made, with effect from 1st September 2001.

[Note: in (No. 2) reported in this volume, the High Court declined a stay application one week later. On appeal, Court of Appeal found s195(1)(e) clearly validates the decree. That section is not to be written down simply by reference to where it appears in the Constitution. Secondly, there are no possible grounds for the Judge finding that all decrees have to be reviewed by Parliament. There are no statutory provisions requiring Parliament to adopt that course. It is not for the court to legislate what Parliament is required to do, thus there is not only no obligation for parliament to "review" the decree, if it attempted to do so other than by a properly enacted amendment or repeal, it would be acting contrary to the Constitution.]

Cases referred to in Ruling
Akuila Yabaki and 7 Others v H.E. President and Attorney-General [2001] HBC119/01S 11 July 2001
Attorney-General (Republic of Cyprus) v Mustafa Ibrahim [1964] Cyprus LR 195
Chandrika Prasad v Republic of Fiji & Attorney-General (No. 4) (2000) 2 FLR 89; [2001] NZAR 21; 1 LRC 665
Chandrika Prasad v Republic of Fiji & Attorney-General (No. 5) (2000) HBC0217/00L 20 December 2000
Chandrika Prasad v Republic of Fiji & Attorney-General (No. 6) (2001) HBC0217/00L 17 January 2001
Ghim Li Fashion (Fiji) Pte. Ltd. v Commissioner of Inland Revenue (2001) HBC0403/98
Gleeson v J. Wippell & Co. Ltd. [1977] 1 WLR 510
Horn v Lockhart (1873) 17 Wallace 570
In the Matter of Kim Industries Ltd. (2000) 1 FLR1 FLR 141
Jilani v Govt. of the Punjab [1972] PLD SC 139
Jokapeci Koroi and 2 Ors v Asesela Ravuvu and HBC 31/01L 15 June 2001
Madzimbamuto v Lo v Lardner-Burke [1968] UKPC 2; [1969] 1 AC 645
Mitchell v Director of Public Prosecutions [1986] LRC (Const.) 35
R v Greater London Council: Ex parte Blackburn [1976] 1 WLR 550
R v IRC Ex parte National Federation of Self-Employed and Small Business Ltd. [1981] UKHL 2; [1982] AC 617
Re Dr. Tunde I. Ogowewe [2000] B.I.I.C.L
Republic of Fiji v Chandrika Prasad (No. 2) (2001) ABU0078/00S 1 March 2001; [2001] 2 LRC 743
Sallah v Attorney-General 20 April 1970 (unrep) reprinted in 2S0 Gyandoh, Jr. and J Griffiths, A Sourcebook of the Constitutional Law of Ghana (Accra) (1972) 493
State v Audie Pickering (2001) HAM007/01S 30 July 2001
State v Dosso [1958] 2 SCR 180
State v H.E. The President and 4 Others ex parte I.I.A. Khan (2000) 1 FLR 241
Texas v White (1868) 74 Wallace 700
Uganda v Commissioner of Prisons ex parte Matovu [1966] EA 514

Vipul Mishra for the Plaintiffs
Amani Bale for the First Defendant
William Calanchini with Sunil Kumar for the SecondnDefendant

24 August, 2001

RULING

Gates, J
This is a case aboe validity of a fiscal measure brought into being by the caretaker government. It concerns erns the Value Added Tax (Essential Food Items Amendment) Decree 2001 (Interim Civilian Government Decree No. 5). This Decree was made by H.E. The President, acting upon the advice of Cabinet, on 23 January 2001. It is stated at section 1(1) "to be deemed to have come into force on 1st January 2001", that is retrospectively by a little over 3 weeks. The Coalition Government had originally exempted certain essential food items and the services of water and sewerage as a poverty alleviation measure from the tax net of the VAT regime. This had been done by passage of a bill through Parliament which received the President's assent on 9 November 1999 and which took effect on 1st January 2000 as The Value Added Tax (Essential Items Amendment) Act 1999 [No. 28 of 1999].

The challenge to the Decree is brought in an originating summons dated 26th June 2001. It is supported by two affidavits, the first by Dr. Ganesh Chand, sworn on 25th June 2001 and filed on 26 June 2001. The second was by Dr. Gunasegaran Gounder and was sworn and filed on 24 July 2001. Dr. Chand is the 3rd named official of the Fiji Labour Party who brings this action on his own behalf and on that of the Fiji Labour Party. Dr. Chand was a Member of Parliament and the Minister of National Planning, Local Government, Housing, and Environment in the Coalition Government. Jokapeci Koroi, the 1st named official, is the President of the Fiji Labour Party. The 2nd named official is Mahendra Pal Chaudhary, a Member of Parliament in the last Parliament, and Prime Minister, and now Secretary of the Fiji Labour Party.

The 1st Defendant opposes the summons and has filed the affidavit of Sefanaia Tui Mailekai, the Chief Executive Officer of the Fiji Islands Revenue and Customs Authority. This was sworn on 6 July 2001 and filed on 9 July 2001. The summons was opposed also by the 2nd Defendant, who filed the affidavit of Ratu Jone Yavala Kubuabola, the Minister of Finance in the caretaker government. This was sworn and filed on 20th July 2001.

The summons sought the following orders:

a) A declaration that the removal of the exemption by the interim and/or caretaker Government headed by Mr. Laisenia Qarase is unlawful and/or without proper authority.

b) An Injunction restraining the 1st Defendantf from enforcing payment of Value Added Tax on the following items:

(i) Tinned fish

(ii) Flour and Sharps

(iii) Powdered Milk

(iv) Edible Oil

(v) Rice

(vi) Tea

(vii) Supply by the State of Water and Sewerage Services

c) An Order that all monies collected and/or enforced by the Defendants under the Value Added Tax (Essential Food Items amendments) Decree 2001 (Interim Civilian Government Decree No. 5 be refunded to all taxpayers involved.

d) That the Defendants do pay damages to the Plaintiffs

e) That the Defendants do pay the Plaintiffs costs of this action.

f) Such further and other relief (as this) Honourable Court seems just

Meanwhile on 10th July 2001 I refused to grant the Plaintiff an interim injunction which had been applied for on an interlocutory summons. The affidavits in opposition and then in reply, and written submissions, were filed subsequently, and the matter came on for full argument on the originating summons on 27th July 2001.

Water and Sewerage Services
The originating summons seeks an injunction restraining the 1st Defendant from enforcing payment of VAT on essential food items (as listed) and at paragraph (b)(vii) of the summons, from enforcing VAT on the supply by the State of water and sewerage services. The Coalition Government exempted from VAT water and sewerage services by virtue of paragraph 23 of the Second Schedule, a new paragraph added by the 1999 Act to the VAT Decree of 1991. Paragraph 22 exempted the essential food items listed.

However the Interim Civilian Government Decree No.5 put back VAT only on the essential food items. It repealed paragraph 22 of the Second Schedule, not paragraph 23. It did not put back VAT on "the supply by the State of water and sewerage services". Water and sewerage remain exempt. That part of the orders sought therefore does not require the consideration of this court. Focus need only be on the essential food items amendment.

Standing of Applicants
No point is taken by the Defendants on the standing of the Plaintiff to bring this action. Clearly the Plaintiff would succeed in gaining access to the court as of right and also under the discretionary tests. I canvassed the issue of standing or locus standi at some length in Prasad v Republic of Fiji & Another now reported at [2001] 1 LRC 667 at pp 676-80; [2001] NZAR 21 at pp 31-35; and in Chandrika Prasad v Republic of Fiji & Anor. (unreported) Lautoka High Court HBC0217/00L 15 November 2000 at pp 10-16. Two authorities are pertinent which were cited in the Chandrika Prasad judgment. In R v Greater London Council: Ex parte Blackburn [1976] 1 WLR 550 Lord Denning MR had this to say at p 559:

"I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government or department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty's subject, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate."

In R v IRC Ex parte National Federation of Self-Employed and Small Business Ltd. [1981] UKHL 2; [1982] AC 617 (the Fleet Street Casuals case) Lord Diplock at p 644 said:

"It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The Attorney-General, although he occasionally applies for prerogative orders against public authorities that do not form part of central government, in practice never does so against government departments. It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge" (my underlining)

The Fiji Labour Party, like any other political party, is an appropriate applicant for the bringing of a challenge to the lawfulness of a purported law. Additionally it was the Fiji Labour Party's own measure when in Government that has been revoked by the caretaker government, which provides an enhanced interest for the Plaintiffs in seeing the measure it had passed retained.

Form and Admissibility of Affidavits
The Plaintiffs counsel takes issue on the 2 affidavits filed by the Defendants, and he raises two arguments in challenge. First he refers to the form of the affidavits which is non-compliant with the High Court Rules. The affidavits are not properly indorsed [Order 41 r.9(2)]. Much has been said on this particular type of defect over the last year - see In the Matter of Kim Industries Ltd. (unreported) Lautoka High Court Winding Up No. HBF0036.99L 7 July 2000 pp 1-4; The State v H.E. The President and 4 Others (unreported) Lautoka High Court, Judicial Review No. HBJ007/2000L 12 October 2000 at pp 9-10; Chandrika Prasad v Republic of Fiji (supra) [Ruling on Respondent's summons for stay pending Appeal (No. 2)] 20 December 2000, and again in [Ruling on Proposed Interested Party's Joinder Application] 17 January 2001 pp 2-3. Other judges both in Fiji and overseas have referred similarly to this type of defect - see Gleeson v J. Wippell & Co. Ltd. [1977] 1 WLR 510 at 519C. These mistakes are of little consequence to the actual conduct of the litigation. But since the settling of the format of an affidavit, a vehicle for the presentation of succinct evidence to the court, is a relatively simple exercise, these errors should no longer persist. I note the Attorney-General's Chambers have appeared in three of the above matters. Accordingly affidavits emanating from those chambers now should be beyond criticism. The two offending affidavits which breach the mandatory rule are to be removed from the court file and re-submitted with the correct indorsement. This is to be done within 14 days. I note that both Defendants are exempt from court filing fees. Meanwhile I overrule the Plaintiff's objection and grant leave to the Defendants pursuant to Order 41 r. 9(2) for their affidavits to be used in this action.

The second objection is more substantial. It is said that the affidavits rely heavily on statements of opinion, and do not provide a factual basis for such opinions. In effect they do not provide the necessary underpinning evidence. In failing to do so they offend Order 41 rule 5(2). Order 41 r.5 states:

"5.(l) Subject to Order 14, rules 2(2) and 4(2), to Order 86, rule 2(1), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof."

A similar issue arose in the joinder application of the proposed Interested Party in Chandrika Prasad, 17th January 2001 (supra at pp 5-12). In that matter, application was being made for joinder by the proposed Interested Party for him to be joined in an originating summons action for purposes of appeal. Here the affidavits are tendered as evidence in the originating summons hearing itself pursuant to Order 38 r.2(3). The affidavits comprise the evidence for the trial of the action which is conducted by way of originating summons. Strictly speaking the affidavits should therefore comply with Order 41 r.5(l), and they should "contain only such facts as the deponent is able of his own knowledge to prove." Settling the contents of an affidavit to keep within the rules ofadmissibility is obviously a more difficult task than that of arranging the form correctly.

In Chandrika Prasad (17 January 2001) at p8 I had said:

"Of course the courts will act on less than satisfactory evidence when the gravity and urgency of the matter demand it."

I gave examples from the cases. In this matter, I find there is both gravity and urgency. Accordingly I am prepared to overlook clear breaches of the rules of evidence in the evidence as presented by the Defendants in support of their cases.

Evidence from the Affidavits
Dr. Chand states in his affidavit that the Fiji Labour Party won 37 parliamentary seats in the General Election of 1999. The party therefore had an overall majority in the House of Representatives, an assembly with 71 seats in all. The party proceeded to form a Coalition Government with other political parties.

The relevant exemption from VAT was presented to Parliament as one of the measures upon which the Plaintiffs had campaigned and won the 1999 General Election. However on 19 May 2000 George Speight and his band forced their way into Parliament. They took Coalition members hostage including Dr. Chand and Mr. Chaudhary. The hostages were imprisoned under rebel guard at the Parliament for 56 days. The rebels sought to abrogate the Constitution, dismiss the President, swear in their own nominee, appoint their own Ministers, and take over the running of the country. On 19 May 2000 H.E. The President Ratu Sir Kamisese Mara declared a State of Emergency. The President appeared to take over executive control, that is until 29 May 2000. On that day the Military Commander Commodore Bainimarama declared martial law and announced he was taking over Executive Authority of government. The Commodore, says Dr. Chand:

(a) purported to make and gazette certain decrees and purported to abrogate the Constitution of Fiji

(b) held or caused certain talks to be held from time to time between Fiji Military Forces and the hostage takers and finally achieved release of the hostages held in captivity at Parliament House on the 12th and 13th of July, 2000

(c) thereafter handed Executive Authority to an un-elected Civilian Group called the Interim Government.

On 15th November 2000 this court gave judgment for the Plaintiff in Chandrika Prasad (supra) holding that the Constitution had not been abrogated. On 1st March 2000 the Court of Appeal ruled against the Interim Administration and made the following orders:

( i) The 1997 Constitution remains the supreme law of the Republic of the Fiji Islands and has not been abrogated.

(ii) Parliament has not been dissolved. It was prorogued on 27 May 2000 for six months.

(iii) The office of the President under the 1997 Constitution became vacant when the resignation of Ratu Sir Kamisese Mara took effect on 15 December 2000. In accordance with Section 88 of that Constitution, the Vice-President may perform the functions of the President until 15 March 2001 unless a President is sooner appointed under section 90.

None of these facts appears to be in dispute.

The Plaintiff asserts that the Decree re-imposing VAT on the essential food items (ICG Decree No. 5) was not lawful, or made with proper authority, and that it was not a measure reasonably required for the making and orderly running of the Government. It is also claimed that the Decree impaired the rights of the citizens of Fiji and affected their rights under the Constitution. Lastly it was said the caretaker government was itself invalid. The effect on the poor of such a re-introduction of tax is not a matter central to these issues. The court's examination is largely to be confined to the lawfulness or otherwise of the caretaker government's decree. It is not concerned with the policy or the philosophy behind the litigants' actions.

The Commissioner of Inland Revenue in his affidavit states at paragraphs 12 and 13:

12. It is apparent from the above that the powers of the Commissioner of Inland Revenue does not include making Policies in respect of revenue matters.

13. Its role is merely to provide technical advice to the Ministry of Finance.

The Commissioner said that "VAT was introduced in 1992 as part of the reform of the taxation system." His affidavit went on to explain why he considered VAT to be an efficient modern method of tax collection. He set out briefly what the Peoples Coalition Election Manifesto 1999 had said on revenue policy changes. He included a table with a column providing his comments on the impact each measure would likely have on the poor. It must be said this was of the most simplistic nature. In his affidavit in reply, Dr. Gounder provided the following factual response (at paragraph 3):

'The said table was considered carefully and was rejected by the said Cabinet Subcommittee. I was part of that sub-committee. The basis of the rejection was that the foundation for the analysis and the analysis itself was weak."

Dr. Gounder provided evidence that Australia also exempts basic foods from its Goods and Services Tax. Apparently the United States of America excludes such items from its sales tax too.

Mr. Mailekai argued in his affidavit that the reasons for the Coalition Government's exemption, namely to bring down prices and to help the poor, were not supported. At paragraph 41 he stated:

"People with plenty of money gained even more as they could buy more of these goods than poor people could."

Whilst I concede a rich man might be addicted to tea, there is a limit to how much edible oil, sharps or indeed tinned fish can be downed by one man. The Commissioner went on to say the exemption was unfair on shopkeepers. It benefitted everyone, not just the poor. He estimated annual revenue loss from the exemption at $40 million. No figures were provided in support of this statement. He said "In summary, the exemptions of VAT were expensive and benefitted the rich more than the poor." He insisted in several places throughout his 76 paragraph affidavit that his role was "merely one of the administration and collection of tax under the Income Tax Act," and added:

"I cannot however comment on whether the withdrawal of the exemption of Value Added Tax is causing the population most distress and misery as my expertise on such matters is only limited to the administration and collection of such taxes".

Quite apart from any doubts I may harbour on the paucity of supporting facts and reasoning for the policy of re-imposition put forward, this witness stated (at paragraph 74) "the Commissioner of Inland Revenue is not in a position to decide on policy matters as its role is primarily enforcement and collection." To give advice to the Government of the day on the efficiency of any particular taxation measure would seem to be within the Commissioner's role, even if it is not for the Commissioner to decide which tax measure should be imposed. His role as a public servant must needs be politically neutral. This role has not changed with the creation of the new public Authority. The witness therefore crossed the line in stating "However as already explained in paragraphs 41 to 54 of my affidavit the Government of the day is doing all it can to help the poor." This is advocacy rather than fact. Such a statement should not have appeared in the affidavit of the Commissioner whose duty it is to remain professionally neutral, detached and independent of the Government of the day. Public Servants, and those carrying out public service functions, should remain aloof from the propagandizing of policy. It is the duty of counsel in assisting such witnesses with the drafting of affidavits to ensure the witness deposes to relevant facts only, rather than to a series of argumentative assertions which might compromise the witness' public service impartiality. Counsel, not the witness, will argue the case arising from the witnesses' evidence. The court needs to have from the witness the facts alone so as to provide the necessary foundation ultimately for an informed decision. There was a sparsity here of relevant facts as opposed to assertions or opinions, a matter to which I shall return later.

I deal now with the affidavit of the Minister of Finance. Ratu Jone Yavala Kubuabola was a Minister first in the Interim Civilian Government. Following the decision of the Court of Appeal, he says he was re-appointed "together with my colleagues by His Excellency the President, Ratu Josefa Iloilo Uluivuda to run the executive arm of the government of Fiji until fresh elections are held." He said (at paragraph 7(i)) the re-imposition of the VAT had enabled his government to:

• Reduce the marginal rate for individuals for all income tax brackets;

• Increase the level of income a taxpayer has to earn before he or she is obliged to pay income tax, from $3,000 to $6,500 i.e. benefiting low income earners;

• Removal of indirect taxes such as basic tax of 2.5%, hotel turnover tax of 10%, miscellaneous services turnover tax of 10%, and,

• Sharply decrease fiscal and excise duties for a wide range of imported and exported items.

VAT collected was an increasing percentage of total revenue collected, and was expected to reap 27.4% of all revenue collected for 2001. It was the budget of November 2000 that foreshadowed the re-imposition of the VAT on essential food items. He said (at paragraph 7 (m)):

"As at the time of preparation of the 2001 Budget, the anticipated shortfall in Government revenue required for provision of basic services such as health, education, security and public service was calculated to substantially exceed $F40 million being a shortfall arising by 31/12/2000 should no remedial action be taken."

However the shortfall, if there was a shortfall, would have occurred prior to the re-imposition which was to take effect retrospectively, after being made on 23 January 2001, on 1st January 2001. There was a need "should the said shortfall occur", to re-impose the VAT on the food items, "as no other alternative to some increase in taxation existed, to ensure continuance of basic services". He said "the option of no tax increase of any sort was not an option in view of the impact of the events of May 19th and their aftermath." The Minister accepted that whatever extra taxes were imposed "would have been subject to strictures as to validity". On the effect on the poor, Ratu Jone explained (at paragraph 9):

"I would point out that the poor in particular have dire need of the vital services which the tax increase enabled to continue, and in particular the poor as well as the rich enjoyed the security brought about by additional vital security spending.

He said it:

"was a necessary move to provide funding for essential services. That move would not have been made at the time when it was made, had it not been for the imperative necessity to fund essential services. The move was not doctrinal or political. It did not represent a policy adopted whim of the interim Government. It was a functional response to a desperate situation. In so far as any discussion occurred as to the relative and respective merits of protection of the poor by retention of exemption, and protection of the poor by taking of other steps, that discussion was incidental and explanatory only of the impact of a step which was already crucial." (emphasis added)

At paragraph 17 he said:

"That is obvious that during the cause (sic) of the year without this income from VAT there would be $40 million less with which to pay the countries bills."

And at paragraph 19:

"There was also less money being collected from income taxes and fiscal duties."

There were no comparative figures given or exhibited to show the extent of losses to revenue for the years 2000 and 2001, or to demonstrate the extent of the improvement following the re-imposition of the VAT on the essential food items.

Before leaving this affidavit, I have some further observations on it. I have referred to its lack of mandatory indorsement, its lack of attributed sources and its lack of specific and probative facts to constitute credible evidence which would carry weight in the action. The affidavit purported to exhibit to it copies of the two budgets, referred to at paragraph 7 (iii). Neither was in fact exhibited. This was not picked up by the Commissioner for Oaths before whom the Minister swore the affidavit. Additionally, the jurat omitted to state where the swearing of the affidavit had taken place. Lastly the Barrister and Solicitor who took the oath as Commissioner for Oaths appears not to have understood what function she was performing for she crossed out Commissioner for Oaths on the affidavit where it was typed below her signature and replaced it with her name and wrote in "Barrister and Solicitor, High Court of Fiji." None of these errors should have occurred.

The nature of a Constitution
Before considering the doctrine of necessity it is important to ponder first on the nature of a Constitution. In writing of Fiji's Constitution in Prasad [2001] 1 LRC 665 (at p 693) I had said:

"Procedure for making changes to the Constitution

Man long ago realised that he could not live in a world without laws. In order to defeat tyranny, despotism, untrustworthy and arbitrary princes, robber barons, provincial nabobs and court favourites, he came to see a capacity for good governance in the state was to be had through the assistance of a constitutional document. In some countries such supreme law was unwritten but obeyed as a matter of established convention, and upheld and developed by the courts. Most countries nowadays have a written Constitution as does Fiji.

Fiji's 1997 Constitution is to be described as rigid or inflexible, as opposed to flexible within the categorisation of Bryce (Studies in History or Jurisprudence (1901)) (see also Dicey Introduction to the Study of the law of Constitutions (10th edn. I960)). It is also a supreme Constitution as opposed to a subordinate one within the Wheare categorization. Fiji's Constitution states in s.2(l) that it is supreme. As with that other rigid Constitution, the United States Constitution, Fiji's Constitution has special procedures for the making of alterations to it (see Ch. 15).

Section 190 states: "This Constitution may be altered in the way set out in this chapter and may not be altered in any other way." The purpose of such a provision is to ensure due and careful consideration before the supreme law of the land is changed, including the safeguard of a two-thirds majority of both Houses, 60-day lapses between the second and third readings of bills so as to allow for proper debate, and provided certain veto provisions are not exercised against the Bill.

It is obvious that an usurpation of the power of Parliament, that is the Parliament consisting of the President, the Senate and the House of Representatives, by subverting or abrogating the Constitution does not amount to an amendment within the supreme law."

Change to the Constitution is not to be achieved lightly, perhaps because the Constitution is the supreme law of the land, and a law that towers over all other laws in significance. Washington Irving who was called to the Bar in 1806 and whose range of writings veered from the profound histories of Columbus to the light-hearted miscellany "Rip Van Winkle" provided an unsettling observation on the supposed advantages of change. He said:

"I have found when travelling in a stage coach, that it is often a comfort to shift one's position and be bruised in another place."

In 1770 Horace Walpole wrote apropros all-knowing tinkerers:

"Everybody talks of the constitution, but all sides forget that the constitution is extremely well, and would do very well, if they would but let it alone."

In Texas v White (1868) 74 Wallace 700 at p 725 Chase CJ said:

"The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States."

The American Constitution has been amended on several occasions during its long history, but for that lengthy period of its existence it has suffered surprisingly few amendments.

The Constitution's very indestructibility is part of its strength. It is not possible for any man to tear up the Constitution. He has no authority to do so. The Constitution remains in place until amended by Parliament, a body of elected members who collectively represent all of the voters and inhabitants of Fiji. During a period of dire emergency it may endure suspension, if such a suspension will ultimately see the Constitution supported, and ensure its re-emergence. Such a situation occurred in Fiji following the events of 19 May 2000: Republic of Fiji v Prasad [2001] 2 LRC 743 (the Court of Appeal).

Even in the case of a Glorious Revolution the provisions in the Constitution for constitutional amendment must eventually be followed. The doctrine of necessity may come to the aid of such a revolution in its earliest days. But the Constitution never goes away and can never be dismissed or abrogated in a Decree or Proclamation.

In this respect it has the quality of the Holy Books. The books themselves may be torn up, but the precepts and the teachings are indestructible, memorised by their adherents. The man lying tortured on the rack may be forced to say whatever his torturers may wish him to say, but his inner thoughts remain unchanged. The fundamental law represented in a Constitutional document may only be changed in accordance with that Constitution. The Constitution provides for its own mutation. Usurpers may take over as they have in other jurisdictions and in some cases rule for many years apparently outside of, or without the Constitution. Eventually the original order has to be revisited, and the Constitution resurfaces - see Dr. Tunde I. Ogowewe in [2000] B.I.I.C.L: "The Creation and Amendment of Constitutional Norms;" Chapter 13 Why the Judicial Annulment of the Constitution of 1999 is imperative for the survival of Nigeria's Democracy. Even the Glorious Revolution must eventually be tamed by the Constitution. For the courts cannot pronounce lawfulness based simply on the will of the majority. Nor can lawfulness be accorded to the tyranny of the mob. That way leads to the guillotine. Such tyranny lacks universal morality and the courts will not assist usurpers simply because they are numerous, powerful, or even popular.

A proper role for the courts when extra-constitutional change occurs is to pronounce on matters of necessity, where actions have been taken whilst accompanied with sufficient justice and rightness - see Jilani v Govt. of the Punjab [1972] PLD SC 139. Even then the supreme law can only be changed securely by traversing the path provided for such change within the Constitution. Decrees or proclamations purporting to abrogate the Constitution, or to act in conflict with it, are of no effect and are unlawful. They are made without the scrutiny, debate and approval of parliament. The people will only accept laws imposing taxes, imposts, penalties and punishments upon them if such imposition had the approval of their elected representatives in Parliament. It was because of this failure to accord representation that the Bostonians tipped their much valued chests of imported tea into the harbour, one of the incidents culminating in the American War of Independence. They refused to pay the taxes on tea importations, imposed by the English Parliament. "No taxation without representation" was their simple riposte to the demands for excise duty.

Unruly persons are unlikely to seek validation for their usurpations from judges. Nor should the courts give their sanction when application is eventually made under the doctrine of effectiveness, for there is no moral force behind it. In this regard, I respectfully differ from Kelson. Judges should expect and anticipate that the usurpers will see them removed. So be it. Judges do not represent the law. The doctrine of effectiveness has no moral underpinning, and judges do no honourable business therefore in according lawfulness to de facto administrations. The Pakistani cases recognised this indispensable factor, the need for the presence of Godliness (goodness to some), justice, and rightness. In Jilani (supra at p 182) Hamoodur Rahman CJ said:

"The functional Head of the State is chosen by the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system 'the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it.'"

If therefore the regime, which the judges are asked to validate, and to declare lawful, is fundamentally wrong, invalid and unlawful, the judges cannot grant it a lawful status no matter how powerful, effective, or even popular it might be. If it were all that it desired to be, the new regime through its popularity would acquire for itself a validity through Parliament, and the courts could then pronounce in its favour, as happened in Uganda v Commissioner of Prisons ex parte Matovu [1966] EA 514.

But the judges would be superfluous if all they must do is to pronounce "might right" in the face of a powerful usurper. The usurper might rule, but that is not a basis for according lawfulness. This approach is closer to municipal rather than to international law. "Recognised as lawful" as opposed to "lawful" is quite a different concept with due respect to Lord Reid in Madzimbamuto v Lardner-Burke [1968] UKPC 2; [1969] 1 AC 645 at p 723, a decision made in what now appears a very different climate from that existing today worldwide with regard to Human Rights, good governance, and accountability, a shift recognised in Prasad by the Court of Appeal, Fiji at p30. It is significant that in Uganda v Commissioner of Prisons ex parte Matovu [1966] EA 514, a case relied on by Lord Reid, the new constitution had indeed been ratified by Parliament. For that reason legality was achieved through lawful process. But the annulment of an existing Constitution does not by its annulment thereby confer legality on, and validate, the new legal order as had been held in The State v Dosso [1958] 2 SCR 180. Although the Court of Appeal in Fiji was prepared to entertain an application for validity under the doctrine of effectiveness, the attitude to would be usurpers is fast changing. It is to be hoped however that the Court of Appeal will not be called upon again to revisit this doctrine. As Dr. Ogowewe reports, it will be interesting to see how the Supreme Court of Nigeria deals with the challenge to the 16 years of military rule in Nigeria now ended, and to see what will remain of validity for the Decrees of those years. He compares the situation in Estonia, an extreme case, width that of Nigeria. In his article (supra) at p 285 Dr. Ogowewe said:

"Consider the constitutional history of Estonia. The republic of Estonia was declared on 24 February 1918 and a constitution was adopted in 1938. It was invaded and occupied by the Soviet Union on 17 June 1940. The occupation and usurpation lasted over 50 years. However, on 20 August 1991, Estonia, in recognition of the fact that the will of its people as enshrined in its Constitution of 1938 did not disappear even after 51 years of occupation by usurpers, re-established its independence on the basis of historical continuity of statehood and adopted a constitution on the basis of Article 1 of the Constitution of 1938. If 51 years of unconstitutional rule could not make Estonia's Constitution vanish, why should 16 years of unconstitutional rule make Nigeria Constitution of 1979 disappear?"

And of Nigeria's situation (at p 287) he said:

"Since the Constitution could not be made to disappear by fiat, the courts have a duty under it to enforce its provisions. Therefore to assert ill at Decree No. 63 of 1999 repealed the Constitution of 1979 is to accept that a decree can abrogate the will of the people. This proposition only needs to be stated to be rejected."

In commenting on Kelson's theory, Apaloo JA in the Ghanaian case of Sallah v Attorney-General 20 April 1970 (unreported) reprinted in 2S0 Gyandoh, Jr. and J Griffiths, A Sourcebook of the Constitutional Law of Ghana (Accra) (1972) 493 said:

"We should fail in our duty to effectuate the will of the Constituent Assembly if we interpreted the Constitution not in accordance with its letter and spirit but in accordance with some doctrinaire juristic theory."

Even in an extreme case, where a usurper leaves behind nothing of the past, the original Constitution remains submerged. When the usurper withdraws, it will re-emerge. During the rule of the usurper, judges may choose to accord validity to the usurper's rule under the doctrine of effectiveness, although I have indicated the world trend is against according legitimacy in these circumstances. Since Judges are dispensable it would seem to be more a doctrine of expediency, at least for them, if not for the litigants and the general public. And then the pendulum swings.

The Doctrine of Necessity
The two relevant authorities governing the extent of powers of an interim or caretaker government, unhooked from democratic constitutional rule are Horn v Lockhart (supra) and Madzimbamuto (supra). In Horn the court said at p 580:

"We admit that the acts of the several States in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary states touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution."

In Madzimbamuto, Lord Pearce said at p 732:

"I accept the existence of the principle that acts done by those actually in control without lawful validity may be recognised as valid or acted upon by the courts, with certain limitations namely (a) so far as they are directed to and reasonably required for ordinary orderly running of the State, and (b) so far as they do not impair the rights of citizens under the lawful... Constitution, and (c) so far as they are not intended to and do not in fact directly help the usurpation."

The Court of Appeal, Fiji in Prasad at p 48 accepted both passages as correct statements of the law governing intervening acts.

These considerations were similarly echoed in the formulation of the doctrine Haynes P in Mitchell v Director of Public Prosecutions (1986] LRC (Const.) 35 at p88:
"I would lay down the requisite conditions to be that:

(i) an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the State:

(ii) there must be no other course of action reasonably available;

(ii) any such action must be reasonably necessary in the interest of peace, order, and good government; but it must not do more than is necessary or legislate beyond that;

(iv) it must not impair the just rights of citizens under the Constitution;

(i) it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such."

In Cyprus in the case of Attorney-General (Republic of Cyprus) v Mustafa Ibrahim [1964] Cyprus LR 195 Josephides J. in the Court of Appeal said:

"the doctrine of necessity in public law is in reality the acceptance of necessity as a source of authority for acting in a manner not regulated by law but required, in prevailing circumstances, by supreme public interest for the salvation of the state and its people. In such cases 'salus populi' becomes 'suprema lex'"

In his recent judgment in Akuila Yabaki and 7 Others v H.E. The President and the Attorney-General (unreported) Suva High Court Civil Action No. HBC119 of 2001S; 11 July 2001 Scott J. applied the doctrine of necessity. His lordship granted the first declaration sought namely, that the President had failed to summons Parliament in accordance with the Constitution. The judge then refused the 3 other declarations sought, that the dismissal of Mr. Chaudhary as Prime Minister, the dissolution of Parliament, and the appointment of Senator Qarase as Prime Minister and the appointment of the Ministers to the Cabinet, had all been inconsistent with the Constitution.

It was not clear however on what basis Scott J. had applied the doctrine to each of the Declarations concerning adherence to the Constitution. With respect, there was no separate consideration and analysis of the reasons for each of breaches, the declaration of a State of Emergency, its continuance, the appointment of the President, the failure to continue with Mr. Chaudhary as Prime Minister, the appointment of another Prime Minister, and the appointment of the Cabinet, indeed the decision of the President to rule without Parliament rather than through the democratic process provided by the Constitution [see too Presidential Proclamation No. 2 of 2001 extraordinary Fiji Government Gazette, Friday 3rd August 2001 p631-2 - a hybrid document of startling ambiguity]. None of these steps was analysed to examine the impediment in each case to lawful application. In toto, the judge concluded (at p. 16):

"It will be appreciated from the foregoing that with the exception of Declaration A I am not satisfied that the relevant sections of the Constitution must in every situation be interpreted in the strict manner advocated by the Applicants. In some unusual or extreme situations a departure from the normal requirements of the Constitution is in my opinion permitted.

As those of us with even a little general knowledge know under extreme conditions the rules governing normal situations tend to break down. This is the experience of physicians, mathematicians, psychiatrists and sociologists. It is also the experience of lawyers.

In law, as I have already mentioned, this departure is justified under what is known as the doctrine of necessity."

He rejected Ratu Meli Vesikula's soldierly assessment of the situation: Ratu Meli had said on the law and order situation (at p21):

"First, 1 do not believe that there would have been any disorder, particularly if the President have properly explained why such a course of action was necessary or desirable. Second, between the Military and the Police there should have been a plan of action to deal with any trouble. The State of Emergency has been continued. Curfew could be re-introduced. Most of our urban centres have limited access that could have been controlled."

His lordship ended (at p25):

"I do not believe that it would be feasible to turn back the clock to May 2000 or even to March 2001. I believe that it would create a legal and administrative nightmare. I also accept the evidence of the Respondents that it would create a wholly unacceptable risk to the peace and welfare of the nation. I find that such departures from the normal requirements of the Constitution as occurred in relation to Declarations by C and D were justified on the grounds of necessity. I do not accept as suggested by Sir Vijay that to excuse these actions amounts to giving a charter to terrorists. Such pessimism is, on my evaluation of the materials before me, unwarranted"

Finally, his lordship advised against "excessive legalism". This was a surprising observation, with respect, in relation to the supreme law. The country had suffered deaths, riots, huge losses of property, the ransacking of the TV Station and of its capital city, abuses of human rights and serious loss of jobs and major disruption of the economy. Could the country not expect the upholding of its Constitution and the Rule of Law?

When the ordinary man or woman in the street expects the rules for the General Elections to be strictly complied with, as indeed is insisted on in rugby, does anyone complain of excessive legalism? How much more important is it then, that the Constitution be applied faithfully and accurately, when and where it clearly can be applied without difficulty? With respect I cannot follow the application of the doctrine of necessity in the Yabaki decision and I derive no assistance from it. There is a danger in allowing the doctrine of necessity to degenerate into a doctrine of convenience, a doctrine to avoid awkward or embarrassing situations. That is not the doctrine of necessity. The result of applying the doctrine in this way is that it offends Haynes P's test in Mitchell where his lordship warned '"it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such". Whilst the usurper Cromwell had said:

''If nothing should be done but what is according to law, the throat of the nation might be cut while we send for someone to make a law,"

Cromwell had also commented disparagingly on the excuses men give for breaking the law. In this regard he said (on 12 September 1654):

"Necessity hath no law. Feigned necessities, imaginary necessities... .are the greatest cozenage that men can put upon the Providence of God, and make pretences to break known rules by."

Was the re-imposition necessary?
As Haynes P made clear in Mitchell it is for the party seeking to establish validity to prove compliance with the necessary conditions. Neither Defendant has placed before this court evidence that descends to sufficient particulars of "a desperate situation" in the Treasury to call for the re-imposition. Indeed the court has been given opinions merely as to the current state of affairs. But it is for the court to decide upon the evidence presented whether the re-imposition was part of "regular administration" or whether it amounted to a "reform". In a time of caretaking the wheels of administration can be turned, but no act w-ill have authority if it goes beyond the routine. Theirs is but a caretaker administration with no power or authority to introduce new schemes to take us further along the path of prosperity. Those are policy matters to be decided by an elected government deriving its authority to tax from the constitutional pact it has with the electorate, and for breach of which it will be despatched by the people at the next polls. In Jokapeci Koroi and 2 Others v Asesela Ravuvu and 2 Others (unreported) Lautoka High Court Civil Action No. HBC 31 of 2001L 15 June 2001 in a short ruling I had said:

"The doctrine of necessity is a narrow doctrine and does not cover matters outside of the routine and the necessary."

The case concerned the appointment of a Constitutional Review Committee upon the advice of the Cabinet. I concluded by saying:

"Unusual programmes of expenditure or reformist projects are the prerogative of an elected government. A lawful government needs to be buttressed by holding the confidence of the House of Representatives, and by acting within the Constitution with the two other bodies of Parliament, namely, the Senate and The President. Moving in advance of the will of Parliament in reformist fields', however well intentioned, is not an act which the courts will validate under the necessity doctrine. The authorisation for the expenditure of public funds for such reform work is similarly outside the permitted scope of work of a caretaker Cabinet. Such authorisation is unlawful. Parliament which carries the necessary constitutional jurisdiction and authority for reform, may, when elected, set up a Parliamentary Select Committee for such work."

Additionally, the decrees will have to be considered by Parliament to see whether they are void or merely voidable.

The task of analysing all of the Decrees and Proclamations since 1987 is a substantial task. Dr. Ogowewe puts it (at p 293):

"One should strive to formulate a rule or rules that would allow the courts to cherry-pick between necessary and undesirable outcomes."

Obviously tax cannot be repaid now on tax collected years ago under the VAT Decree 1991. Nor is it possible to put the clock back for persons tried in defiance of their rights to trial in the High Court as a result of the Electable Offences Decree 1988. But if an Accused applied to court within 12 months of a conviction, a court might find the wrong sufficiently proximate for the grant of redress.

Dr. Ogowewe suggested (at p 294):

"The law must attach the badge of illegality to all constitutional violations. However, a refusal to recognise laws that are intended to legalise the usurpation (such as the immunity clause) does not mean that the laws passed by the usurping government which are necessary to the maintenance of organised society should not be recognised"

I shall not go further into Dr. Ogowewe's illuminating paper on what is to be done about the decrees. That is a matter for another time.

Ratification of Decrees
A court can sever from or strike out a Decree whenever there is conflict with the Constitution, or where the lack of legality is unsupported by any obvious and necessary efficacy.

In commenting on the VAT Decree 1991, Byrne J. in Ghim Li Fashion (Fiji) Pte. Ltd. v The Commissioner of Inland Revenue (unreported) Suva High Court Civil Action No. HBC0403 of 1998 16 August 2001 said (at p 2):

"By its very title it will be noted that this law was not passed by Parliament but rather made by some non-elected person or persons who did not have to account to Parliament for his or their actions. That of itself is sufficient reason why its various provisions, insofar as they deal with the duty to pay tax, must be studied most carefully so as to ensure that justice is done to both the Commissioner for Inland Revenue and the person said to be liable to pay tax."

At p 32 he said:

"At the risk of being unduly repetitive I observe again that this Decree was never subjected to the scrutiny of Parliament as in my judgment, bearing in mind its ambit and the vast powers it entrusts to one person, the Commissioner, it should have been."

In commenting on the inappropriateness of a Decree trampling across an Act of Parliament, his lordship concluded (at p 35):

"I said at the beginning of this Judgment that I would leave until last comments which I think have to be made about Section 89 of the Decree which deals with Amendments and Repeals, It is appropriate that this is the final Section of the Decree because it purports to render invalid all existing Acts, Decrees, laws, rules, regulations or other related legal instructions which contravene the provisions of the Decree insofar as they relate to the payment of tax in Fiji. To put the matter beyond doubt, or, to use the words of the Section itself "for clarity", the Decree purports to supersede every other Act, Decree, law, rule, regulation, or other legal instruction, instrument or document.

For gargantuan wideness I have never seen any such similar section in all my presumptuousness is self-evident for here we have a Decree, not an Act of experience. Its Parliament, purporting to repeal and supersede legislation passed by Parliament. It is frightening in its implications."

Ideally Parliament should correct Acts, Decrees, and the like, not the courts. The separation of powers as between the arms of the State is an important concept for good governance.

Shameem J. in Audie Pickering (supra) at pp 22-23 said:

"The judiciary has a traditional deference to Parliament. It is for Parliament to pass laws, and for the judiciary to give effect to them. Most legislation will have a valid constitutional purpose because it would have been passed after much research, discussion and debate. A recommendation for legislative change normally comes from a group or department after a need for the change has been acknowledged. A Minister, having discussed the matter with his/her own Ministry will then present a Cabinet paper. The matter will be discussed in Cabinet before it is prepared in Bill form. Once in Bill form, it is published so that the public and concerned parties can discuss it and make representations to their Member of Parliament. The Bill, if it is not channelled to a Sector Committee for Parliament to hear further representation from the public and from government, will be debated in Parliament, both in the Lower and Upper House. It is only after this process that a Bill might become law. The law when passed by Parliament, and assented to by the President, has the status of a law passed through a democratic process. There is an assumption that Parliament speaks for the people and passes laws with the assent of the people. This is the essence of democracy. It is a powerful reason why the judiciary should defer to the will of Parliament. Legislation passed by Parliament reflects in principle, the will of the people.

However, as counsel for the Human Rights Commission submitted, the mandatory minimum sentence under the Drugs Act was not imposed by the legislature. It was imposed by an executive act. If was passed by decree. There was no public discussion, no Parliamentary debate, and no opposition.

In the context of a decree, not only is it more difficult to ascertain a legislative purpose, but the customary deference to legislation must surely give way to a very close scrutiny of the constitutional effect of what is an executive act, albeit acknowledged and saved by section 195 of the Constitution."

In the circumstances, it is essential that the incoming Parliament review all of the Decrees made since 1987 and subject them to the normal processes of a bill. Only then will Parliament be true to its constitutional pact with the people of Fiji. A reference tucked away at the end of the Constitution [section 195(1)] to all written laws continuing in force, does not amount: to a parliamentary process complying with such a pact. Parliament should seek to complete such a process within as short a time as possible, perhaps 12 months. Parliament, setting its own procedure, will no doubt extend that time as it thinks fit. But it is desirable to maintain constitutionality in Fiji's public life, and to restore its rolling stock to the tracks as soon as possible.

Validity of Interim Administration
In 1784 Warren Hastings left India having been Governor-General of Bengal. He was charged with corruption and having endured a 7 year trial was finally acquitted. He had carried out many reforms in India and increased the paramountcy of the East India Company. He was replaced by General Cornwallis who introduced the Cornwallis Code. Though it was felt Hastings was rightly acquitted, British officialdom would never again accept a lesser standard of behaviour for its officials in India. It placed India on the same standard as England, and official conduct, government, and public administration were to be viewed in the same light thereafter. It is sometimes argued in Fiji that Fiji cannot aspire to matters of Human Rights or good governance as in other countries.

Fiji like many a developing country may find resources scarce in some areas, but it is patronising to assume its citizens are not entitled thereby to honest, open, fairminded and constitutional government.

After the hearing, judgment and declarations of the Court of Appeal on 1 March 2001 it might have been hoped that a constitutional path would have been earnestly pursued. This did not occur as Scott J. irresistibly had to find in Akuila Yabaki. The judge excused the failure to apply the Constitution for the reasons he gave.

Leaving aside quite unnecessary defects in the appointment of the President, why was it necessary to appoint the Prime Minister and the Cabinet not in accordance with the Constitution. The appointments should have been made from amongst the number of Parliamentarians who still held elected office, across party lines, and inclusive of all the parties represented in the Parliament then prorogued. This was not done. Without reason shown, one is drawn to infer that it was not done because of a lack of will to maintain constitutionality.

One is faced therefore with appointments that lacked constitutionality and therefore legality. No explanation can be found for not making that selection from the Parliament. Necessity cannot be used to undermine the Constitution only to reinforce it. The Constitution has been undermined, and the appointment of the Prime Minister and Cabinet are unlawful. The caretaker government therefore had no power to advise the President to pass this Decree and for this reason also the Decree is invalid.

Orders

In the result I find that the Amendment Decree was unlawful. I grant a permanent injunction against the re-imposition of VAT on the essential food items. I order the VAT not to be levied or collected with effect from 1st September 2001.

I have been provided with an estimate only of the likely collection amount of VAT from these items for the year 2001 of $F40 million. This amount (less the 4 months September – December 2001] would equal $26.68 million so far collected. I shall adjourn this matter to 27 September 2001 at 10.00am so that the Defendants instructed by the incoming elected Government, can inform me more accurately of the actual amount collected prior to my making an order for this sum to be allocated for suitable poverty alleviation programmes. I find it is not practical to return the individual amounts of unlawful VAT collected to each person separately. On 27 September 2001 I would expect to be informed of the total amount of tax collected on these items, with supporting evidence, and of the new Government's budgeted allocation, up to that amount, for return to the poor of the taxes unlawfully imposed and collected.

The Plaintiff should have its costs for bringing this action. It has acted commendably in the public interest. Costs should be awarded on an indemnity basis.

I assess costs summarily for the Plaintiff inclusive of disbursements, to reflect the gravity and complexity of the matter, at $6,000.

In the result I order:

1. A declaration that the removal of the exemption from VAT on essential food items by the interim and/or caretaker Government headed by Mr. Laisenia Qarase was unlawful and/or without proper authority.

2. A permanent injunction restraining the 1st Defendant with effect from 1st September 2001 from enforcing payment of Value Added Tax on the following items:-

(i) Tinned fish

(ii) Flour and Sharps

(i) Powdered Milk

(ii) Edible Oil

(iii) Rice

(iv) Tea

3. I order return of the monies unlawfully collected, such order to be made and drawn up after I have been informed more exactly of the amount collected, and after I have heard from counsel for the Defendants on 27 September 2001 after they in turn have been instructed by the incoming elected Government as to how they propose to allocate the monies to alleviate poverty.

4. There will be costs for the Plaintiff of $6,000 inclusive of disbursements.

Declarations and orders granted.

Alesi Macedru and Marie Chan