| Fiji Islands - The President of the Republic of Fiji Islands v Kubuabola - Pacific Law Materials |
IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA
ORIGINAL JURISDICTION
MISCELLANEOUS CASE NO. 1 OF 1999
BETWEEN:
:
THE PRESIDENT OF THE REPUBLIC OF FIJI ISLANDS
Applicant
AND:
1) INOKE KUBUABOLA,
LEADER OF THE ITION
2)ER>2) MAHENDRA PAL CHAUDHARY,
PRIME MINISTER, GOVERNMENT OF THE REPUBLIC OF FIJI ISLANDS
AND LEADER OF THE FIJI LABOUR PARTY
3) ADI KUINI SPEED,
LEADER OF THE FIJIAN ASSOCIATION PARTY
Respondents
Coram: The Hir TimocTimoci Tuivaga, President of Supreme Court
The Rt. Hon. Lord Cooke of Thorndon, Judge of Supreme Court
The Hon. Sir Anthony Mason, Judge of Supreme Court
The Hon. Sir Gerard Brennan, Judge of Supreme Court
The Hon. Justice John Toohey, Judge of Supreme Court
Hearing: Monday 30 and Tuesday 31, August 1999
Date of Opinion: Friday, 3 September, 1999
Counsel: Nainendra Nand, Solicitor-General, William Calenchini,
Sarvada Nand Sharma and Nehla Basawaiya for the Applicant
Jai Ram Reddy, Bhupendra C. Patel, Kelemedi Bulewa
and Vodo Tuberi for the 1st Respondent
Haroon Ali Shah for the 2nd Respondent
Sir Vijay R. Singh for the 3rd Respondent
OPINION OF THE SUPREME COURT DELIVERED BY
SIR TIMOCI TUIVAGA, CHIEF JUSTICE.
Introduction
This is the unanimous opinion of the Supreme Court on questions referred to it by the President under section 123 of the Constitution
Amendment Act 1997("the Constitution").
Section 123 of the Constitution provides -
"123. The President may, in the public interest and on the advice of the Cabinet, refer to the Supreme Court for its opinion
any question as to the effect of a provision of this Constitution that has arisen or appears likely to arise, and the Supreme Court
must pronounce in open court its opinion on the question."
By section 2(1) the Constitution is the supreme law of the State. The opinion of the Supreme Court pronounced in response to a reference
by the President is necessarily authoritative as the true interpretation of the law and binding on the President, the Government,
the Parliament, the Courts, the Bose Levu Vakaturaga, and on the people of Fiji generally. By sections 3, 6 and 7 the Constitution
lays down certain principles which are to apply in its interpretation. We have been guided by these principles, as we shall explain
in the course of our reasons.
A general election for the election of members of the House of Representatives was conducted from 8 to 15 May 1999. After the election,
issues arose as to the composition of the Senate. These resulted in the President’s reference, dated 24 June 1999, which originally
contained, in paragraph 6, a series of questions (a) to (d). On 24 August 1999 with the approval of Cabinet the President enlarged
the reference to include issues raised in a certain originating summons and a certain judicial review proceeding, both of which had
been issued in the High Court by the Leader of the Opposition. The questions proposed by the President are set out in section C of
a statement of agreed facts and issues previously filed in this Court by the Solicitor-General on 19 August 1999. The issues set
out in sections D and E were first proposed by interested parties and were subsequently incorporated into the reference. The answers
to some of the added questions will necessarily follow from our answers to some of the questions in section C.
As the documentation is long and complicated, we reproduce as appendices to this judgment -
Appendix A. The original reference.
Appendix B. Enlargement of reference.
Appendix C. The statement of agreed facts and issues. It is to be noted also that the statement of agreed facts and issues was accompanied
by a bulky list of documents, which cannot conveniently be reproduced in an appendix.
Most of the relevant material, however, being reproduced in the appendices, we need set out in our reasons the more important facts
only. They are as follows.
By section 50 of the Constitution, the House of Representatives consists of 71 members elected in accordance with the Constitution
to represent single-member constituencies. At the May general election 71 members were elected, but on 11 June 1999 the High Court
on an election petition revoked the election of one member and declared another candidate to be the duly elected member for that
constituency. Then on 21 June 1999 the Speaker of the House declared a vacancy of another constituency following the resignation
of Sitiveni Rabuka, a member of the Soqosoqo ni Vakavulewa ni Taukei (SVT), who had been elected at the general election. A by-election
therefore became necessary and the result is still pending.
So, at the date of the President’s original reference, 24 June 1999, and indeed down to the present time there were and are 70
members of the House of Representatives, with party affiliations (if any) as follows:-
(a) Fiji Labour Party (FLP) 37 seats
(b) Fijian Association Party (FAP) 11 seats
(c) Soqosoqo ni Vakavulewa ni Taukei (SVT) 7 seats
(d) Party of National Unity 4 seats
(e) Christian Democratic Party 3 seats
(f) United General Party 2 seats
(g) Nationalist Vanua Tako Lavo Party 1 seat
(h) Independents 5 seats
70 seats
The principal questions in the reference relate to how the Senate is to be composed. These questions also require consideration of
how the Cabinet is to be composed.
The principal relevant provisions of the Constitution are sections 64 and 99 -
"64.-(1) The Senate consists of 32 members, of whom:
(a) 14 are appointed by the President on the advice of the Bose Levu Vakaturaga;
(b) 9 are appointed by the President on the advice of the Prime Minister;
(c) 8 are appointed by the President on the advice of the Leader of the Opposition; and
(d) 1 is appointed by the President on the advice of the Council of Rotuma.
(2) The leaders of each of the parties entitled to be invited to participate in the Cabinet under section 99 nominate a person or
persons for appointment under paragraph (1)(c) and, in tendering advice to the President pursuant to that paragraph, the Leader of
the Opposition must ensure that the 8 persons proposed for appointment comprise such number of nominees of those parties as is proportionate
to the size of the membership of those parties in the House of Representatives.
(3) If, at the time when an appointment is, or appointments are, to be made to the Senate under this section, the position of Leader
of the Opposition is vacant, the Prime Minister must adopt the role of the Leader of the Opposition under subsection (2) in tendering
advice to the President as to the 8 persons proposed for appointment under paragraph (1)(c).
(4) A person is not eligible to be appointed as a member of the Senate unless he or she is eligible to be a candidate in elections
to the House of Representatives."
"99.-(1) The President appoints and dismisses other Ministers on the advice of the Prime Minister.
(2) To be eligible for appointment, a Minister must be a member of the House of Representatives or the Senate.
(3) The Prime Minister must establish a multi-party Cabinet in the way set out in this section comprising such number of Ministers
as he or she determines.
(4) Subject to this section, the composition of the Cabinet should, as far as possible, fairly represent the parties represented in
the House of Representatives.
(5) In establishing the Cabinet, the Prime Minister must invite all parties whose membership in the House of Representatives comprises
at least 10% of the total membership of the House to be represented in the Cabinet in proportion to their numbers in the House.
(6) If the Prime Minister selects for appointment to the Cabinet a person from a party whose membership in the House of Representatives
is less than 10% of the total membership of the House, that selection is deemed, for the purposes of this section, to be a selection
of a person from the Prime Minister’s own party.
(7) If a party declines an invitation from the Prime Minister to be represented in the Cabinet, the Prime Minister must allocate the
Cabinet positions to which that party would have been entitled amongst the other parties (including the Prime Minister’s party)
in proportion, as far as possible, to their respective entitlements under subsection (5).
(8) If all parties (apart from the Prime Minister’s party and the party (if any) with which it is in coalition) decline an invitation
from the Prime Minister to be represented in the Cabinet, the Prime Minister may look to his or her own party or coalition of parties
to fill the places in the Cabinet.
(9) In selecting persons from parties other than his or her own party for appointment as Ministers, the Prime Minister must consult
with the leaders of those parties."
As we will explain more fully shortly, a key concept embodied in the Constitution is power sharing. The questions referred to the
Court are essentially concerned with how this concept operates in relation to the Senate and the Cabinet. In their arguments on the
hearing of the reference the three parties represented before the Court each sought the largest possible share.
The Solicitor-General, as well as opening the reference generally, presented argument which Mr. Shah adopted on behalf of FLP. The Solicitor-General argued for an interpretation of sections 64 and 99 having the effect that under section 64(1)(b) the President
had to appoint to the Senate 9 members on the advice of the Prime Minister; and that as well, under section 64(1)(c), the Prime Minister
was entitled to require the Leader of the Opposition to include in the 8 to be appointed on his advice 4 nominated by the Prime Minister’s
party. The thesis of this argument is that, reading the two sections together, if the Prime Minister’s party has at least 10%
of the total membership of the House of Representatives, it is entitled to a proportionate representation in the Senate which will
be additional to the 9 members to be appointed on the advice of the Prime Minister under section 64(1)(b).
For SVT, whose oral submissions were presented by Mr Patel, the preferred interpretation contended for would entitle the Leader of
the Opposition (at present the Leader of SVT) to nominate all 8 appointees under section 64(1)(c) from his own party or according
to his discretion. This is on the theory that, as applied to the present circumstances, the SVT party’s members are at least
10% of the total membership of the House, and that accordingly the SVT is entitled to a corresponding proportion of the Cabinet seats.
Further, the argument goes, after the words "all parties" in section 99(5) there should be read in an exception "apart
from the Prime Minister’s party and the party (if any)with which it is in coalition" The significance of this is that FLP,
FAP and the Party of National Unity, though separate parties, campaigned as a coalition and at present are joined (together with
some others) in a coalition government. It is an interpretation which would exclude FAP from any right to seats in either the Senate
or the Cabinet.
In sharp contrast the argument presented for FAP by Sir Vijay Singh was initially for an interpretation having the effect that in
the circumstances now obtaining FAP would have the right to monopolise the Leader of the Opposition’s 8 nominees under section
64(1)(c). This view was founded on the fact that FAP has more than 10% of the total membership of the House, coupled with the suggestion
that its possible competitor for a share of the Senate nominations under (c), namely SVT, no longer qualifies to share because the
vacancy that has occurred has reduced SVT’s membership of the House to less than 10%.
For the reasons about to be given the Court is satisfied that all of those main arguments are wrong. In fairness to Sir Vijay Singh,
however, we add that, when the difficulties in the way of his initial argument became clear, he di press iess it. We understood him
then to accept that, if 8 Senate appointments are to be shared in proportion to the current membership of the House (70 members only),
FAP will control 5 and ; and that, if the appointmointments are to be made after the result of the by-election is known, each party
other than the Prime Minister’s party with at least 10% of the then total membership of 71 will likewise be entitled to share
proportionately. Thus, if SVT wins the vacant seat at the by-election and the Senate appointments have not previously been made,
the sharing of Senate appointments will be 9 (Prime Minister’s advice) 5 (FAP) 3 (SVT). This approach, whereunder the date of
appointments can be important, is the correct one. We proceed to explain why.
The True Interpretation of the Rights regarding Senate Appointments
A central purpose of the 1997 Constitution is the sharing of power. The Republic of the Fiji Islands is declared in the course of
the preamble to be a multi-cultural society. While some particular protection of Fijian interests is contemplated by section 6(j),
political power is to be shared equitably amongst all communities: section 6(l). By section 99(3) the Cabinet is to be multi-party.
Sharing of power means limitations of power. This concept of sharing permeates sections 64 and 99. For the purpose of determining
the questions raised by the present reference, it must be given particular weight in resolving any ambiguity or deciding which of
a number of possible interpretations must be adopted. Section 3(a) so requires, for it provides-
"3 In the interpretation of a provision of this Constitution
(a) a construction that would promote the purpose or object underlying the provision, taking into account the spirit of this Constitution
as a whole, is to be preferred to a construction that would not promote that purpose or object; and..........."
It follows that there is a distribution of political power quite different from that which may be familiar under a traditional Westminster
pattern. In a traditional Westminster - style democracy a Prime Minister who enjoys the support of the lower House can normally establish
a Cabinet as he or she pleases. That is not the position in the Fiji Islands. Political power is divided among a number of groups,
persons and parties; the share of each is in some way limited.
The pattern is apparent when one looks at sections 64 and 99. For example, under section 64 a very striking feature of the composition
of the Senate is that of the 32 members 14 are appointed by the President on the advice of the Bose Levu Vakaturaga. The Great Council
of Chiefs are thus likely to have great power in the Senate. But they do not comprise a party, and under section 99 they are given
no right to Cabinet seats. That is a limitation on their potential power.
So, too, there are limitations on the Prime Minister’s powers. By section 98, the President, acting in his or her own judgment,
appoints as Prime Minister the member of the House of Representatives who, in the President’s opinion, can form a government
that has the confidence of that House. Thereafter, by section 99(1), the President appoints and dismisses other Ministers on the
advice of the Prime Minister. But in turn the powers of the Prime Minister are subject to restrictions. By section 99(3) he or she
must establish a multi-party Cabinet, in the way set out in the section, comprising such number of Ministers as he or she determines.
By section 99(4), subject to the section, the composition of the Cabinet is, as far as possible, to fairly represent the parties
represented in the House of Representatives. In particular, in establishing the Cabinet the Prime Minister by section 99(5) is required
to invite qualified parties (as there described) to participate; and this links with sections 64(1)(c) and (2) whereunder Senate
appointments flow from the rights of parties to be invited to participate in the Cabinet.
Other important limitations are that, although the Prime Minister is entitled to advise the President on 9 Senate appointments under
section 64(1)(b), the Leader of the Opposition also has a right to nominate 8 under section 64(1)(c). That this is a separate function
from the Prime Minister’s normal function is emphasised by the fact that in one set of circumstances - and one only - is the
Prime Minister entitled to take over the role of the Leader of the Opposition. That is when the position of Leader of the Opposition
(a Presidential appointment under section 82) is vacant. In the face of that pattern, it would be odd if, when the position is not
vacant, the Prime Minister could in effect take over the Leader of the Opposition’s role by insisting on the right to nominate
some Senators under section 64(1)(c).
The pattern of sharing and limitations is to be seen also in other roles that are allotted. Thus, while the Leader of the Opposition
has the right to advise on 8 Senate appointments under section 64(1)(c), he or she is restricted by section 64(2). It is convenient
to interpose at this point that, although section 64(2) contains the word "must", it cannot apply if no party other than
the Prime Minister’s party has at least 10% of the total membership of the House. In such circumstances we would agree with
Mr. Patel that the Leader of the Opposition would have a discretion, in the exercise of which section 99(4) would of course be relevant.
Tracing the pattern further, it is to be noted that only in one situation do the linked sections treat the existence of a coalition
government as relevant. This is the situation covered by section 99(8). The plain inference is that in no other situation are the
legal rights affected by the existence for the time being of a coalition. This is understandable, as coalitions may be transitory.
One last observation should be made about the pattern. It is assumed by section 99 that the Prime Minister has a party: see subsections
(6), (7), (8) and (9). The Constitution does not actually so require. It is enough that he or she be a member of the House of Representatives.
But the Constitution has been drawn up with an eye to political realities and likelihoods. The construction to be placed on it in
accordance with its spirit should not be dominated or heavily influenced by the possibility of circumstances which the framers may
have dismissed as highly improbable. The ordinary and appropriate inference from section 99(6) to (9) inclusive is that in the other
provisions of these two linked sections (sections 64 and 99) a reference to parties does not include the Prime Minister’s own
party. His own party is within the scope of a provision only when expressly brought in by the terms of that provision.
Once the spirit, object and pattern of the provisions are considered together with the words that have to be interpreted, the true
meaning becomes clear enough. The crucial words are "parties to be invited to participate in the Cabinet under section 99",
which are to be found in section 64(2), and " the Prime Minister must invite all parties whose membership in the House of Representatives
comprises at least 10% of the total membership of the House", which are to be found in section 99(5). Although it is not impossible
to speak of a Prime Minister as inviting his own party to participate in his Cabinet, that would be in the political context a somewhat
unusual mode of expression. It would be more natural and normal to speak, as we think section 99 does, of the Prime Minister as establishing
(or forming) his Cabinet and inviting representatives of other parties to join it. The provisions about inviting are capable, if
only just capable, of more than one meaning. But to treat them as allowing the Prime Minister to invite his or her own party would
distort the pattern and assign to the Prime Minister a share of power greater than is to be expected in this Constitution.
The Court is satisfied that the concept of power sharing in the Constitution requires invitations to the Cabinet, and consequently in effect to the Senate, to be issued to parties with at least 10% of House membership,
other than the Prime Minister’s own party. His own party is protected by his rights to establish his Cabinet (subject always
to the principles in section 99) and to secure 9 Senate appointments. Invitations are to be issued across the political lines. There is insufficient reason for excluding from the required invitations a coalition party such as FAP. Applying
this interpretation, the result if appointments were made according to current membership of the House of Representatives would be
that the Senate would consist of -
14 Senators appointed by the President on the advice of the Bose Levu Vakaturaga;
9 appointed by the President on the advice of the Prime Minister;
8 appointed by the President on the advice of the Leader of the Opposition, of which FAP may nominate 5 and SVT 3;
1 appointed by the President on the advice of the Council of Rotuma.
Relating what we have said to the questions in section C(1) of the statement of agreed facts and issues (Appendix C), the answer to
(a) is the meaning there specified in (ii). The answer to (b) is No.
That disposes of the main questions in both the original reference and the enlarged reference. We now turn to the other questions.
For their numbering it is convenient to continue to use that in the agreed statement of facts and issues.
As to this, the Constitution is the supreme law of the State: section 2(1). All are subject to it - the Parliament, the Executive
and the Judiciary. The President, like all others, must act in accordance with the Constitution. What does this mean in the circumstances
with which section 64 deals?
The Constitution prescribes some situations in which the President is expressly empowered to act in his own judgment: the appointment
of the Prime Minister (section 98) and the appointment of the Leader of the Opposition (section 82) are such situations. Absent such
a provision, the President acts "only on the advice of the Cabinet or a Minister or of some other body or authority prescribed
by this Constitution for a particular purpose as the body or authority on whose advice the President acts in that case": section
96(1).
The words "body or authority" are words of wide import. Clearly they include the Bose Levu Vakaturaga advising under section
64(1)(a) and the Council of Rotuma advising under section 64(1)(d). And, in our view, they are wide enough to include the Prime Minister
advising under section 64(1)(b) and the Leader of the Opposition advising under section 64(1)(c).
But the body or authority tendering the advice is itself bound by the Constitution. If the advice does not conform to a constitutional
imperative such as section 64(2), the purported tendering of advice neither compels nor authorises the President to act in accordance
with its terms.
The President’s power to make an appointment under section 64(1)(c) is conditioned by the receipt of advice from the Leader of
the Opposition, given in accordance with section 64(2). The President is entitled, before acting on that advice, to be satisfied
that it accords with that provision. He may chose to do so by himself obtaining advice; this is what happened in the present case.
That is a matter for the President.
If the President is not satisfied that the appointments which he is advised by the Leader of the Opposition to make under section
64(1)(c) accord with section 64(2), the President may deem it prudent to decline to act on that advice for the time being. The President
may then take such steps as he or she deems necessary to secure the tendering of advice in accordance with that provision, including
the seeking of Cabinet advice to refer the question to this Court under section 123. That is what the President did in the present
case.
Relating what we have said in this part of our reasons to question C2, the answer is: "No - the position is as we have explained."
The Parliament of the Republic of the Fiji Islands consists of the President, the House of Representatives and the Senate (section
45). The House of Representatives consists of 71 elected members (section 50) and the Senate consists of 32 appointed members (section
64(1)). As the term of the Senate expires on the expiry of the House of Representatives or its earlier dissolution (section 66),
and as membership of parties in the House determines the make-up of the persons proposed for appointment to the Senate by the Leader
of the Opposition (section 64(2), the appointment of Senators by the President under section 64(1)(c) necessarily follows upon a
general election of the members of the House of Representatives. The Constitution contemplates, but does not require, that the appointment
of Senators will take place before the time when the Parliament is summoned by the President to meet. Section 68 provides that the
Parliament is to be summoned to meet not later than 30 days after the last day of polling. When the polls are declared after a general
election, the membership of the House of Representatives is known, subject to any decision by the High Court sitting as the Court
of Disputed Returns that a person’s election as a member was invalid (see section 73). When the membership of the House of Representatives
is known, the number of members in each of the respective parties is known or can be ascertained, albeit membership of a party can
change whether by a member’s joining that party or by a member’s resignation from it (perhaps with consequent vacating
of the member’s seat under section 71(1)(g)) or by vacation of the member’s seat, whether by a determination by the Court
of Disputed Returns that the member’s election was invalid or otherwise under section 71(1). Such a determination might not
occur before the Parliament has met, since a petition disputing an election can be brought at any time within 6 weeks of the declaration
of the poll or even later if corrupt practice is alleged: section 73(3).
In determining which parties are "entitled to be invited to participate in the Cabinet" for the purposes of section 64(2)
and the size of the membership to which those parties are entitled in the House of Representatives, the Leader of the Opposition
and the President must have regard to the position of the parties and their members on a particular date. Should that date be, for
instance, the date of declaration of the poll, the last declaration of a poll or the return of the writs? Those are dates when the
membership of the House of Representatives becomes known, but, in the political activity that leads to the establishment of a Cabinet
under section 99, party membership may change in a way that would affect the allocation of nominees under section 64(2). The authority
of the Leader of the Opposition to advise the President under section 64(1)(c) and the President’s power to make appointments
on the advice given under that paragraph must be validly exercised, and it is difficult to see how that authority and that power
would be validly exercised if the identity of the persons proposed for appointment were based on figures which were not accurate
at the time when the advice was tendered. The language of section 64(2), which directs the Leader of the Opposition to tender advice
on the footing of the proportions of party membership, is in the present tense ("as is proportionate") and that requires
reference to the proportions current at the time when the advice is tendered. Where the existence of a power depends upon the existence
of prescribed circumstances, the validity of its exercise at a particular time ordinarily depends on the existence of prescribed
circumstances at that time: see Esber v. The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at pp 440, 448. Similarly, when the circumstances governing the authority of the Leader of the Opposition to advise the President
under section 64(1)(c) are the membership of the House of Representatives and the membership of the respective parties, the relevant
time for ascertaining those memberships would ordinarily be the time when the advice is tendered. We do not need to consider the
situation that would arise if a material change in membership of the House or a party were to occur or to be predictably imminent
after the Leader of the Opposition has tendered advice and before the President has acted on that advice. No considered submissions
were directed to this question.
If that advice be validly tendered and the President acts upon it, it is immaterial that at some later time the membership of the
House of Representatives or of the parties in that House vary. Once the power to appoint is exercised on validly given advice and
the appointees accept appointment, they are and remain members of the Senate until the Senate’s term expires or until earlier
vacation of the Senator’s place by reason of any of the circumstances set out in section 71(2). It is immaterial that, after
the appointment of Senators under section 64(1)(c) is effected, the Court of Disputed Returns declares that the election of a member
of the House of Representatives was invalid or that the place of a member of the House becomes vacant for some other reason. Until
an election is declared to be invalid by the Court, the declaration of the poll and the return of the writ giving effect to that
declaration are effective to entitle the person returned to be treated as a member of the House of Representatives.
Section 64 is designed to secure the composition of the Senate as an appointed Chamber. Its reference to section 99 is not for the
purpose of keeping the appointees under section 64(1)(c) in some continuing proportion to the party membership in the House but for
the purpose of providing a criterion for the single exercise by the Leader of the Opposition of his or her authority to advise the
President under section 64(1)(c).
In the present case, advice under section 64(1)(c) has not yet been tendered validly. When the Leader of the Opposition proposes to
tender advice in accordance with the principles expressed by this Court in its opinion, he or she must have regard to the state of
the parties at that time.
Apart from what we have said already, we note that question C3 is expressed in rather general terms. It is not possible to answer
question C3 in the absence of sufficient particulars or clarification of the kind of "questions as to the membership" to
which the question refers.
We now deal with the questions proposed on behalf of the SVT and FAP which were incorporated in the enlarged reference.
Questions D1 to D5 inclusive do not require separate answers, being covered by our previous answers to questions C1 and 2, and more
particularly by our reasons appearing under the heading The True Interpretation of the Rights regarding Senate Appointments.
The answer to question D6 is accordingly No.
