1) MAHENDRA PAL CHAUDHRY
2) PREM SINGH
[INTERESTED PARTIES]
Coram: Hon. Sir Timoci Tuivaga, President of Supreme Court
Hon. Sir Moti Tikaram, Judge of Supreme Court
Rt. Hon. Sir Thomas Eichelbaum, Judge of Supreme Court
Hon. Sir Arnold Amet, Judge of Supreme Court
Hon. Patu Falefatu Maka Sapolu, Judge of Supreme Court
Hearing: Tuesday, 12 March 2002, Suvap class=MsoNormal style="margin-top: 1; margin-bottom: 1">
Counsel: Qoriniasi Bale (Attorney al), Savenaca Banuve, Sainivalati Navoti and Nehla Basawaiya for the President
George Williams, Gyaneshwar Prasad Lala, Varun Shandil
and Neel Shivam for the 1st Interested Party [Mahendra Pal Chaudhry]
No Appearance for the 2nd Interested Party [Prem Singh]
Date of Judgment: Friday, 15 March 2002
OPINION OF THE COURT
Section 123 of the Constitution Amendment Act 1997 (the Constitution) enables the President to rto the Supreme Court, for ifor its
opinion, any question as to the effect of a provision of the Constitution that has arisen or appears likely to arise. The Supreme
Court must then pronounce its opinion on the question in open court.
The present Reference is dated 6 February 2002. Thevant factual material is contained in a bound volume descrdescribed as the Record
of the Supreme Court. Both parties who appeared before us agreed this Record, marked Exhibit 1, was to be the factual material on
which we should draw for our Opinion. It included a Statement of Agreed facts signed on behalf of the President and the First Interested
Party. During the hearing there was added a short Supplementary Statement of Agreed Facts, Exhibit 2.
Background
The Reference relates to the President's appointment of members of the Senate, follothe General Election for 71or 71 members of the
House of Representatives held in 2001. We will not set out the terms of the Reference, or the Agreed Statement of Facts, in full
(they are contained in the Record) but in summary, the following are the relevant events. The
results of the General Election were as follows:
Soqosoqo Duavata ni Lewenivanua (SDL) & p; bsp; 32 seats
Fiji Labour Party (FLP) &nnbp;&&nbp;;&nbp; &nbp; &n27p; pan>
Contive nce Mtu Vanua (CAMV) p; &nbp; &nsp; &bspp 6n> New Labour Unity Party (NLUP) &nnsp;& 2sp;pan/s/p><< clas class=MsoNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> Nationalratioty (Nbsp;& p;&nbbsp;  &nbs; &nbp; 1
United General Party (UGP) 1<< class=MsoNormal rmal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> Independent
: 1">
Polling for one seat was delayed owinghe death of a candidate, but took place before the time of the events relevant to the appoiappointment
of the Senate. The above tabulation represents the final result.
Pursuant to s 98 of the Constitution, the President appointed Mr. Qarase, the leader of the SDL, Prime Minister. He appointed Mr.
Chaudhry, the leader of the FLP, Leader of the Opposition, but Mr. Chaudhry declined to accept appointment. The President then appointed
Mr. Singh, leader of the NFP, to the position.
Part 3 of the Constitution deals with the Senate. Under the heading "Members"64 provides:
(1) &nspapan/s/i><The Senate consists of 32 members, of whoman>: 1">
(a) &nsp; 14appointed by the Pthe President on the advice of the Bose Levu Vakaturaga;
> (b) &nnbsp;; &nsp; 9 are appoiny t by the President on the advice of the Prime Minister;
(c)
&nbssp; 8 are appointed by t by the President on the advice of the Leader of the Opposition; and
: 1"> <(d) &nnsp;&&nsp;;&nspp; span>1 is appointed by the President on the advice of the Council of Rop claoNormyle="margin-left: 6ft: 64.8pt4.8pt; mar; margin-tgin-top: 1op: 1; margin-bottom: 1">
(2) The leaders of each of the parties entitled to be invited to participate in the Cabinet under section 99 nominate a perr a>advicedvice to t 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)   at tme when an appoinppoinppointment is, or appointments are, to be made to the Senate under this section, the position
of Leader ofOppos is v, the Prime Minister must adopt the role of the Leader of the Oppositiosition undn under suer subsection (2)
in tendering advice to the President as to the 8 persons proposed for appointment under paragraph (1)(c).
(4) A pers n i elitible to be o be appointed as a member of thef the Senate unless he or she is eligible to be a candidate in
elections to the House of Representatives.
As seen, s 64 draws on Section 99, which reads as follows:
Appointment of other Ministers
(1) &nbs; &nbbsp;&&nbp; &nsp; &nbbp;&nnbp;& The President appoints and diss othniste the e of rime ter.
(2) nbsp; p; ; &nbbp; &nbp; &nbs; To be eligible for appointment, a Minister must be a member of the House of Representatives or the Senate.
pan style="font:7.0pt "Times New Roman""> &nsp; & p;&nbp; &nsp; &&nbp;;&nbpp; &nThe Prime Minister must establish a multi-party Cabinet in ty setin thction comprisinh numf Ministers as he o he or sher she dete
determinermines.
(4)&n;"> & &nsp; &nbssp; Subject to this section, the composition of the Cabinet should, as far as possible, fairly sent artieresented in the House of Representatives.>
(5) &nsp; &nbbsp; In establishblishing the Cabinet, the Prime Minister must invite all parties whose membership in the House of Representatives comprises
at least 10% of the totabersh the to be represented in the Cabineabinet in t in propoproportion to their numbers in the House.
(6)&t;"> ef thmePrinisMir seer selects for appointment to the Cabinet a person from a party whose membership in the House of Representativeless
10% o totabersh the , that selection is deemed, fed, for thor the pure purposesposes of t of this shis section, to be a selection
of a person from the Prime Minister's own party.
(7) &nbbsp; &nb/span>span>b>If a party declines an invitatiom thme Mir to presein thinet,Prime Minister must allocate thte the Cabe Cabinet inet positpositions
ions to whto which tich 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) &nnbsp; &nsp; &nbbp;&nnbp;& If all partipart from the Prime Minister's party and the party (if any) with which it is in coalition) ion) 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) &nbbsp; &nb/span>span>b>In selecting persons from partiher tis orown pfor atmentinistthe Prime Minister must consultnsult with with the the leadeleaders
ofrs of thos those pare parties.
In this Opinion, we refer to parties reaching the 10% threshold required by subsection 5 as "qualified parties".
On 16 October 2001 the Presideceived a letter from the Leader of the Opposition, containing a list of 8 names nominated ated as senators.
The letter stated that the FLP comprised 38% of the House of Representatives (the House) and that 38% of the 8 senators to be appointed
on the advice of the Leader of the Opposition came to 3.04, but the Leader of the Opposition had decided to allocate 4 to the FLP.
The remaining 4 names in the Leader of the Opposition's advice comprised 1 each from the NFP, the NLUP, the UGP and the CAMV.
On 17 October Mr. Chaudhry, as leader e FLP, advised the President of his 8 nominees for the Senate. In his letter he maintained ined
that the FLP was the only party entitled to make nominations under s 64(2).
It is apparent that the Leader of the Opposition and Mr. Chaudhry had different views regarding the interpretation of s 64(2). In
a letter to the Prime Minister dated 18 October 2001, written on his behalf by the Permanent Secretary, the President stated he was
not convinced that the Leader of the Opposition had to make all 8 nominations from persons nominated by-the FLP. The letter said
it would be within the meaning of power sharing envisaged by the Constitution, as identified by this Court in its 1999 Opinion, if
the President accepted the advice of the Leader of the Opposition, pending further clarification by means of this Reference. The
President acknowledged the possibility that the Supreme Court might fault his decision. The President proceeded accordingly, with
the result that four of the FLP nominees were accepted, while the other four appointees were from four different parties, in accordance
with the advice of the Leader of the Opposition. These appointments were made on 19 October 2001. When one of the nominees did not
accept office, on 23 October 2001 the President appointed another person.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Before embarking on aideration of the Questions, we need to note that sections 3, 6 and 7 of the Constitution coon contain principles
relevant to its interpretation. In particular, in the interpretation of a provision of the Constitution, a construction that would
promote the purpose or object underlying the provision, taking into account the spirit of the Constitution as a whole, is to be preferred
(s 3(a)). Section 3(b) provides that in matters of interpretation, regard must be had to the context in which the Constitution was
drafted and to the intention that constitutional interpretation take into account social and cultural developments. The context in which s 99 was
drafted was set out in detail by the Court of Appeal in Chaudhry v Qarase & ors Misc. No. 1/01, 15 February 2002. We have had regard to that history, which we do not need to repeat here. In the present case neither
side drew our attention to any features of the constitutional history which might bear specifically on the interpretation of s 64(2).
Counsel for Mr. Chaudhry said his research did not disclose any relevant material. The Report of the Fiji Constitutional Review Commission
(the Reeves Commission, as it is commonly known) recommended a largely elected Senate. That Select Committee, which approach was
not accepted by the 1997 Joint Parliamentary, which instead recommended a Senate composed as now prescribed by s 64(l). The Committee
did not say, however, how the Leader of the Opposition was to formulate his advice regarding the 8 appointments on which he was to
advise the President.
Section 6, described as the "Compact", sets out a number of principles forming the basis of the conduct of government, within
the framework of the Constitution and other laws. Although the Compact must be read as a whole, for present purposes the most relevant
provision is s 6 (1), referring to the equitable sharing of power amongst all communities. In The President of the Republic of Fiji Islands v Kubuabola & ors, to which we refer in greater detail below, this Court stressed that the sharing of power was a central purpose of the 1997 Constitution.
Section 7(2) provides that in the interpretation of the Constitution, consideration must be given to the principles contained in
the Compact, when relevant.
Subject to the provisions of the Constitution relating to interpion, we have to apply the normal canons of statutory interpnterpretation.
The first consideration is the natural and ordinary sense, in their context, of the words used. Classically, that is how the intention
of the legislature is ascertained and if the provision is unambiguous, except in rare and extreme cases of absurd consequences that
is the end of the matter.
As the Court of Appeal said in Chaudhry v e - another case involving important matters of interpretation - the Constitution must must be applied to current events and personalities,
but is unaffected by them. The Constitution speaks and applies impersonally. The answers we give about the meaning of the Constitution
would be exactly the same whatever politicians or political parties were involved. All of this should be taken for granted, but we
say it because of the public interest in controversies such as the present.
Turning to the 5 formal Questions by the Reference, we go straight to the critical issue raised by Question 3. We record thad that
at the hearing, the President was represented by the Attorney General and counsel from the Attorney General's Chambers who as well
as opening the Reference and explaining the President's position, made submissions rehearsing the opposing arguments in relation
to this Question. They explained they did not regard it as their function to argue for one point of view or the other. Counsel for
the First Interested Party, Mr. Chaudhry presented submissions to the effect that the view taken by Mr. Chaudhry of s 64 (2) in the
correspondence preceding the Senate appointments was correct and that the view taken by Mr. Prem Singh in his capacity as Leader
of the Opposition was wrong. Mr. Singh, who was named as Second Interested Party, did not enter an appearance. A letter written by
solicitors on his behalf stated he would not participate in the hearing.
The Court is aware that as a result of a recent decision of the High Court, sitting as the court oputed Returns, Mr. Prem Sinm Singh
lost his seat in the House of Representatives and in consequence, his position as Leader of the Opposition. His appeal to the Court
of Appeal has been dismissed for want of jurisdiction and we understand there is an application for leave to appeal to this Court.
As neither side referred to these events we simply record them and proceed to deal with the Reference.
Question 3
WHERE as in this case, only one party was entitled under the requirements of section 99(5) to be considered by the Leader of the opposition
in determining his nominations to the President under section 64(2) of the Constitution:
(a) ;&nbssp; bs that partypartyparty entitled to all eight of the nominations which the Leader of Opposition is required to submit
to theidentr sec64(l)or,
(b) &&nsp;; Ispthat "entitentitled party" entitled only to the number of nominees which equates to its size in the House
of Representatives?p claoNormyle="n-topmargin-bottom: 1"> 1">
The starting point for the operation of s 64 is identiion of the qualified parties, that is those "entitled tled to be invited
to participate in Cabinet under s 99". The qualified parties are those reaching the threshold of 10% of the total membership
of the House.
In 1999 the then President referred a number of questions as t effect of provisions of the Constitution (specifically, ssy, ss 64
and 99) to this Court: The President of the Republic of Fiji Islands v Kubuabola & ors, Misc 1/1999, 3 September 1999 (the 1999 Supreme Court Opinion). That case followed the 1999 election, and at the relevant time the state of the House was as
follows:
Fiji Labour Party (FLP) &nbssp; &nbssp; 37
<
Fijssoci Party (FAP)&nAP) bsp; 11
Soqosoqo ni Vakavulewa ni Taukei (SVT) &nnbsp; 7
Party of National Unity 4
Christian Democratic Party &nbssp; 3
United General Party &n2 Nationalist Vanua Tako Lavo Party & p; 1s/span/span>
<
Independents 5
Total &n70 sespp> : 1"> In that Opinion the critical fg was expressed in these words:
The ordinary and appropriate inference from section 99(6) to (9) incluss that in the other provisiovisions 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. (11)
In its formal answers therefore the Court held that as set out in s 64(2) the phrase "each of the parties entitled to be invited
to participate in the Cabinet under section 99" means every party, excluding the Prime Minister's own party (but not excluding
any party in coalition with the Prime Minister's own party) whose membership in the House of Representatives comprises at least 10%
of total membership of the House.
As this Court pointed out in the 1999 case, the opinion of the Court pronounced in response to a reference byPresident is necessarily
auly authoritative as the true interpretation of the law and is binding on the President, the Government, Parliament, the Courts,
the Great Council of Chiefs and the people of Fiji generally. However, under s 122 (5) the Supreme Court may review any of its own
pronouncements. In the present proceedings no one suggested the Court should revisit that part of the conclusion reached in the 1999 Supreme Court Opinion set out in the previous paragraph. Thus, following the 2001 election the only qualified party was the FLP.
Next, s 64 requires the leaders of qualified parties to nominate a person or persons for appointment under s 64(l)(c), meaning the
leaders make such nominations to the Leader of the Opposition. If there is only one qualified party, and its leader is the Leader of the Opposition, as could well be the case,
that person, in his capacity as leader of the party, would need to notify the nominations to himself, in his capacity as Leader of
the Opposition.
We record that the only restriction on the identity of tminees is eligibility as a candidate in elections for the Hthe House. Thus a
leader's nominees need not necessarily be drawn from a particular party, or ethnic group.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Leader of the Opposition must ensure that the 8 persons proposed for appointment (i.e. under(l)(c)) comprise "such number
of nominees as is proportionate to the size of the membership of those parties in the House of Representatives". Where there
is more than one qualified party, the solution is fairly plain. First, and critically, "those parties" means qualified
parties. That much, counsel for the President accepted. The second significant matter is the effect of the concluding words of s
64(2), quoted above. The Attorney General submitted that the proportion referred to was the proportion the size of the party bore
to the total number of seats in the House. For the reasons we will give, we do not agree with that construction. The first point
to note is that the words are not "shall comprise such number of nominees as is equal to the proportion the number of seats
held by each party bears to the number of seats in the House". We consider that the proportion to which the subsection refers
is the proportion the size of one qualified party bears to another or others.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> It is clear this was the view of the Supreme Court in1999 Supreme Court Opinion. After reaching its princprincipal conclusion, already mentioned, the Court continued:
Applying interpretation, the result if appointments were made according to current membership of thof 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;
I appointed by the President on the advice of the Council of R.
(pages 12 - 13; we have added the emphasis)
At the relevant time in 1999, the FAP held 11 of 70 seats, or 15.7% while the SVT 7 (10%). If (in accordancedance with the view on
which the Leader of the Opposition acted in 2001) qualified parties were allocated the number of places that was equivalent to the
percentage of their seats in the House, the FAP would have received 15.7% of 8, or 1 when taken to the nearest whole number, and
on the same basis the SVT would also have received one place. As seen however the Court considered the FAP was entitled to 5 places,
and the SVT 3. The arithmetic is fairly plain: the proportion of 5 to 3 is the equivalent (to the nearest whole numbers) of the proportion
1 5.7: 10. So the Court must have considered that the 8 places were to be apportioned between the two qualified parties in accordance
with the proportion the size of their respective memberships in the House bore to one another.
In this respect counsel for the President invited us to revisit the 1999 Supreme Court Opinion. However, we do not entertain any doubts regarding its correctness. A central feature of the scheme of sections 64 and 99 is the concept
of "qualified parties". Those not attaining the 10% threshold are not entitled to be invited to join Cabinet (s 99) or
to have their leader nominate persons for the Senate. In these respects they are treated as if they did not obtain any seats at all.
Yet the Attorney General's argument involves giving them the opportunity of filling a number of Senate places. The number of places
may even be more (collectively) than those reserved for the entitled parties. If the 1999 election result is, taken as an example,
on the Attorney General's argument the two most successful parties, the FAP and the SVT would be allocated 1 seat each, while the
less successful parties, or persons unconnected with any party represented in the House, would be allocated 6 seats between them.
That may be described as power sharing, but it seems power sharing carried to absurdity. The fruits of failure become greater than
those of success; the parties which successfully negotiated the 10% hurdle obtain 2 seats in total, while those who were unsuccessful,
or others, share 6. When this difficulty was raised in argument, the Attorney General suggested the remaining places might simply
be left vacant; but that would be directly contrary to the legislative direction, that the Leader of the Opposition is to forward
8 nominations. The fact is that if the two qualified parties were allocated one place each, as the view taken by the Leader of the
Opposition would seem to require, the Constitution gives no guidance how to deal with the remaining 6 places.
Another suggestion in argument was that the remaining places would be at the discretion of the Leader of the Opposition. The underlying
purpose of s 64(l)(c), it was said, was an aspect of power sharing; to provide parties other than the Prime Minister's with the opportunity
of participating in the Senate, to the extent of 8 places. While this approach merits consideration, we do not consider it is correct.
No provision in the Constitution contains or even hints at anything to that effect. To the contrary, subject to some gaps to which
we refer below, in this respect the Constitution treats the Leader of the Opposition as a conduit, conveying nominations, made by
the person or persons entitled to make them, to the President. Most clearly, this is shown by s 64(3), under which the Prime Minister
tenders the advice to the President, in the absence of any Leader of the Opposition. It would be odd, to say the least, if the Prime
Minister, who already has 9 places at his disposal under s 64(l)(b), was deemed to have a discretion in regard to the names to be
nominated under ss (1)(c).
So much then for the case of two or more qualifying parties. The present case has to deal whe most difficult applicatiication of this
part of the subsection, where there is only one qualified party. Adapting the words of the subsection, in that situation the 8 persons
must comprise such number of nominees of the qualified party as is proportionate to the size of the membership of that party in the House. Taken by themselves, the literal meaning of those words do not lead to any meaningful result. They do not specify, how
the size of the membership is to be translated to a proportion of 8. The statute does not yield an immediate answer to Question 3
in that its concluding words do not, directly, address the situation where there is only a single qualified party. Indeed counsel
for Mr. Chaudhry was inclined to accept that these words were ambiguous.
The very difficulty in making sense of these words when applied to an electoral outcome where there is only a single qualified party
has led us to the conclusion that the true intent of the section is that they do not apply to that situation at all. The starting
point, as we said earlier, is the concept of qualifying parties. Where, as here, there is but one, only the leader of that party
is entitled to make nominations. He is entitled to make all eight, and the section assumes that he would exercise that right, so
no provision has been made for the case where he did not.
Thus where there is only one qualifying party, no question of proportionality arises. The concluding wof ss (2), which raise the
the proportionality issue, only come into operation when there is more than one. In that event the entitlements are worked out as
we have indicated, confirming in this respect the view taken in the 1999 Supreme Court Opinion.
This solution explains at first sight may seem a drafting peculiarity in ss (2). It is common enough for statutes utes to deal with
a situation in terms that only use the singular, relying on Interpretation Acts, or the ordinary rules of construction, to extend
the provision to situations involving the plural. The converse, seemingly applied here, is uncommon. We consider the choice was deliberate,
in that the legislature did not intend to deal with the singular case at all: it had already been accommodated.
For completeness we interpolate that the Interpren Act 1967 (Cap.7) contains the usual provision (see s.2(4).2(4)) that except where
a contrary intention appears, words and expressions in the singular include the plural and vice versa. Counsel for Mr. Chaudhry elected
not to place reliance on this provision, saying that the meaning of a provision in a Constitution could not be controlled by an extraneous
Act of Parliament.
We have reached our view on the pleading of section 64(2) in its context, and therefore do not have to consider recourse to s to s
3 of the Constitution or any other means of construction. If however we had to apply the proportionate provision contained in the
concluding part of ss (2) to the situation of a single qualifying party, we would reach the same conclusion. As noted the words do
not readily fit that situation. In those circumstances the responsibility failing on the Court is to work out a practical interpretation
appearing to accord best with the general intention of Parliament. In a sense this involves filling a gap but only in order to make
the Act work as Parliament must have intended. See the decision of the New Zealand Court of Appeal in Northland Milk Vendors Association Inc v Northern Milk Ltd. [1988] 1 NZLR 530, 53 7.
In ascertaining the general intention of Parliament, we note again that the Leader of the Oppos is not given any discretioretion.
He "must ensure" (must meaning shall, see s 194(12) of the Constitution) that the 8 persons comprise the appropriate number
of nominees of the only qualified party, neither more nor less. Thus if the position taken by the Leader of the Opposition in his
correspondence with the President were correct, and the FLP was entitled to 38% of 8 members (3, to the nearest whole number) the
remaining 5 places would have to be filled from another source or sources, but again (on that interpretation) the subsection gives
no guidance, or even any hint, how the Leader of the Opposition is to carry out his role in that respect.
The difficulty just mentioned is illustrated by analysis of the process followed after the 2001 Election. Although, as just pointed
out above, s 64 (2) couches the obligation of the Leader of the Opposition in mandatory terms, in his advice to the President he
allocated places to FLP (50%) rather than the 3 to which its 38% membership corresponded. He filled the remaining 4 places with nominees
from each of the leaders of the 4 remaining parties represented in the House. None of these was a qualified party, and accordingly,
lacked the right to make a nomination under s 64 (2).
In the interpretation of s 64 (2) he adopted, the Leader of the Otion purported to exercise his own judgment and discretion.tion.
We are unable to ascertain however where and how the Constitution conferred any such powers on him. First, the scheme of the section,
in our opinion, strictly circumscribes the Leader's duties. He is to advise the President to make 8 named appointments. Those places
are filled by obtaining nominations from the leaders of the qualified parties. If there are more such parties than one, the number
o nominees forwarded by the Leader of the Opposition is proportionate to the size of their respective memberships, as stated above
and illustrated in the 1999 Supreme Court Opinion.
We recognise that (understandably) the Constitution does not deal explicitly with all possible permutations and combinations. The
1999 Opinion identified one gap, namely where no party, other than the Prime Minister's, reached the 10% threshold (see page 11).
Another is the unlikely event that the leader of a qualified party nominates more names than his entitlement, without ranking them
in order of preference. In these situations, to make the statute work the Leader of the Opposition would have to exercise a discretion.
Primarily, however, his position under subsections (1)(c) and (2) of s 64 is to act as a conduit, within the limitations imposed
by the requirements of those provisions.
We pose the situation, by no means fanciful, where two major parties share the bulk of the seats in the Hous addition there are, let
uset us suppose, 2 Independents. The Opposition has 33 (46%) of the seats in the House. On the view taken by the Leader of the Opposition
in 2001, the Opposition would receive four places (46% of 8, to the nearest whole number) in the Senate. From where are the other
4 to be drawn? The Constitution neither provides nor points towards any solution. Subsection (2) does not make provision for nominees
of Independents, only of qualified parties.
Or take the 1999 election result, as set out earlier. Had FAP been sly more successful and obtained 12 seats (1 7%), at the expe expense
of SVT which (we will assume) got only 6 (8.6%) the result according to the Leader of the Opposition's view is that FAP would now
be entitled to fewer seats; in fact only 1 seat instead of 5. Presumably the Leader of the Opposition could distribute the remaining 7 places as he thought
fit. He might, for example, give 4 to nominees of SVT. A construction leading to such absurdity must yield to a more rational interpretation
when one is available.
To the extent the view taken by the Leader of the Opposition was based on the concept of power sharing of g of course it had solid
support from the 1999 Supreme Court Opinion and the Constitution itself, a point well made by the Attorney General. Earlier we noted s 6(l), with its reference to the equitable
sharing of political power. That however is a general provision and in s 64 we are concerned with a provision specifically addressed
to the issue of Senate appointments. Further, as this Court pointed out in the 1999 Supreme Court Opinion (at 8) a provision such as s 6(l) must be given particular weight in resolving any ambiguity, or deciding which of a number of possible
interpretations may be adopted. However, the concept of power sharing does not exist in a vacuum, but must be seen in, and where
necessary give way to, the context and specific terms of the Constitution. The first task must always be to construe the actual words
of the statute. As the 1999 Opinion noted, throughout the Constitution those empowered are also subject to limitations. In terms
of s 99, and the flow-on effect of that section to s 64, power sharing does not extend to parties which do not attain the 10% threshold.
That threshold is fundamental to the workings of those provisions, and outweighs any implication that might be based on more general
considerations, such as power sharing. However the issue is approached the only rational reading of ss (2), in our opinion, is that
where there is but a single qualified party, it is entitled to the full 8 nominations. Therefore we answer Question 3 (a) yes, and
Question 3 (b) no.
The Opinion we have given in answer to Question 3 i majority Opinion of four Judges. Sir Arnold Amet has writtwritten a separate Opinion
setting out his conclusions on Questions 3 and 4.
Question 1
WHERE inin relation to any advice on the meaning of any provisions of the Constitution the Supreme Court has, pursuant to referral made to it under section 123 of the Constitution Amendment Act 1997 provided the President with advice:
(a) &nnbsp; &nnbsp; &nbp; &nbp; which cl un to the the President; and,
&pt"> nbsp;
(b) & p; on w>on which tich the President has received conflicting legal interpretation -
<1">
can the Pret seek further clarification from the Supreme Court under section 123?
The process esthed by s 123 is designed to provide assistance in resolving problems of interpretation aris arising under the Constitution.
Subject to its terms the jurisdiction should be approached broadly and flexibly, so as best to afford the help envisaged. Where there
has been a previous referral, it would be wrong to imply that the President can only refer the matter to the Supreme Court if he
is unclear about the effect of the previous Opinion, and has received conflicting legal interpretations of its effect. There are
no such limitations. The reference must be within s 123, the prerequisites being that it is made in the public interest, and on the
advice of Cabinet, and the question is as to the effect of a provision in the Constitution that has arisen, or appears likely to
arise. Subject to this explanation we answer the Question yes. This accords with the submissions of both sides.
Question 2
ass=MsoNormal style="margin-top: 1; margin-bottom: 1">
WHERE the President is uncertncertain about the constitutionality of the advice given to him by the Leader of the Opposition under section 64(2) of the Constitution Amendment Act 1997 can he enter into a process of consultation with the Leader of the Opposition with a view to inviting him to review or revise his advice?
Here, the respective submissions diverged. For the President counsel submitte answer should be no while counsel for Mr. Chaudhry argued
gued to the contrary.
The views of this Court as expressed in the 1999 Supreme Court Opinion
The Court then added a critical qualification. The body or authority tendering advice is itself bound by the Constitution. If the
advice is not in accord with it, the President is neither compelled nor authorised to follow it. The Opinion continued:
The President's powerake an appointment under s 64(l)(c) is conditioned by the receipt of advice from the Leader of the Opposition, given in accordance with s 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 Presidentot satisfied that the appointments which he is advised by the Leader of the Opposition to make under s 64(l)(c) accord with s 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 s 123. (14 - 15)
Underpinning the last comments is another important proposition, namely that where the dent is required to act on t on advice he cannot
act at all, in the absence of valid advice. If not satisfied that the advice is in accordance with the Constitution, he cannot act
in some different way, even though his personal advice, or inclination, may be that such alternative course is constitutionally appropriate.
In the submissions on his behalf it was stated that the President couldbe expected to play the role of an arbitrator. The Court aprt
appreciates the difficulty in which the President is placed if, as was the case here, he is faced with conflicting views as to the
effect of a provision in the Constitution on a particular set of events. His obligation, as the submissions emphasise, is to act
on advice, but the advice must accord with the requirements of the Constitution. As this Court said in its 1999 Opinion, it is open
to the President to take such steps as he deems necessary to secure advice that accords with the provision in issue. We agree with
the submission for the President that consultation and advice are separate concepts, and that he is not obliged to enter into a process of consultation, or a dialogue, if he believes the advice is not in accord with the Constitution. However,
we do not consider there is any prohibition on him from doing so. It would be among the alternative steps open to the President.
Thus, in a broad way, we would wish to give an affirmative answer. Our only concern is the expression "processocess of consultation"
may be interpreted in more than one sense, and may indeed be misunderstood. We would not want to leave the impression that the President
ought to enter into any process of or resembling negotiation with the Leader of the Opposition, or any other person giving the President
advice under the Constitution. But (without laying down any rigid procedure) it would be appropriate for the President, at his discretion,
to inform the person tendering the advice that in the President's opinion it does not follow the requirements of the Constitution,
and invite a reconsideration. Subject to this explanation we answer Question 2 yes.
Question 4
IF Question 3 (b) above is e is answered in the affirmative, then how many of the 8 seats ought I allocate to the only "'entitled party" under section 64(2), and how ought I allocate the remaining seats?
No answer required.
Question 5
WAS the President's decision to accept and act e advice of the Leader of opposition while he sought clarification on that advice from the Supreme Court under section 123 consistent with the Constitution or should the President, in the circumstances, have awaited the ruling of the Supreme Court, even if it meant having no Opposition nominees in the Senate until the ruling is delivered.
Counsel drew attention to s 72 of the Constitution which reads:
Each Housthe Parliament may act despite a vacancy in its membership, and the presence at, or the participation in, its proceedings of a person not entitled to be a member does not invalidate the proceedings.
The submissions on behalf of the President noted that the President had not found the views of either the Leader of the Opposition
or the Leader of the FLP to be "totally convincing', that in his view the previous Opinion of this Court was silent on the issue,
and that in his opinion, it would be within the meaning and spirit of the power sharing envisaged by the Constitution to accept and
act on the advice of the Leader of the Opposition. The President was correct in thinking that the previous Opinion of this Court
did not decide the issue. That being so, we appreciate, as we said earlier, the difficulty of the position in which the President
was placed. The obvious course, which he followed, was to seek Cabinet's advice to refer the matter to this Court. In that situation,
ideally the President ought to defer acting until he has obtained the Opinion. However, that may not always be practicable, as we
shall explain.
Since its establishment, the Supreme Court has included a number of expatriate judges. While that situation coes, there is likely
to be s be some delay before a Court can be assembled, although it may be noted that in 1999, the Court was able to deliver its Opinion
only a little over two months after the date of the Reference, while in the present case the interval is even shorter. In the administration
of the country's affairs however delays of even this order may cause difficulties. In effect the Question asks whether the President
ought to have delayed making the Senate appointments until the Supreme Court had been able to assemble, hear argument and formulate
its Opinion.
We do not see the value of deciding whether, in making the appointments before the Opinion of Court was obtained, the Prhe President
took the best available course. It is now water under the bridge, and the identical situation is unlikely to occur again. Neither
side pressed us to answer the question.
Where guidance might be helpful, if any could be given (and perhaps that we intent in posing the question) would be in regard to simi
similar situations with which the President may have to deal in the future. A President faced with uncertainty as to the validity
of the advice that has been tendered to him under the Constitution will have to weigh up the advantages and the risks involved in
acting on the advice on the one hand, or delaying until he has been able to obtain an Opinion from this Court on the other. Where
as here the step is one which can only be taken on advice, there is no other choice. The extracts from the 1999 Supreme Court Opinion quoted in our answer to Question 2 are relevant. If the President considers the advice is not in accord with the Constitution he ought
not to act on it. From the correspondence however, that does not appear to have been the situation here.
If the President considers the advice is consistent with the requirements of the Constitution it is apparent that such vuch view is
open to challenge, there are risks either way. If he acts immediately there is the risk that the step taken will turn out to be invalid
with whatever potential consequences that entails. Should he delay however the ongoing administration of the country's affairs may
be handicapped or even paralysed. The decision must be one for the President to make in the best interests of the country having
regard to the nature of the issue and the circumstances of the time.
In written submissions counsel for Maudhry argued that the President ought not to have acted on the advice of the Leader of thef the
Opposition, as it was inconsistent with the Constitution. Of course, having regard to our finding in answer to Question 3 that is
now apparent, but the President had to make the decision whether to proceed, or await a Court ruling, without the benefit of hindsight.
As discussed, in any specific case the decision is one for the President's judgment, to be made on the particular facts. These general
remarks may be helpful, but returning to the Question as posed, in terms of s 123 we do not consider it raises "any question
as to the effect of a provision of [the] Constitution". We thus respectfully decline to answer it.
Results
The Court's answers to the Questire:
Q2. p; As expl explained, yes (unanimous)
Q3(a) Yes (majority deci
Q3(b) No (majority dec) p class=MsoNormal stal style="text-align: justify; mar; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> Q4. &nnbsp; No answ answer requ(red riajority decision)
Q5. & the uestiuestion doen does not fall within s 123 we respectfully decline to answer it (unanimous)
Hon. Sir Timoci Tuivaga
Hon. Sir Moti Tikaram
Rt. Hon. Sir Thomas Eichelbaum
Hon. Patu Falefatu Maka Sapolu
Solicitors:
Oft">Office of the Solicitor General, for the President
G.P. Lala & Associates, for M P Chaudhry, First Interested Party
p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> -----------------------------------------------------------
IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA
(ORIGINAL JURISDICTION)
MISCELLANEOUS NO.1 OF 2001S
BETWEEN:
IN THE MATTER OF SECTION 123 OF THE CONSTON
AMENDMENT ACT 1997
AND:
IN THE MATTER OF A REFERENCE FOR AN OPINION BY
HIS EXCELLENCY THE PRESIDENT OF THE REPUBLIC OF FIJI
ISLANDS ON THE INTERPRETATION OF SECTIONS 64 AND
99 OF THE CONSTITUTION AMENDMENT ACT 1997
AND:
1) MAHENDRA PAL CHY
2) PREM SINGH
[INTERESTED PARTIES]
Coram: Hon. Sir Timoci Tuivaga, President of Se Court
Hon. Sir Moti Tikaram, Judge of Supreme Court
Rt. Hon. Sir Thomas Eichelbaum, Judge of Supreme Court
Hon. Sir Arnold Amet, Judge of Supreme Court
Hon. Patu Falefatu Maka Sapolu, Judge of Supreme Court
Hearing: Tuesday, 12 March 2002, Suva
Counsel: Qoriniasi Bale (Attorney-General), Savenaca Banuve, Sainivalati Navoti and Nehla Basawaiya for the President George Williams,
Gyaneshwar Prasad Lala, Varun Shandil and Neel Shivam for the 1st Interested Party [Mahendra Pal Chaudhry]
No Appearance for the 2nd Interested Party [Prem Singh]
Date of Judgment: Friday, 15 March 2002
DISSENTING OPINION OF AMET JSC
I have had the advantage of reading tinion of the majority. I agree with that opinion in respect of Reference Questions 1, 2 and2 and
5. However, with respect, I propose a different opinion in respect of Questions 3 and 4.
A good starting point in the task of interpretation of a provision of an autochthonous constitutioto look to the constitutionution
itself for any specific guidelines it may give, before resorting to the conventional methods of statutory interpretation. If there
are specific provisions then they should be given pre-eminence.
In the Constitution of the Republic of the Fiji Islands 97, enacted by Constitution Amendment Act - 13 of 1997, sec, sections 3, 6
and 7 provide such specific guidelines for interpretation of provisions of the Constitution.
Section 3 states that in interpreting a provision of the Constitution:
a) p;&nbbsp;&nsp;&nbp;&nbp; ;&nbssp; span>a cons 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 tonstrn thald not not promopromote thte that purpose or object; and
b); &nsp; &nbbsp; regard must be had had to the context in which this Constitution was drafted and to the intention that constitutional interpretation
take into account social and cultural developments...
Chapter 2 which is headed "Compact", lists in sections 6principles which the conduct of government is to be based osed on,
and section 7(2) directs that in the interpretation of the Constitution consideration must be given to those principles, when relevant.
Relevant parts of section 6 state the following principles:
(h) p;&nssp; in the formatormation of a government, and in that government's conduct of the affairs of the nation through
the promotion of legislation or the implementation of administrative policfull nt isn of the inte interesterests of s of all communities;
(1) &nbssp;&nnbsp;; bsp; to theo the extent that the interests of d of different communities are seen to conflict, all the interested
partiestiateood faith in an endeavour to reach agreement;
(1) &nbbsp;& bsp; the equitable sharing of politpolitical power amongst all communities in Fiji is matched by an equitableing of
economic and commercial power to ensure that all communities fully benefit from the the nation's economic progress.'
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The previous opinion of tourt in The President of the Republic of Fiji v. Inoke Kubuabola and Ors - Supreme CourtCourt Misc. No. 1/1999 (the 1999 Supreme Court Opinion), amply articulated the purpose and objective underlying sections 64 and 99, the same provisions under consideration in this reference.
This was further affirmed in Mahendra Pal Chaudhary v. Laisenia Qarase and Ors - Misc. No. 1/2001 (the 2002 Court of Appeal Opinion)
I am content to quote from the Supreme Court Opinion as what the Court said is entirely apposite to the task of interpretation in
this reference. At page 6 the Court said:
"….a key concept embodied in the Constitution is power sharing. The ques referred to the Court are are essentially concerned
with how this concept operates in relation to the Senate and the Cabinet..."
Then at pages 8 to 1er the heading 'The True Interpretation of the Rights regarding Senate Appointments", ot;, the Court said:
"A central purposehe 1997 Constitution is the sharing of power. The Republic of the Fiji Islands is declared ared 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.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> After quoting section 3(a) the Court continued at page 9:
It follows that there is a distrib of political power quite different from that which may be y be familiar under a traditional Westminster
pattern. .... Political power is divided among groups, persons and parties; the share of each is in some way limited.
The pattern is apparent when one at sections 64 and 99. For example, under section 64 a vera 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
is 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 po. By section 99(3) he or she must establish multi-party Caby Cabinet ....
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(l)(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 the 9 Senate appointments
under section 64(l)(b), the Leader of the Opposition also has a right to nominate 8 under section 64(l)(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(l)(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 words "must", it cannot apply if no party other 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…….
Once the spirit, objective and pattern of the provisions are considered together with words that have to be interpreted, the true meaning becomes clear enough.
Question 3
Where as in this case, only one party was entitnder the requirements of seof section 99(5) to be considered by the Leader of the Opposition in determining his nominations to the President under section 64(2) of the Constitution:
(a) &nbs; &nbbsp;&&nbp; IsIs that panty entitled to all eight of the nominations which the Leader of Opposition is required to submit to the President under section 64(l)(c)? or,
(b) p; Is that 'entitled pled party" entitled only toly to the number of nominees which equates to its size in the House of Representative?
Question 4
If Question 3(b) above is answered in the affirmative, then how mf the 8 seats ought I allocate to the only 'entitled party'arty'
under section 64(2), and how ought I allocate the remaining seats?
Section 64 provides how the Senate is to be constituted:
(1) & The Senate consist3 of mbemembers, of whom:
(a) &n1sp; e aroinppd byethe Pthe President on the advice of the Bose Levu Vakaturaga;
&nb">
(b) &nbssp;&nnbsp; 9 are9 are9 are appointedhby the President on the advice of the Prime Minister;
(c) &nbssp;&nnsp;& 8sp; 8 are aare appointed by the President on the advice of the Leader of the Opposition; and
(d) &nbbsp;& 1 is 1 is 1 is appointed by the President on the advice of the Council of Rotuma.
(2)&nbbsp; The leaoers ch ea t of thef 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 wheapan 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).
In applying the principles of power sharing that have inspired these provisions, and taking into accoun spirit of the Constitutionution,
having further regard to the social and cultural context in which it was drafted, what should the true interpretation be that best
promotes that purpose and objective.
Is it to be the interpretation advocated by learned Counsel for Mr. Chaudhary, whiuld result in only parties ties who are entitled
to be invited to participate in Cabinet, pursuant to section 99(5), having the privilege of nominating persons to the Leader of Opposition
for his advice to the President to be appointed Senators under section 64(l)(c), whatever the proportion of their membership in the
House of Representatives may be; or is it to be an interpretation which would accord with the position taken by the then Leader of
Opposition in his advice to the President, which would result in an "entitled party or parties' only being entitled to nominate
candidates in proportion to the size of their respective membership in the House of Representatives? Which interpretation would best
promote the spirit of multiparty government and the purpose and objective of sharing of power?
The interpretation that only "entitled party or parties" are entitled to nominate for the 8 Senate seats that the Leader
of Opposition is to advise on, could conceivably result in only parties who are part of Cabinet dominating Senate and thus government.
This would be because the Leader of Opposition would have no discretionary ability to nominate candidates who represent other minor
parties in opposition or indeed from the community generally.
The interpretation that accords with the view taken by the LeadeOpposition accords with the general spirit of the Constituttitution
that government power is to be shared by as wide a cross-section of political parties as possible and in the case of the Senate,
indeed, as wide a cross-section of the community as possible. This interpretation would first accord with the requirement of section
64(2) that the "entitled party or parties" would be given first preference to nominate candidates in proportion to their
membership in the House of Representatives, and then the Leader of Opposition would have the same discretion as the Great Council
of Chiefs, the Prime Minister and the Council of Rotuma in nominating whoever else in his absolute discretion, subject only to section
64(4), to fill the balance of the 8 seats as may remain.
This, in my respectful opinion, is the meaning that is intended by section 64, read as a whole, together with section 99. It, in my
opinion, best promotes the spirit of the Constitution, and achieves the purposes and objectives of power sharing in government.
The composition of the Senate is inteto be far more broadly community based. As will be noted the members nominated by the GreatGreat
Council of Chiefs constitute the largest single group who are non-political party partisan. The Great Council of Chiefs have the
widest possible discretion to nominate for membership of the Senate, subject only to section 64(4), as membership of Senate is not intended to be political party partisan. In my respectful opinion, this is to demonstrate the full meaning of power sharing.
In like manner, the Prime Minister is also ed fully discretion as to whom he may nominate for appointment under his power, subject
only only to section 64(4). The Council of Rotuma is also unrestricted, except by section 64(4), in its discretion to nominate its
single candidate.
The essence of this interpretation is that the L of Opposition retains the qualified discretion at all time times as to whomever-else
he may nominate in his advice to the President.
The 1999 Supreme Court Opinion in fact acknowledged this discretion in the eventuality that there were no "entitled party or
parties" who should be given first preference to nominate candidates for appointment to the Senate.
It is conceivable that an entitled party or partiether in government or not, may elect not to nominate personersons for appointment
to the Senate. Is the Leader of the Opposition to be denied any discretion to nominate candidates for the Senate, from either other
minor parties or the community at large? I think not. This would result in section 64(2) being applied in a most impractical way.
I prefer an interpretation that is sensible, reasonable and which gireater effect to and promotes the purposes and objectives oves
of power sharing in government. This is that an 'entitle party or parties' is or are not entitled to all 8 of the nominations which
the Leader of Opposition is required to submit to the President under section 64(1)(c). Their preferential entitlement under section
64(2) is subject to and 'is proportionate to the size of the membership of those parties in the House of Representatives.'
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> If that proportional entitlement results in less than the full 8 nominations available toLeader of the Opposition, ton, then he or
she has the discretion to nominate the balance, in the same way the Great Council of Chiefs, the Prime Minister and the Council of
Rotuma.
I repeat that it is conceivable that the "entitled party or parties" may elect not to nominatdidate or candidates.
The result of this proportional interpretation is that the "entitled party or parties" shall be end to the proportion of
the the 8 seats available to the Leader of the Opposition according to the size of their membership in the House of Representatives.
In my respectful opinion the interpretation and advice given by the Leader of the Opposition to His Excellency the President is consistent
with my opinion. His Excellency the President appeared to accede to that advice and not the contrary advice by Mr. Chaudhary. The
Constitution should be capable of being so understood by lay people reasonably and sensibly as to its meaning, effect and application.
I apply this interpretation to the issues posed by Questions 3 and 4 in this way. The FLP obtained 27 seats which equates to 38% of
the total number of seats in House of Representatives, and as an "entitled party" it is only entitled to 38% of the 8 Senate
seats available to the Leader of the Opposition to advise the President to appoint, which works out to 3.04 seats which the Leader
of the Opposition generously rounded off to 4 seats. The Leader of Opposition was then entitled to nominate for the remaining 4 seats
from whom-so-ever he chose.
Hon. Sir Arnold Amet
Judge of Supreme Court
Solicitors:
Office of the Solicitor General for theident
G P Lala & Associates, for M P Chaudhry, First Interested Party
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