In re the President's Reference, Qarase v Chaudhry - Decision of the Court [2004] FJSC 1; MISC 001.2003 (9 July 2004)

IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA
ORIGINAL JURISDICTION

Miscellaneous Case No 1 of 2003

IN THE MATTER of Section 123 of the Constitution Amendment Act 1997

IN THE MATTER of a Reference by His Excellency the President of Fiji for an opinion on questions relating to the interpretation of Section 99 of the Constitution Amendment Act 1997

LAISENIA QARASE
First Interested Party

MAHENDRA PAL CHAUDHRY
Second Interested Party

Coram: Hon Justice Daniel Fatiaki, President of Supreme Court
Rt Hon Justice Thomas Gault, Judge of Supreme Court
Hon Justice Keith Mason, Judge of Supreme Court
Hon Justice Robert French Judge of Supreme Court
Hon Justice Mark Weinberg, Judge of Supreme Court

Hearing: Tuesday, 11th May 2004, Suva

Counsel: Mr Stephen Gageler SC ]
Ms Nehla Basawaiya] for the First Interested
Ms Rakuita Vuniwaqa] Party

Professor George Williams]
Mr Gyaneshwar Prasad Lala] for the Second Interested
Ms Shoma Devan ] Party

Date of Judgment: Friday, 9th July 2004

OPINION OF THE COURT

Introduction and Background

1. On 17 October His Excellency the President of Fiji referred to the Supreme Court under Section 123 of the Constitution Amendment Act 1997 ("the Constitution"), questions about the effect of section 99 of the Constitution relating to the appointment of Ministers and the representation of political parties in the Cabinet. The section establishes a mechanism for implementing power sharing in Fiji through the creation of a multi-party Cabinet.
   
2. It has already been settled by the judgment of this Court delivered on 18 July 2003 that the Prime Minister is under a constitutional obligation to consult with the Leader of the Fiji Labour Party and to advise the President to appoint as ministers and appoint to Cabinet such number of parliamentary members of the Fiji Labour Party as is in proportion to their numbers in the House of Parliament. The questions referred to the Court relate to the numbers of persons to be so appointed.
   
3. The resolution of the questions referred to the Court depends upon the interpretation of section 99(5). That interpretation must be undertaken by reference to the meaning and context of the words used in section 99(5), the purpose of the provision, the drafting history of the Constitution and the relevant principles in the Compact which is set out in section 6.
   
4. The interested parties are the Prime Minister, Mr Laisenia Qarase, who is the leader of the Soqosoqo ni Duavata ni Lewenivuana Party (SDL) and Mr Mahendra Pal Chaudhry, who is the leader of the Fiji Labour Party (FLP).
   

The Questions in Context

5. The questions involve the method of calculating the apportionment of positions in a multi-party Cabinet.
   
6. Section 99 of the Constitution provides:
   

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.

The background facts are not in dispute and may be summarised as follows.

7. There are 71 members in the House of Representatives elected in accordance with the Constitution (section 51 in particular) to represent single-member constituencies. At the time of the hearing the composition of the House of Representatives in consequence of the general election and subsequent developments was:
   

SDL - 32 members

FLP - 28

Conservative Alliance Matanitu Vanua (CAMV) - 6

New Labour Unity Party (NLUP)- 2

United General Party- 1

Independent- 2

8. On 10 September 2001, the President appointed Mr Qarase as Prime Minister under section 98 of the Constitution. On that day Mr Qarase wrote to Mr Chaudhry extending an invitation to join Cabinet. Mr Chaudhry replied accepting such invitation and stating his availability to engage in a consultative process.
   
9. On and shortly after 12 September 2001, acting on the advice of the Prime Minister and under section 99(1) of the Constitution, the President appointed a Cabinet of 21 members of whom one was a member of the Senate and 20 were members of the House of Representatives. The 20 members from the House had the following allegiances:
   

SDL-16

CAMV- 2

NLUP -1

Independent- 1

10. On 24 April 2002 the High Court made a declaration in the following terms:
    

"That as and from 10 September 2001 the [Prime Minister] was and is required and obliged by the Constitution to consult the Leader of the Fiji Labour Party pursuant to section 99(9) of the Constitution and thereafter:

(i) to advise the President to appoint as Minister; and

(ii) to appoint to the Cabinet;

such number of parliamentary members of the Fiji Labour Party as is in proportion to their numbers in the House of Representatives."

11. On 24 May 2002 the Court of Appeal dismissed an appeal from the judgment of the High Court.
    
12. On 10 March 2003, acting on the advice of the Prime Minister and under section 99(1) of the Constitution, the President appointed a further member of SDL to a position as a Minister within the Cabinet.
    
13. On 18 July 2003 the Supreme Court dismissed an appeal from the judgment of the Court of Appeal (Qarase v Chaudhry [2003] FJSC 1) (hereafter ‘the 2003 Supreme Court Judgment’).
    
14. Since that date, the Prime Minister and Mr Chaudhry have met and corresponded in relation to the formation of a multi-party Cabinet. The Prime Minister has indicated his intention to reconstitute the Cabinet by increasing its number from 22 to 36 and by selecting for appointment 14 members of FLP. For various reasons, the invitation has not been accepted. One point of disagreement between the two party leaders concerns Mr Chaudhry’s contention that section 99 of the Constitution entitles FLP to 17 positions in a Cabinet of 36. The underlying disagreement has thrown up the issues raised in Questions 1 and 3 in the President's Reference.
    

The Questions Referred and the Answers Proposed By the Interested Parties

15. The Questions referred are:
    

1. On their proper construction, do the words "in proportion to their numbers in the House of Representatives" in sub-section 99(5) of the Constitution and in the declaration made by the High Court on 24 April 2002 refer to:

(1) the proportion of:

(i) members of a party whose membership of the House of Representatives is at least 10% of the total membership of the House of Representatives; to

(ii) the total membership of the House of Representatives;

(2) the proportion of:

(i) members of a party whose membership of the House of Representatives is at least 10% of the total membership of the House of Representatives; to

(ii) the total membership of all parties whose membership of the House of Representatives is at least 10% of the total membership of the House of Representatives; or

(3) some other, and if so what, proportion?

2. Is the proportion of positions in Cabinet to which a party is entitled under subsection 99(5) to be determined:

(1) as at the date of invitation;

(2) from time to time as the composition of the House of Representatives changes; or

(3) as at some other and, if so, what time?

3. Therefore, is the proportion of positions in Cabinet to which the FLP is currently entitled under subsection 99(5):

(1) 39%

(2) 47%

(3) some other, and if so what, percentage?

16. The Prime Minister proposes that Question 1 should be answered in accordance with its first suggested response. Mr Chaudhry proposes the second suggested response.
    
17. The parties agree that Question 2 should be answered in accordance with its second suggested response, a proposition with which this Court also agrees for reasons set out in the 2003 Supreme Court Judgment at [117]. Section 99 speaks continuously in the present. This is why we shall adopt the expression "qualifying party" to refer to parties entitled to receive invitations to be represented in Cabinet.
    
18. Question 3 sets out the mathematical consequences of the Court’s answers to the earlier Questions in light of the current representation of the political parties in the House of Representatives and the Prime Minister’s intention to have a Cabinet of 36. The Prime Minister proposes 39% (ie 14 FLP Cabinet positions) and Mr Chaudhry proposes 47% (ie 17 FLP Cabinet positions) as the answer to Question 3. (The slight variation between the figures and those stated in the President’s Reference reflects the agreed consequences of recent by-elections.)
    

The 2003 Supreme Court Judgment

19. The 2003 Supreme Court Judgment discusses the background of section 99 and the interpretative principles governing constitutional litigation. It reaffirmed principles drawn from The President of the Republic of Fiji Islands v Kubuabola [1999] FJSC 8 (hereafter the ‘1999 Supreme Court Opinion’) and In the matter of a Reference for an Opinion by his Excellency the President of the Republic of the Fiji Islands on the interpretation of sections 64 and 99 of the Constitution (Amendment) Act 1997 [2002] FJSC 11 (hereafter ‘the 2002 Supreme Court Opinion’). The 2003 Supreme Court Judgment was a primary point of reference for the submissions of the parties, which only diverged in relation to par [142] thereof (set out below).
    
20. The outcome of the 2001 election was that the only parties with more than 10% of the total membership of the House of Representatives were SDL and FLP. The Prime Minister advised the President to appoint Ministers from SDL, CAMV, NLUP and Independents, taking the view that Mr Chaudhry's response to his invitation of 12 September 2001 was tantamount to a rejection of the invitation to FLP to be represented in Cabinet, thereby discharging the Prime Minister’s obligation to FLP under section 99. This Court (agreeing with the Court of Appeal) found that the Prime Minister's invitation had been consistent with his obligation under section 99(5), but that the Prime Minister was not entitled to treat Mr Chaudhry’s response as a rejection of the invitation or as dispensation from the constitutional duty to consult with Mr Chaudhry in relation to the selection of members of FLP for inclusion in the Cabinet. The ensuing declaration (made by the High Court, and upheld in the Court of Appeal and the Supreme Court) is set out above.
    
21. It is unnecessary to repeat at length this Court's discussion about the approach to the interpretation of the Constitution at paras [68]ff of the 2003 Supreme Court Judgment. For present purposes, it is sufficient to refer to the statement (at [71]), drawn from the 1999 Supreme Court Opinion, that "the sharing of power was a central purpose of the 1997 Constitution"; and the recognition (at [86]) that the system of multi-party representation in Cabinet was, in the words of the Joint Parliamentary Select Committee (JPSC), to be made subject to a "constitutional threshold" that was embodied in section 99. The Court also observed (at [93]) that the Constitution itself established an "equitable sharing of political power" by the requirements for the composition of the Parliament in sections 51 and 64 and the requirements for the composition of the Cabinet in section 99: "In the two manifestations of political power - legislative and executive - express provision was made for power sharing."
    
22. The construction of section 99 was expounded at paras. [97ff]. Because of relevance to the particular issues in this Reference we repeat the following paragraphs from the 2003 Supreme Court Judgment:
    

98. Subsection 99(1) establishes the basic mechanism for the appointment and dismissal of Ministers. Appointment and dismissal is the function of the President and the President alone. But in carrying out the function he or she acts upon the advice of the Prime Minister. By virtue of subs 96(1) he or she can appoint or dismiss Ministers only upon that advice. The Prime Minister is therefore the sole repository of authority to provide to the President, advice on the appointment or dismissal of Ministers upon which the President acts. That authority is unimpaired by the obligation under subs 99(3), to establish a multi-party cabinet, for it is the Prime Minister who selects persons from parties other than his or her own party for appointment (subsection 99(9)).

99. Subsection 99(2) prescribes, as a qualification for ministerial appointment, membership of the House of Representatives or the Senate. It should be read with section 105(1)(d) which provides that the appointment of a Minister terminates if the Minister ceases to be a member of Parliament....

100. The primary obligation of the Prime Minister to establish a multi-party cabinet is created by subs 99(3). The text is explicit. He or she ‘must’ establish such a Cabinet. That obligation is to be discharged "in the way set out" in section 99. A literal interpretation of subsection 99(3) would read it as creating an unconditional obligation defining, by reference to the balance of section, the way in which that obligation is to be discharged. However as noted above, section 82 of the Constitution envisages the possibility (unlike the traditional Westminster model) that all parties are represented in cabinet and that accordingly there can be no leader of the opposition. The balance of the section recognizes that it may not be possible for the Prime Minister to discharge the obligation it imposes. For it may be that all parties to whom invitations are extended under subsection 99(5) to be represented in the cabinet decline the invitation. In that event the Prime Minister "may look to his or her own party or coalition of parties to fill the positions in Cabinet." The obligation is thus qualified by the impossibility of its fulfilment where invitations are declined.

....

104. The provision for a "multi-party Cabinet" in section 99 of the Constitution represents a modification of the Westminster model....

106. Certain familiar incidents of cabinet government established under the Westminster system are apparent from the text of the Constitution. First there is the requirement that "the Cabinet is collectively responsible to the House of Representatives for the Governance of the State" (subsection 102(1)). Linked to that is the requirement that governments must have the confidence of the House of Representatives (section 97). The notion of collective responsibility has historically been expressed in terms of cabinet solidarity. That is to say, Ministers who are members of the Cabinet will publicly stand by decisions of the Cabinet and, if unable to do so, will resign. That this traditional concept informs the term "collectively responsible" in s.102 is reinforced by the terms of the Oath or Affirmation of Office that each person appointed as a Minister is required; by section 101, to make before the President. That Oath or Affirmation is set out above and includes a promise not to disclose Cabinet deliberations.

107. The objective of a multi-party Cabinet to which section 99(3) is directed, is capable of being achieved consistently with these constitutionally recognized attributes of Cabinet government in Fiji. For a Cabinet may consist of members of different parties who bring to it differing perspectives and policies and yet reach collective decision after discussion, negotiation and compromise. It may be that the convention of Cabinet solidarity will be satisfied in such a case by a dissenting Minister refraining from publicly criticizing a decision contrary to his own party policy. It is not to be expected, at this early stage of the implementation of the 1997 Constitution, that there will be settled conventions to cover all contingencies or difficulties. Conventions cannot be the subject of judicial prescription. They are matters for the elected representatives of the people to develop in working out the future governance of their nation. That, it is hardly necessary to say, mandates a degree of give and take and good faith on all sides.

....

109. Subsection 99(4) is a statement of the principles underpinning the way in which the Cabinet is to be composed. It gives content to the term "multi-party cabinet" in s99(3) by requiring that the composition of the Cabinet "...as far as possible fairly represents the parties represented in the House of Representatives". The term "as far as possible" reflects the reality that the parties may not be able to be represented in Cabinet in exact mathematical proportion to their seats in the House. It also reflects the practical limitation that some parties may decline the Prime Minister’s invitation.

....

110. Subsection 99(5) then imposes upon the Prime Minister the precise obligation to "...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." Again the obligation is emphatically expressed. The Prime Minister "must" extend the invitation to all eligible parties. The invitation to the parties contemplated by subsection 99(5) is an invitation "to be represented in the Cabinet". This is not simply an invitation for their members to be there without any agenda or policies of their own. This is a provision which advances the central constitutional purpose of power sharing.

111. Subsection 99(5) by referring to representation of the eligible parties allows that their representatives may take into Cabinet deliberations their own policies and agendas. If they do so however, they do so subject to the requirements of collective responsibility and confidentiality which are recognized in the Constitution as aids to effective government. This may mean a more difficult Cabinet to manage than a Cabinet whose members belong to the same party or a coalition that has worked out some consensus before its formation. But this is the kind of Cabinet that is envisaged by the Constitution and it cannot be rejected as unworkable in principle because of that difficulty.

112. Division of opinion in cabinets is nothing new. The conventions of collective responsibility and cabinet confidentiality respond to division and allow conflict in Cabinet to be managed so that effective government is possible. The Prime Minister is entitled therefore to say that his own appointees intend to implement the policies of his party. That is not to prevent representatives of other parties from urging their own policies where they arise. Nor is it beyond the bounds of possibility that negotiated outcomes in the national interest will be reached. Section 99 aims to encourage debate on contentious policies including debate across party lines. It may also be observed that there is much in the routine business of government that will not involve any real clash of policy at all. Indeed much of the routine work of individual Ministers does not require references to Cabinet.

113. Subsection 99(7) provides for an imperfect form of multi-party cabinet where one or more, but not all, eligible parties decline the Prime Minister’s invitation. The allocation of ministerial positions is re-determined in accordance with the proportions of the accepting parties inter se. Subsection (7) is of importance for the present case in that it refers to the "entitlements" of parties to "Cabinet positions." This lies against the proposition that the obligation to invite parties to be represented is no more than any obligation to treat and to negotiate in good faith. The purpose of the mandatory invitation under section 99(5) is, save when any party declines to participate, to ensure that each party is, in fact, represented in Cabinet. It is such actual representation that is described in mandatory language as an "entitlement" in section 99(7) and which is protected from dilution by sub-section 99(6) and (7).

114. Subsection 99(8) as earlier noted, recognizes that the Prime Minister’s primary obligation may not be capable of being discharged.

115. Subsection 99(9) leaves the formal power of selection of persons from parties other than his or her own, in the hands of the Prime Minister subject to consultation with the leaders of those parties. In the ordinary course it is likely that the persons appointed will be appointed with the consent of their party or its leadership.

116. The structure of section 99 has a certain linear logic about it. It will, however, operate in the context of political posturing and negotiation. Negotiation between the Prime Minister and the leaders of various parties may take place in advance of any formal invitation or concurrently with its issue. There may be interrelated discussions about the formation of coalitions or the development of protocols or understandings in relation to certain areas of policy. The persons to be appointed as ministers and the portfolios allocated to them will also, in all probability, have a role to play in such negotiations. Equally, in determining whether or not to accept an invitation, parties will not doubt consider whether it might be preferable to remain out of Cabinet and in opposition. It must also be remembered that the appointment of the Prime Minister precedes the establishment of the Cabinet. That appointment may itself have been the product of negotiations leading to the formation of coalitions or undertakings of support.

....

130. As this Court said in the ‘1999 Supreme Court Opinion’ at page 8:

"The Court is satisfied that the concept of power sharing in the Constitution requires invitation 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".

....

135. The order made [on 24 April 2002] correctly states that the Prime Minister must consult with the Leader of the FLP under section 99(9) and advise the President to appoint the number of persons stated to the Cabinet. Subject to that obligation, the composition of the Cabinet, the identification of the persons to be Ministers and the operations of the Cabinet are not constitutionally prescribed. They are matters to be determined by political practice and perhaps eventually, by constitutional convention, which are inherently more flexible than constitutional prescription.

136. There is not, in our opinion, any aspect of the circumstances of the present case which suggests that this flexibility should be constrained by making such matters potentially justiciable in a constitutional context. The Constitution provides for a range of pertinent contingencies which may arise, including disagreement over policy.

137. First, there is express provision for the consequences of a party declining an invitation in subsection 99(7) and (8).

138. Secondly, the Prime Minister retains the authority to select persons for appointment as Ministers and to allocate portfolios [sections 103(1) and (2)]. This process of selection and allocation may well accommodate differences in policy. The right of a party leader to be consulted under section 99(9), although his or her views are entitled to weight and the process must be a genuine consultation, is not a right of concurrence. This contrasts with the right of that leader to nominate a member of Senate under section 64(2).

139. Thirdly, the Government, manifest in the Cabinet, must collectively retain the confidence of the House of Representatives under section 97.

140. Fourthly, the Cabinet is collectively responsible to the House of Representatives under section 102(1).

141. Fifthly, each Minister is individually responsible to the House of Representatives [section 102(2)].

142. Furthermore, when, as has occurred there are only two parties which have more than 10% of the membership of the House, the Prime Minister can ensure that the majority party has a majority in the Cabinet. [subsections 99(4), (5) and (6)]. It may also be noted that so long as the Prime Minister’s Party has a majority of the total of parliamentary seats held by that party and all other eligible parties it will have an entitlement to a majority of the positions in the Cabinet. For assuming each eligible party accepts the invitation for representation in the Cabinet its entitlement to representation will be measured by the proportion of the number of parliamentary seats it holds to the total number of parliamentary seats held by the Government or Coalition party and all eligible parties. On that basis, in the present case, The Prime Minister’s party has an entitlement to a majority position in Cabinet.

143. These structural elements should enable the creation of a workable government, without the necessity of a prior coalition agreement. Whether such an agreement is or is not desirable, and if it is desirable what should be the scope and detail of its content, is not a matter that should be constitutionalised. It can be left to the political exigencies of the times and the ultimate sanction of the ballot box. An agreement of this character is not pre-condition of membership of the multi-party Cabinet envisaged by section 99 of the Constitution.

23. Mr Chaudhry has placed particular reliance upon para [142] above in his correspondence with the Prime Minister on behalf of FLP and in his submissions in this Court. The dicta in the third and fourth sentences were not the product of detailed submissions and close scrutiny of earlier precedent involved in the present Reference. As will appear, alternative scenarios and the position of Independents have triggered a full examination of the issues, including fresh issues perceived as likely to arise in the working out of this complex constitutional provision.
    

The Competing Submissions

24. The focus of the dispute is the interpretation of section 99 (5), which provides:
    

"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."

25. We shall hereafter refer to parties whose membership in the House comprises at least 10% of the total membership of the House as "qualifying parties". But we emphasise that this does not pre-empt the issue whether the Prime Minister’s own party is within the contemplation of subsection (5) either as a party entitled to be invited or as a party whose proportionate "entitlement" to Cabinet positions is somehow fixed by subsection (5).
    
26. The parties to this Reference agree that, in the current circumstances, subsection (5) requires the Prime Minister to invite FLP to be represented in the proposed Cabinet of 36. That obligation and FLP’s correlative entitlement to receive an invitation stems from the fact that FLP is undoubtedly a qualifying party within the purview of subsection (5). The Prime Minister has made such an invitation.
    
27. The point of disagreement concerns the words "in proportion to their numbers in the House" and the identification of the denominator of the relevant fraction. The current numerator is agreed at 28, ie the present "numbers in the House" of FLP.
    
28. The Prime Minister's submission is that the correct denominator is 71, ie the present membership of the House, there being no current vacancies (cf section 50). This produces 39% which translates to an entitlement to 14 FLP positions in a proposed Cabinet of 36. Mr Chaudhry’s submission is that, in the present circumstances, the correct denominator is 60, ie 28 plus 32, being the current numbers of the FLP and SDP parties, those being the only parties to have passed the 10% threshold referred to in subsection (5). This produces 47% which translates to an entitlement of 17 positions in the proposed Cabinet.
    
29. Mr Chaudhry submits that a direct and authoritative answer is given in para [142] of the 2003 Supreme Court Judgment (set out above). This, he submits, should be the end of the matter. The Prime Minister counters with reliance upon principles drawn from other portions of the 2003 Supreme Court Judgment and from the 1999 and 2002 Supreme Court Opinions. It was contended that para [142] was obiter, alternatively that it ought not to be followed in light of issues exposed and more fully debated in this Reference. Respect for precedent is important in constitutional matters. But the parties are entitled in the circumstances to have the underlying issues squarely addressed, if only as a prelude to addressing such precedential questions as emerge when the earlier decisions are closely analysed.
    
30. The Prime Minister submits that subsection (5) addresses a single matter in a composite manner. The matter is the entitlement of qualifying parties to be invited to be represented in the Cabinet in proportion to their numbers in the House. The subsection imposes a duty on the Prime Minister to make an invitation to all qualifying parties and confers a correlative right on those parties to receive such an invitation. The invitation is a mandatory first step in the establishment of a multi-party Cabinet by the Prime Minister through the processes of section 99 as a whole.
    
31. According to the Prime Minister, the (qualifying) parties referred to in subsection (5) exclude the Prime Minister's own party, a proposition for which senior counsel for the Prime Minister cited the 1999, 2002 Opinions and 2003 Supreme Court Judgment . (see para [130] of the 2003 Judgment, set out above and the passages from the earlier Opinions set out below).
    
32. The identification of parties entitled to be invited in accordance with subsection (5) turns upon the percentage of seats held by them in the House. By definition, the denominator of the relevant fraction for that exercise is the membership of the House as a whole, ie 71 members (unless there are casual vacancies). Because the latter part of subsection (5) confers on the invited party an entitlement to proportionate representation in Cabinet (subject to the following subsections), the Prime Minister submits that it is natural and reasonable to construe the content of the ensuing entitlement in the same way, and as based upon the same denominator. As Mr Gageler SC put it in his submissions to this Court:
    

"That is, as a matter of construction the reference to their numbers can only refer to the numbers of each qualifying party, which necessarily excludes the Prime Minister's party; and the reference to the proportion of their numbers in the House, in our submission can only be read distributively in the same sense as the first part of the same sentence. So, ... for each qualifying party the proportion referred to is the proportion of its membership in the House to the total number of members in the House. That is, for both parts of the same sentence, the qualification part and the entitlement part, one uses the same numerator and the same denominator."

33. It was further submitted on behalf of the Prime Minister that this approach to subsection (5) was in no way undermined by the later subsections. Subsections (6), (7) and (8) refer to the "Prime Minister's (own) party", but the provisions were said to have their own work to do in the context of addressing the consequences of the Prime Minister selecting a member of a non-qualifying party to be a Minister following, and in the context of, the making of an invitation to a qualifying party and of a party or parties declining invitation(s) to be represented in the Cabinet [subsection (7) and (8)]. On the Prime Minister’s submission, subsection (6) had its own work to do in relation to the later subsections. On this analysis, subsections (6) to (8) do not enlarge the operation or scope of subsection (5) which, according to the Prime Minister, does not contemplate the Prime Minister issuing an invitation to his or her own party.
    
34. The Prime Minister responded to submissions from Mr Chaudhry based upon section 64 of the Constitution and the parallels drawn between that section and section 99 in earlier Opinions of this Court. It was contended that section 64(2) appears in a different context, serves a different function and uses different language. We shall refer to these submissions in more detail below. For present purposes, it suffices to point out that the key distinction drawn in the Prime Minister's submission between section 64 and section 99 is that section 64(2) makes an exhaustive allocation of a defined number of seats (in the Senate), whereas section 99(5) deals only with the entitlement of qualifying parties (excluding the Prime Minister’s party) to participate in the Cabinet.
    
35. Implicit in these submissions (and later made explicit in Mr Gageler’s answer to questions from the Bench) is the corollary that subs-sections (6) to (8) of section 99 are not exhaustive as to the distribution of Cabinet positions. They perform their own work according to their terms, spelling out the entitlements of fair representation [cf subsection (4)] in a multi-party Cabinet. When that work is done, the Prime Minister is free to fill the residue of unallocated Cabinet positions, as he or she wishes, in the manner contemplated by subsections (1), (2) and (9). On this approach, no part of section 99 confers any ‘entitlement’ upon the Prime Minister’s party to any quota or proportion of Cabinet positions. The Prime Minister is simply free to appoint anyone who is a member of Parliament to the Cabinet positions that are unallocated to qualifying parties through the (limited) operation of subsection (5), as qualified by the later subsections.
    
36. This submission can be illustrated by applying the Prime Minister's approach to section 99 to the current membership of the House. On the Prime Minister's approach, 14 Cabinet positions are to be offered to FLP in relation to his proposed Cabinet of 36. If that invitation is declined, then subsection (7) and (8) will work out the entitlements of all parties (including the Prime Minister’s) to the redistributed 14 Cabinet positions. Some will pass to the Prime Minister's party by right pursuant to subsection (7), others to that party at the Prime Minister's option pursuant to subsection (8). Subsection (6) defines the consequences of the Prime Minister selecting for appointment to Cabinet a person from a non-qualifying party, but only as necessary "for the purposes of this section". This exercise will leave 22 positions unaffected by the provisions of subsections (5) to (8). According to this submission, the Prime Minister is, and always was, free to allocate these 22 positions as he wishes, to members of his party, members of coalition parties, Independents or even members of FLP. The Prime Minister’s submission is that only 14 Cabinet positions are controlled by the mechanism spelt out in subsections (5) to (8). The balance of Cabinet positions may be offered to any member of the House or Senate, at the Prime Minister's discretion [subject to compliance with subsection (9) where applicable].
    
37. On this approach, there is no undistributed residue of Cabinet positions, because the generality of the language of subsections (1) to (3) ensures that the Prime Minister is constitutionally able to fill the Cabinet of his chosen size. This approach also treats subsection (4) as essentially prefatory to what follows, but without being a substantive provision that assists Mr Chaudhry. [Mr Chaudhry did not place any direct reliance on subsection (4) in his contentions on the Reference.]
    
38. The Prime Minister sought to demonstrate the impracticability of the interpretation for which Mr Chaudhry contends. He reminded the Court of its observation in the 2003 Supreme Court Judgment (at [68] citing from the 1999 Supreme Court Opinion) that: "the Constitution has been drawn up with an eye to political realities and likelihoods". The Constitution also directs preference, in the interpretation of a provision, for a construction that would promote the purpose or object underlying the provision, taking into account the spirit of the Constitution as a whole [cf section 3(a)].
    
39. These general observations were the prelude to a more specific submission about the capacity of Mr Chaudhry's interpretation to undercut accepted principles and practices of Cabinet government. Examples were given of the spectre of unworkability of a system whereby a Prime Minister might find Ministers from his or her party and coalition partners invariably outnumbered in Cabinet. Thus, to take the clearest hypothetical example, assume five parties with members in the House of Representatives: Party A with 40% of the seats, Party B with 45% and Parties C, D and E with 5% each. Parties A, C, D and E form a coalition and the leader of Party A becomes Prime Minister. On Mr Chaudhry's interpretation of section 99, Party B would be entitled to be offered 52% (ie 45/85) of Cabinet positions whereas, on the Prime Minister's interpretation, Party B would be offered 45% of Cabinet positions.
    
40. According to the Prime Minister, the framers of the Constitution can hardly be thought to have intended to create the possibility of such a situation, given their adoption of the core institution of responsible Cabinet government (see subsections 98, 102 of the Constitution). Furthermore, the Cabinet produced in the hypothetical example would not "fairly represent" the parties represented in the House [cf section 99(4)]. Mr Chaudhry responds that this is a hypothetical situation and that the current dispute does not involve him claiming a majority of Cabinet positions for FLP. He also refers to general statements in the 2003 Supreme Court Judgment as to the novel and evolving framework presented by the Constitution.
    
41. Mr Chaudhry submitted that section 99(5) provided that the proportion of positions for which FLP was entitled to receive an invitation in a proposed Cabinet is to be calculated by taking the proportion of the numbers of members of that party to the total membership in the House of Representatives of all qualifying parties plus the Prime Minister’s own party. The submission accepts that subsection (5) does not in terms state what the membership of qualifying parties is to be factored against to determine their representation in the Cabinet. But this is said to be clearly implicit because, if subsection (5) does not include the Prime Minister’s own party as a factor in the apportionment, there is no other mechanism in the Constitution for determining how many Cabinet positions the Prime Minister should have.
    
42. According to Mr Chaudhry, section 99 is exhaustive in setting out in detail how representation in Cabinet is to be determined. The section does not contemplate that there could be membership in Cabinet other than in accordance with its terms, which deal exhaustively with the allocation of Cabinet positions, including allocation as between qualifying and non-qualifying parties. This submission denies the Prime Minister’s suggestion that there is an unallocated residue of Cabinet positions that are not addressed in the apportionment formula contained within the later subsections.
    
43. Counsel for Mr Chaudhry recognised that his submission also excluded any entitlement of the Prime Minister to appoint Independents or Senators into the Cabinet.
    
44. Mr Chaudhry supported his interpretation by reference to three textual and contextual considerations lying outside the four corners of subsection (5).
    
45. Mr Chaudhry submitted that the defect of the Prime Minister's interpretation is that it leaves some Cabinet positions unaccounted for. The example was given of a Cabinet of 20 positions formed at the present time when the only major parties are SDL (32 seats representing 45% of 71, translating into 9 out of 20 Cabinet positions) and FLP (28 seats representing 39% of 71, translating into 8 out of 20 Cabinet positions). This approach left three (3) Cabinet positions unaccounted for, in the sense that section 99 says nothing about how those positions should be allocated. By contrast, Mr Chaudhry's interpretation would see section 99 controlling the allocation of the entire 20 Cabinet positions in the sense that SDL would be offered 11 and FLP would be offered 9 of the 20 Cabinet positions in the hypothetical situation.
    
46. Mr Chaudhry’s next argument is that subsections (6) to (8) are inconsistent with any formula except one that allocates all Cabinet positions to qualifying parties [including parties or (perhaps) Independents in coalition with the Government]. The thrust of the submission is that section 99 should be addressed in a linear fashion (cf 2003 Supreme Court Judgment at [116]), with subsections (3) and (4) stating in general terms the primary obligations of establishing a multi-party Cabinet and the remaining subsections spelling out the content of those obligations. So much is common ground.
    
47. But Mr Chaudhry’s second argument sees subsection (6) as ensuring that, if the Prime Minister wishes to appoint a person from other than a qualifying party (for example, as part of a coalition agreement with a party that is not a qualifying party), he or she is able to do so, but only at the cost of one of the positions that would have been allocated to the Prime Minister's own party. To allocate cabinet positions to non-qualifying parties except under the regime of subsection (6) and the following subsections would contradict this understanding of the whole provision. Similarly, subsections (7) and (8) are to be viewed as part of the working out of subsection (5) viewed (as Mr Chaudhry would have it) as the necessary trigger for the entire process of Cabinet selection, not just the process for dealing with qualifying parties apart from the Prime Minister’s own party. Mr Chaudhry points to the concluding words in subsection (7), which infer that the Prime Minister’s party has an entitlement "under subsection (5)".
    
48. Mr Chaudhry's next argument invokes section 64 of the Constitution as interpreted by this Court in its 1999 and 2002 Opinions. The parallels between the section 64(2) and section 99(5) are said to be so close that the Court would be sanctioning inconsistency within the Constitution as well is departing from its earlier Opinions if it were to accept the Prime Minister's approach to section 99(5).
    
49. A proper understanding of this submission, and the Prime Minister’s response to it, requires analysis of the 1999 and 2002 Supreme Court Opinions.
    

Section 64(2) and the 1999 and 2002 Supreme Court Opinions

50. Section 64 provides:
    

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.

51. Mr Chaudhry submits that section 64(2) uses language equivalent to section 99(5) in providing that "the 8 persons proposed for appointment comprise such number of nominees of those [entitled] parties as is proportionate to the size of the membership of those parties in the House of Representatives" (emphasis added).
    
52. Mr Chaudhry further submits that the similarity of the language used in section 64(2) and in section 99(5) means that the same approach should be applied to each provision in calculating the numbers of Senate and Cabinet positions. The only exception is that the Prime Minister's appointed Senators are not counted under section 64(2) but his party’s seats are counted (to the exclusion of non-qualifying parties and Independents) for the purposes of section 99(5) (assuming of course that the Prime Minister’s party passes the 10% threshold).
    
53. According to Mr Chaudhry, there is no textual or other reason to exclude the Prime Minister's own party’s seats from the apportionment calculation required by section 99(5). Unlike in section 64, there is no separate allocation in section 99 of Cabinet positions to the Prime Minister's own party. In any event, if the Prime Minister's own party were excluded from the calculation required by section 99 (5), and the proportion were taken against the total number of positions in the House of Representatives minus those held by the Prime Minister's own party, FLP would actually be entitled to an even larger number of seats than it presently claims. This of course is true, although it offers no ready explanation why Independents are excluded altogether from both Cabinet and the apportionment calculation (a conceded corollary of Mr Chaudhry’s submission).
    
54. Each interested party in the present Reference sought to draw comfort from the reasoning of this Court in its 1999 and 2002 Opinions each of which were References concerning the meaning and application of section 64(2).
    
55. The 1999 Reference arose out of the 1999 general election which initially produced a House of 70 members. FLP held 37 seats and its leader, Mr Chaudhry, became Prime Minister. Two other parties passed the 10% threshold that made them qualifying parties within section 99(5) with the consequence that their leaders were entitled to make Senate nominations in accordance with section 64(2). Those parties were the Fijian Association Party (FAP) with 11 seats and the Soqosoqo ni Vakavulewa ni Taukei Party (SVT) with 7 seats.
    
56. The underlying dispute concerned the composition of the pool of nominees for the eight Senate positions to be appointed by the President on the advice of the Leader of the Opposition [cf section 64(1) (c)].
    
57. The Supreme Court rejected the sharply divergent submissions on behalf of each of the then Prime Minister and the SVT. As will become clear, the reasons for rejection of each submission assume significance in the present Reference.
    
58. The then Prime Minister (Mr Chaudhry) had submitted that the 8 Senators to be appointed by the President on the advice of the Leader of the Opposition should include, on the Prime Minister's advice, four persons nominated by the Prime Minister's own party. As the Court pointed out, the thesis of this argument was that, reading subsections 64 and 99 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 nine members to be appointed on the advice of the Prime Minister under section 64(1) (b).
    
59. The Court's reasons for rejecting this submission included reference to the terms and structure of section 64(1), with its reference to 9 senators being appointed on the advice of the Prime Minister [para (b)] and to 8 appointed on the advice of the Leader of the Opposition [para (c)]. This aspect of power-sharing was found to be incompatible with the Prime Minister's contention that he could have, in effect, a second bite at the cherry when tendering advice to the President referable to the Leader of the Opposition's 8 appointees.
    
60. Senior counsel for the Prime Minister in the present Reference correctly observed that this feature of section 64(1) is not involved in section 99. However, the Court did not base the entirety of its reasoning upon the terms of subsection (1) of section 64. The Court also said this (emphasis added):
    

"One last observation should be made about the pattern [of sharing and limitations]. 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 Houses 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 sections 99(6) to (9) inclusive is that in the other provisions of these two linked sections (section 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."

61. This conclusion as to the scope of section 99(5), reaffirmed in the 2002 Opinion and the 2003 Supreme Court Judgment, is a key plank in the Prime Minister’s submissions in the present Reference. Mr Chaudhry’s answer, which we accept, is that to exclude the Prime Minister’s party from the pool of qualifying parties mentioned at the start of subsection (5) does not preclude a limiting entitlement of the Prime Minister’s party having regard to the totality of section 99.
    
62. Returning to the 1999 proceedings, SVT’s preferred interpretation of the concluding words in section 64(2) was that the Leader of the Opposition (then the leader of SVT) was entitled to nominate all 8 Senate appointees under section 64 (1) (c) from his own party or according to his discretion. As this Court pointed out, this was on the theory that, as applied to the circumstances then prevailing, the SVT party’s members were at least 10% of the total membership of the House, and that accordingly SVT was entitled to a corresponding proportion of the Cabinet positions. Further, the argument went, 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 submission was that SVT’s interpretation would have excluded FAP from any right to positions in either the Senate or the Cabinet because FAP was part of a coalition government with FLP. This argument was also rejected by the Court in its 1999 Opinion. FAP was entitled to nominate for appointment under section 64(1) (c) even if it was going into coalition with the Prime Minister’s party.
    
63. Immediately after the passage quoted above, the Court said (emphasis added):
    

"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."

Most of this passage was repeated, with similar added emphasis, in the 2002 Supreme Court Opinion (see below).

64. In consequence of this reasoning, the Court in its formal answer to the Question referred in 1999 held that the phrase "each of the parties entitled to be invited to participate in Cabinet under section 99" in section 64(2) meant:
    

"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 the total membership of the House;"

65. The 2002 proceedings were a Reference concerning the President’s appointment of members of the Senate following the 2001 general election. As indicated, the election had produced a House in which SDL held 32 seats, and FLP held 28 seats. The remaining seats were distributed between minor parties and Independents none of whom was a qualifying party in the sense referred to in section 99(5), with the consequence that none of the leaders of those minor parties was entitled to make a nomination pursuant to section 64(2).
    
66. The dispute underlying the 2002 Reference was identification of the parties entitled to propose persons for appointment to the Senate on the advice of the Leader of the Opposition in a context where the Leader of the Opposition represented a party with only one seat in the House and where there was only one party eligible to be invited to participate in the Cabinet in accordance with section 99(5) as interpreted in the 1999 Supreme Court Opinion (ie FLP). The Leader of the Opposition represented the National Federation Party (NFP), a party that had secured only one seat in the House. The only qualifying party was FLP, led by Mr Chaudhry. Mr Chaudhry contended that FLP was entitled to all 8 of the nominations which the President on the advice of the Leader of the Opposition was to appoint under section 64(1) (c). The Leader of the Opposition claimed the right to advise the President to appoint 4 FLP members and 1 each from minor parties including his own.
    
67. This Court held that FLP was correct and that FLP was entitled to all of the 8 nominations. The Question referred asked:
    

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 the 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 Representatives?

The Court (by majority) answered (a) "Yes" and (b) "No."

68. It needs to be pointed out that the 2002 Reference related to section 64 and in a context where there was neither dispute nor relevance in disputing that any party other than FLP had rights of nomination under subs (2) thereof.The matter in issue was whether the Leader of the Opposition was bound by FLP’s nominations in the particular circumstances.
    
69. The argument invoked by the Leader of the Opposition was that the concluding words of subsection (2) only address the situation where two or more qualifying parties (not being the Prime Minister's party: see the 1999 Supreme Court Opinion) wish to have their nominees included in the list of 8. The concluding words of subsection (2) do not directly address the situation where there is only a single qualifying party.
    
70. This dispute did not throw up any issue about identifying the denominator of the proportion that would have to apply under the concluding words of subsection (2) if there were two or more qualifying parties each proposing names for the Leader of the Opposition’s list of 8 appointees.
    
71. Early in its reasons, the Court referred to the "critical finding" of the 1999 Opinion to the effect that:
    

"The ordinary and appropriate inference from sections 99(6) to (9) inclusive is that in the other provisions of these two linked sections (subsections 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."

72. The Court observed that no party to the 2002 reference suggested that the Court should revisit this conclusion. It therefore followed that the only qualifying party following the 2001 general election was FLP. Proceeding from this standpoint, the Court then moved to the interpretation of section 64.
    
73. In addressing the unique problem of a single non-government qualifying party in the context of section 64(2), the Court nevertheless looked first to the situation applicable if there was more than one such party.
    

The Court said:

"Where there is more than one qualified party, the solution is fairly plain. First, and critically, ' those parties' means qualified parties.... The second significant matter is the effect of the concluding words of section 64(2).... 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 of the size of one qualified party bears to another or others."

74. It is clear this was the view of the Supreme Court in the 1999 Supreme Court Opinion. After reaching its principal conclusion, the Court continued:
    

"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.

[The emphasis was added in the 2002 Opinion.]

At the relevant time in 1999, the FAP held 11 of 70 seats, or 15.7% while the SVT held 7 (10%). If (in accordance 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, 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 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 (section 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 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."

75. In this Court, Mr Chaudhry placed particular reliance upon this passage. He submitted that the repeated statements to the effect that the proportion to which section 64(2) refers is the proportion the size of one qualifying party bears to another or others represents an authoritative exposition of the concluding words in section 99(5). He also submitted that the problem exposed in the final sentence of the passage quoted is the same as that inherent in the Prime Minister’s approach to section 99, ie it is one that necessarily construes section 99 as giving no guidance as to the allocation of all Cabinet positions. We do not agree.
    
76. The opening portion of section 64(2) effectively incorporates so much of the opening portion of section 99(5) as is necessary to identify what we would described as "qualifying parties" other than the Government party. It is the closing portions of the respective subsections that speak about proportionality. The construction of section 99(5) must be approached, at the outset, by reference to the words of that subsection and not by reference to the words of section 64(2). In the event, as appears later in these reasons, there is a consistency between the two subsections which emerges from the preferred construction of section 99(5).
    
77. The concluding portion of section 64(2) closely circumscribes ("must ensure") the function of the Leader of the Opposition in advising the President as to the 8 appointees referred to in section 64(1)(c). The subsection makes it plain that the 8 positions must come only from the nominees of "those [qualifying] parties" and that, if there is more than one such party, the 8 positions are to be shared between those parties in proportion to the size of their membership in the House. A finite pool of Senate positions is to be divided amongst members of qualifying parties to the exclusion of all others. The logic of this imperative emerged in the 2002 Supreme Court Opinion which held that, if there was only one such party, it was entitled to all of the "spoils". The 1999 Supreme Court Opinion also explains why the interests of the Prime Minister's party are entirely excluded from the processes of section 64(1)(c) and (2).
    
78. We return to the reasoning in the 2002 Supreme Court Opinion. After the passage set out above, the Court turned to address the more difficult application of the latter portion of section 64(2) where there is only one qualifying party. The Court pointed out the impossibility of determining proportionality where there is only one qualifying party. This led the Court to an extended discussion as to the workability of the approach to section 64(2) being urged by the Leader of the Opposition in the 2002 Reference. This discussion concluded in the following terms:
    

"To the extent that the view taken by the Leader of the Opposition was based on the concept of power sharing 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 section 6(l), with its reference to the equitable sharing of political power. That however is a general provision and in section 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 section 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, it must be seen in, and where necessary to 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 section 99, and the flow-on effect of that section to section 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 subsection (2), in our opinion, is that where there is but a single qualified party, it is entitled to the full 8 nominations."

79. Mr Williams, leading counsel for Mr Chaudhry, submitted that this was a crucial passage clearly supporting his client’s interpretation of section 99(5). Once again, we disagree in light of the context of the passage where the references to section 99 are either general or concerned with the function of identifying qualifying parties (not being the Prime Minister's party) entitled to make nominations under section 64(2).
    
80. Before leaving the 2002 Opinion we would point out that it recognised that the language of subsection (5), which assumed that there would always be more than one qualifying party, was capable of producing an absurd and unjust result if it was not also applied to a single qualifying party. This possible electoral outcome was overlooked by the drafter, but the omission was not allowed to undermine a fair, workable outcome based upon a reading of the Constitution as a whole. [cf Constitution, section 3(a)]. Similar reasoning reinforces our conclusion as to the eligibility of Independents for appointment to Cabinet.
    

The Position of Independents and Senators

81. It is necessary to address the position of Independents in the scheme of section 99. Their eligibility or ineligibility for appointment to Cabinet has a bearing on the issues in this Reference, for reasons set out below.
    
82. Section 99(2) states that a Minister must be a member of the House of Representative or the Senate to be eligible for appointment. This is the only provision addressing eligibility. It does not in terms state that every member of Parliament is eligible. But, supported by the reasons set out below, we would give it that construction.
    
83. There is no requirement that a candidate for appointment to the Senate or election to the House of Representatives must be a member of a political party. The election of Independents has always been an aspect of political life in this and other democracies.
    
84. The Constitution assumes, but does not require, that the Prime Minister has a party (a point recognised in the 1999 Supreme Court Opinion: see above). It has been the practice for Cabinets appointed under this and previous Fijian Constitutions to include non-party members drawn from either House.
    
85. The need to be able to do this may stem from the appropriateness of choosing a non-aligned member of the Parliament because he and she alone has the skills necessary to fill a specialist portfolio. Alternatively, we could envisage that this might become necessary to enable a Prime Minister to form a stable government.
    
86. History, good government, the language of subsection (2) and its primacy of position within section 99 all support the conclusion that the pool of candidates available for appointment to Cabinet by the President on the advice of the Prime Minister is not confined to members of parties.
    
87. Section 99(5) enacts the "constitutional threshold" contemplated by the JPSC that recommended changes to the earlier scheme of a multi-party Cabinet. But subsection (6) recognises the Prime Minister’s capacity to appoint from parties with less than 10% of the total membership of the House of Representatives.
    
88. The language of subsections (4) to (9) does not recognise the possibility of Independents being members of a multi-party Cabinet. It appears to assume that the multi-party Cabinet referred to in subsection (3) is drawn exclusively from members of parties.
    
89. Nevertheless, it is, in our view, impossible to conclude that the drafters of the Constitution intended by their choice of language to exclude Independents and Senators. Subsection (2) is silent as to such a badge of ineligibility. There could be circumstances when Cabinet–formation became effectively impossible if an Independent Prime Minister or Independent Minister were excluded automatically.
    
90. Subsection (6) would be satisfied in word and spirit by the appointment to Cabinet of the single member of a political party who was elected to the House of Representatives. It makes no sense to exclude (single) Independents.
    
91. During argument in the Reference, counsel were asked about the Prime Minister’s capacity to appoint Independents to Cabinet. Mr Williams submitted that the matter was not raised by the Questions referred, but he recognised that his approach to section 99 left no room for the appointment of Independents. Mr Gageler SC submitted to the contrary, and drew attention to the passing reference in the 2003 Supreme Court Judgment (at [26]) to the appointment of Independents in the current Cabinet.
    
92. In our view, the Prime Minister is free to appoint Independents to Cabinet. This is not excluded by subsections (4) to (9). Whether these subsections have the practical effect of limiting the numbers of Independents that the Prime Minister is free to appoint is another matter entirely, to which we shall return.
    

Analysis

93. The excursion to the 1999 and 2002 Supreme Court Opinions was necessary to understand the arguments presented about section 64.
    
94. It is now possible to address the central issues.
    
95. There are significant difficulties with each position advanced by the Interested Parties in this Reference.
    
96. The problems with Mr Chaudhry’s approach are:
    

• it strains the natural meaning of subsection (5) by effectively adding words that are not in the text;

• it deals with Independents either by excluding them as eligible appointees to Cabinet or (by some means not based on the text) excluding them from the apportionment exercise that spans out from the concluding words of subsection (5) and the subsections that follow;

• it entails the possibility of a Cabinet dominated numerically by parties hostile to the Government, with the consequence that the Cabinet (or government) would not have the confidence of the House, contrary to section 97.

97. The problems with the Prime Minister’s approach are:
    

• it renders subsection (6) tautologous, because even if (as Mr Gageler submits) it operates proleptically for the purpose of subsection (7), there is no need for it in light of the fact that the Prime Minister’s approach to section 99 as a whole leaves him free to allocate all Cabinet positions except those offered to qualifying parties in proportion to their numbers in the House as a percentage of the total membership of the House;

• it ignores the reference in subsection (7) to "respective entitlements under subsection (5)" that suggests that the Prime Minister’s party has an entitlement under subsection 5. It is a strained use of language to view a right to fill all positions except those offered to qualifying parties as such an entitlement.

98. Section 99(4) states the general principle that "the composition of the Cabinet should, as far as possible, fairly represent the parties represented in the House of Representatives". That principle is subject to the provisions within the section that allow for the possibility that one or more parties invited to participate in the Cabinet will decline the invitation.
    
99. Section 99(4) is, in a sense, declaratory of the object of the provisions of section 99. Importantly it also provides an interpretive principle which informs the construction of the section. A construction which is likely to produce a patently unfair result having regard to the history, context, purposes and spirit of the Constitution, is unlikely to be correct.
    
100. Section 99(5) imposes an obligation on the Prime Minister, the content of which is defined by that subsection and qualified by the subsections which follow. In broad, the obligation is to issue an invitation to qualifying non-government political parties in the House of Representatives to be represented in the Cabinet. The class of parties to whom that invitation is to be issued is "parties whose membership in the House of Representatives comprises at least 10% of the total membership of the House". In so defining the class of parties to be invited, the subsection gives definition to the Prime Minister’s obligation. It also confers upon the qualifying non-government parties a correlative right to be invited. That right is discussed in previous Opinions of this Court, most notably the 2003 Supreme Court Judgment.
     
101. The content of the invitation which the Prime Minister is required to extend to such parties is "to be represented in the Cabinet in proportion to their numbers in the House". The ordinary and natural meaning of the words and their evident purpose does not require the Prime Minister to undertake the formality of issuing an invitation to his or her own party. The section requires the Prime Minister to offer qualifying non-government parties a level of representation in the Cabinet which is "in proportion to their numbers in the House". Although expressed by reference to the content of the invitation from the Prime Minister to qualifying parties other than his or her own, the term "in proportion to their numbers in the House" also defines the number of places in the Cabinet to which each qualifying party is entitled. Section 99(5) therefore confers upon qualifying parties an entitlement to be represented in the Cabinet in proportion to their numbers in the House. The first question referred by the President is essentially about the nature of that entitlement.
     
102. The term "proportion" used here has a relevant ordinary English meaning. It is:
     

A relationship of equivalence between two pairs of quantities such that the first bears the same relation to the second as the third does to the fourth.

New Shorter Oxford English Dictionary

103. So, if one qualifying party has 20 seats in the House of Representatives and another has 10 seats their respective entitlements in Cabinet would be such that the first party would have twice the number of places as the second party. If the number of places allocated to the 10-seat party is "n" then the number of places allocated to the 20-seat party must be "2n". The ratio of places to seats in Parliament is then the same for each of these qualifying parties. On that basis the number of their places in Cabinet would be "in proportion to their numbers in the House".
     
104. Divorced from its context and literally construed, section 99(5) places no limit on the number of positions to which the Prime Minister’s party is entitled in Cabinet. It simply defines the relationship between the entitlements of other qualifying parties. If that were the correct interpretation and there were two qualifying parties, other than the Prime Minister’s party, and one had twice as many seats in the House of Representatives as the other, then the requirements of the section could be met by giving the larger of the parties two (2) places in a Cabinet and the smaller of them one (1) place regardless of the overall size of the Cabinet. So in a 71 seat Parliament where the Government party has 40 seats and the qualifying non-government parties 20 and 10 seats respectively, a 20 member Cabinet could be formed comprising 17 places for the Government, with 2 and 1 places respectively for the other qualifying parties.
     
105. The problem that immediately emerges is one of "fairness". The literal construction of section 99(5) does not, on any view, accord with the principle in section 99(4) which requires that the composition of the Cabinet, "as far as possible, fairly represent the parties represented in the House of Representatives." Moreover, on the literal interpretation the subsection has no operation where there is one qualifying party other than the Government party. In that case, on the literal interpretation, no "proportion" could be calculated. It is not lightly to be supposed that the drafters of section 99(5) intended that the Prime Minister could be excused from the obligation to form a multi-party Cabinet in the case that there was only one qualifying non-government party (cf the 2002 Supreme Court Opinion).
     
106. Having regard to the context in which the Constitution was drafted and the centrality to it of the idea of "power sharing", it would be against the spirit of the Constitution so to construe it (section 3). It would also not appear to accord with the principles in the Compact related to the "equitable sharing of political power amongst all communities in the Fiji Islands" [section 6(l)]. In the context in which the Constitution was drafted that is connected to the sharing of power between political parties whose composition then, as now, was broadly, although not precisely, reflective of those differing communities.
     
107. It is necessary therefore to posit an entitlement in the Prime Minister’s or Government party against which, as a matter of practicality, the entitlement of a qualifying non-government party can be calculated. That entitlement must also reflect a principle of fairness which does not permit the Prime Minister to limit the number of places in Cabinet offered to qualifying non-government parties to a derisory reflection of their representation in the House of Representatives.
     
108. The proposition that section 99(5) implies or assumes a limit on the proportion of Cabinet places to be held by the Prime Minister’s party is supported by the language of the subsections that follow.
     
109. Subsection 99(6) provides that if the Prime Minister appoints to the Cabinet a person from a non-eligible party the selection is deemed "for the purposes of this section to be a selection of a person from the Prime Minister’s own party". The "purposes" of section 99 can be identified by reference to subsections 99(3) and (4). They are the establishment of a multi-party Cabinet whose composition fairly represents the parties represented in the House of Representatives. Section 99(6) assumes the application of the fairness principle to limit the entitlement of the Prime Minister’s party in the Cabinet relative to other qualifying parties and to maintain the application of that fairness principle in the event that the Prime Minister appoints to Cabinet allies from non-qualifying parties, eg small coalition parties.
     
110. Subsection 99(7) makes explicit the assumption that the Prime Minister’s party has an entitlement to representation in the Cabinet which is to be found by reference to subsection 99(5). It seeks to maintain the fairness principle in the allocation of Cabinet places as between the Prime Minister’s party and qualifying non-government parties who accept the invitation even though a qualifying non-government party may have declined. It is only in the event that all qualifying parties decline the invitation, that the Prime Minister has a free hand in determining the number of members of his or her own party or coalition of parties that may fill the places in Cabinet.
     
111. The term "in proportion to their numbers in the House" must be capable of application to the case where there is but one qualifying non-government party. So the entitlement of the Prime Minister’s party is defined by reference to that same proportion. Applying the relevant ordinary meaning of "proportion" referred to above this means that the proportion of Cabinet places held by the Prime Minister’s party to the number of its seats in the House must be the same as the proportion of Cabinet places held by the qualifying non-government party to its numbers in the House.
     
112. Let it be assumed that PG is the number of House of Representatives’ seats held by the Government party and P1 is the number of seats held by a single non-government qualifying party. Assume then that CG is the number of Cabinet places allocated to the Government party (including places allocated to its coalition partners) and C1 is the number of places to be allocated to the qualifying non-government party. It follows that the requirements of section 99(5) are met if CG/PG = C1/P1. When the Government party has, as in the present case, 32 seats in the House and the FLP has 28 seats in the House, the number of their places in the Cabinet must answer the relationship: CG/32 = C1/28.
     
113. This relationship does not require the Cabinet to be composed only of members of qualifying parties. It would allow for the appointment of Independents or Senate members, provided they do not belong to any of the parties represented in the House of Representatives. But whether the Cabinet is composed only of members of qualifying parties or includes non-party appointments, the relationship between the number of seats held by the Government and qualifying non-government parties must remain the same.
     
114. Let it be assumed however that the Prime Minister decides to appoint a 36 member Cabinet composed only of members of the Government party and the one qualifying non-government political party which, in this case, is the FLP. This introduces a new constraint into the calculation of entitlements. That is the total number of places in Cabinet allocated to the Government and the FLP will be equal to the total number of places in Cabinet. The numerical entitlements of the Government party and the FLP are then worked out by solving two simple linear equations. They are:
     

Equation 1: CG/32 = C1/28

Equation 2: CG + C1 = 36

Applying these equations, and solving them by simple substitution, CG is 19 and C1 is 17. That is, in a 36 member Cabinet composed only of members of qualifying parties the Government would be entitled to 19 places and the FLP to 17. These proportions are the same as those produced by the arguments put on behalf of Mr Chaudhry. That is because the calculations done on his contentions are mathematically equivalent to those done on the approach to construction which is set out above. However, that equivalence only arises because of the assumption that the Cabinet can only be made up of the members of qualifying parties. If members of the Senate and Independents can be appointed to the Cabinet then a wider range of possibilities emerges than is contemplated by the submissions advanced for Mr Chaudhry.

115. The obligation of the Prime Minister is to afford as many places in Cabinet to his party (including coalition partners) and to other qualifying parties as will ensure that their numbers in Cabinet bear, for each of them, the same proportion to their numbers in the House. If the present Prime Minister were to provide for a 36 member Cabinet he could appoint 17 from his Government party (including coalition party members). To keep the proportions constant he would have to appoint 14.8 rounded up to 15, from the FLP. This would leave him with 4 places which he could fill by appointing members of the Senate who are not members of a political party or by appointing Independent members of the House of Representatives, or a combination of both.
     
116. This option is plainly open to the Prime Minister. It is a necessary and sufficient qualification for appointment as a Minister that a person be a member of the House of Representatives or a member of the Senate. Section 99 provides for a multi-party Cabinet by providing for the parties to be represented in the Cabinet in proportion to their numbers in the House. For reasons developed more fully above, section 99 does not prevent the appointment of additional non-party members to the Cabinet. To read it as preventing such appointments would be inconsistent with the width of the eligibility rule in section 99(2). Given that some constituencies may be represented by Independents and that persons of standing and experience may be appointed to the Senate who are not necessarily members of a political party, there is no apparent constitutional purpose to be served by precluding the Prime Minister from appointing a person or persons in those categories into the Cabinet in appropriate circumstances. Such appointments could involve co-operative arrangements with the governing party.
     
117. The final answers to questions 1 & 3 in the Reference are not to be framed in terms of either of the principles propounded for the Prime Minister or Mr Chaudhry but in terms of a wider range of possibilities governed only by the specific requirement that the numbers of the Government and qualifying non-government parties in the Cabinet be in proportion to their numbers in the House of Representatives and subject ultimately to the overarching requirement of fairness.
     

The Relationship between Sections 99 and 64 of the Constitution

118. The construction proposed for section 99(5) is consistent with the words of section 64(2). That subsection governs the entitlements of qualifying non-government parties in relation to the number of nominees to be appointed to the Senate on the advice of the Leader of the Opposition pursuant to section 64(1)(c). The 8 persons to be proposed for appointment must "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". For each of the parties therefore, the ratio between the number of its nominees and the number of its seats in the House must be the same.
     
119. Under section 64 only qualifying non-government parties can nominate for the 8 positions in the Senate proposed by the Leader of the Opposition. This is what this Court held in its 1999 Opinion. In essence, that is because the position of government parties is covered by the Prime Minister’s power of nomination referred to in section 64(1)(b) under which he or she can nominate 9 persons. The fact that section 64(2) only relates to nominees of qualifying non-government parties does not affect the conclusion that the concept of proportionality as between those parties spelt out in section 64(2) is the same as the concept of proportionality which operates in section 99(5) as between the Government party and all qualifying non-government parties. That conclusion is consistent with the observation of this Court in its 2002 Opinion when it said of section 64(2):
     

"We consider that the proportion to which the subsection refers is the proportion the size of one qualified party bears to another or others."

120. The identity of approaches to proportionate representation in section 64(2) and section 99(5) is unaffected by the fact that in section 99(5) the Prime Minister does not issue an invitation to his or her own party. Entitlements of the invited parties, for the reasons already given, are defined by words which necessarily define the entitlement of the Prime Minister’s party.
     

Answers to the Questions Referred

121. For the preceding reasons the Court’s answers to the referred questions are as follows:
     

Question 1(1): "No"

Question 1(2): "Yes, but only if the Cabinet is composed entirely of members appointed from political parties represented in the House of Representatives."

Question 1(3): "Yes, the words refer to the proportion which the number of places which each party, including the Government Prime Minister’s party, is allocated in the Cabinet bears to the membership of that party in the House of Representatives."

Question 2: "From time to time as the composition of the House of Representatives changes."

Question 3: "The FLP is entitled to a number of places in the Cabinet which bears the same proportion to its membership of the House of Representatives as the number of places occupied by the SDL bears to its membership of the House of Representatives."

Hon Justice Daniel Fatiaki
President of Supreme Court

Hon. Justice Keith Mason
Judge of Supreme Court

Hon. Justice Robert French
Judge of Supreme Court

Hon. Justice Mark Weinberg
Judge of Supreme Court

Solicitors:
Office of the Attorney-General, Suva for the First Interested Party
Messrs. G.P. Lala and Associates, Suva for the Second Interested Party