In re the Constitution, Reference by HE the President (Dissenting Judgment) [2002] FJSC 3; MISC 001.2001S (15 March 2002)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA
(ORIGINAL JURISDICTION)
MISCELLANEOUS NO. 1 OF 2001S

BETWEEN:

IN THE MATTER OF SECTION 123 OF THE CONSTITUTION
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 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, 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 the opinion of the majority. I agree with that opinion in respect of Reference Questions 1, 2 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 constitution is to look to the constitution 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 of 1997, enacted by Constitution Amendment Act – 13 of 1997, 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) 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

(b) regard must be 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 6 the principles which the conduct of government is to be based 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) in the formation 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 policies, full account is taken of the interests of all communities;

(i) to the extent that the interests of different communities are seen to conflict, all the interested parties negotiate in good faith in an endeavour to reach agreement;

(l) the equitable sharing of political power amongst all communities in Fiji is matched by an equitable sharing of economic and commercial power to ensure that all communities fully benefit from the nation’s economic progress.’

The previous opinion of this Court in The President of the Republic of Fiji .v. Inoke Kubuabola and Ors – Supreme Court 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 Chaudary 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 questions referred to the Court are essentially concerned with how this concept operates in relation to the Senate and the Cabinet...”

Then at pages 8 to 12 under the heading ‘The True Interpretation of the Rights regarding Senate Appointments’, the Court said:

“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.

After quoting section 3(a) the Court continued at page 9:

It follows that there is a distribution of political power quite different from that which may 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 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 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 power. ..... By section 99(3) he or she must establish multi-party 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(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 the 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).

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 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 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) Is that party entitled to all eight of the nominations which the Leader of Opposition is required to submit to the President under section 64(1)(c)? or,

(b) Is that “entitled party” entitled only 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 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?

Section 64 provides how the Senate is to be constituted:

(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 election to the House of Representatives.

In applying the principles of power sharing that have inspired these provisions, and taking into account the spirit of the Constitution, 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. Chaudary, which would result in only parties 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(1)(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 multi-party 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 Leader of Opposition accords with the general spirit of the Constitution 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 intended to be far more broadly community based. As will be noted the members nominated by the Great 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 enabled fully discretion as to whom he may nominate for appointment under his power, subject 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 Leader of Opposition retains the qualified discretion at all 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 of parties” who should be given first preference to nominate candidates for appointment to the Senate.

It is conceivable that an entitled party or parties, either in government or not, may elect not to nominate persons 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 gives greater effect to and promotes the purposes and objectives 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.”

If that proportional entitlement results in less than the full 8 nominations available to the Leader of the Opposition, then he or she has the discretion to nominate the balance, in the same way as 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 nominate a candidate or candidates.

The result of this proportional interpretation is that the ‘entitled party or parties’ shall be entitled to the proportion of 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. Chaudary. 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 the President
G P Lala & Associates, for M P Chaudhry, First Interested Party