In re the President's Reference, Qarase v Chaudhry - Dissenting Judgment [2004] FJSC 9; MISC 001.2003s (9 July 2004)

IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA
ORIGINAL JURISDICTION

Miscellaneous Case No 1 of 2003S

IN THE MATTER of a Reference By the President for an Opinion On Questions as to the Effect of Section 99 of the Constitution

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 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 GAULT JSC

1. The point on which I take a different view from the majority is one that formed no part of the case of either interested party, was the subject of no detailed submissions and, in my view, is unnecessary to decide in order to resolve the dispute giving rise to the present Reference. It is therefore with reluctance that I write separately, but the majority find as part of their reasons an entitlement to include independent members of the House of Representatives and the Senate in a multi-party Cabinet in addition to representatives of qualified parties. I consider that to be inconsistent with the scheme and words of section 99 of the Constitution.

2. I consider that the answer to Question 1(2) should be simply “Yes” and that the answer to Question 1(3) should be “No”. I agree with the majority’s answers to Questions 2 and 3.

3. At issue is the correct construction of section 99 of the Constitution. It is unnecessary to repeat what has been said about the section and the applicable principles of constitutional construction in the previous opinions and judgment of this Court.

4. Section 99 is set out in full in the reasons of the majority. It is the wording of the section, that must have primary focus. I accept the correct approach is set out in paras 62 – 71 of the Judgment of the Court in Qarase v Chaudhry [2003] FJSC 1 (‘the 2003 Supreme Court Judgment’), perhaps adding the following comment of Kentridge AJ in State v Zuma 1995 (4) B.C.L.R. 402, 412:

“If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination.”

5. Section 3(b) of the Constitution directs that there is to be taken into account the context in which the Constitution was drafted.. With respect to section 99 material background includes that part of the Joint Parliamentary Select Committee (JPSC) Report of 13 May 1997 quoted at para 86 of the 2003 Supreme Court Judgment and the changes made to the Bill at the Committee stage, particularly the increase in the threshold membership of the House from 4% to 10% as qualifying for representation in the Cabinet.

6. Also material, by virtue of section 7(2), is the principle set out in section 6(1) of equitable sharing of political power. As was said in President of the Republic of Fiji Islands v Kubuabola [1999] FJSC 8 (‘the 1999 Supreme Court Opinion’): “A key concept embodied in the Constitution is power sharing”.

7. Adopting the explanatory analysis of section 99 set out in the 2003 Supreme Court Judgment (paras 98–115), I begin by viewing the subsections of section 99 as a whole to discern the general scheme and purpose of their provisions. First, the obligation is upon the Prime Minister to establish a multi-party Cabinet. That is to be done “in the way set out in the section”. That suggests that all of the ministerial positions are to be filled in the way set out in the section. The Cabinet is to be composed of (not merely contain), as far as possible, fair representation of the parties represented in the House. That must include all parties, subject to their meeting the threshold of 10% of seats in the House of Representatives.

8. Subsections (5) to (9) set out the way in which that is achieved. They are drawn in some detail to establish and maintain [except in the circumstances covered by subsection (8)] the proportions in which the qualifying parties are to participate.

9. Subsection (5) contains two limbs. The first imposes the obligation to invite qualifying parties to be represented. The second states that the invitation is to be in respect of Cabinet representation for parties “in proportion to their numbers in the House”. It is this second limb to which the questions posed in the Reference are directed.

10. In the 1999 Supreme Court Opinion it was said that the parties to which invitations must be extended excludes the Prime Minister's party – one does not usually invite oneself. But I do not understand the Court to have said that, under the second limb, in determining the proportion of ministerial places to be offered, the Prime Minister’s party is to be disregarded. What the Court said was “His own party is within the scope of a provision [of section 99] only when expressly brought in by the terms of that provision”. That is exactly what subsection (7) does by expressly referring to the Prime Minister’s party having an “entitlement under subsection (5)”. Subsections (6) and (8) also assume that to be the position. Certainly it does not follow from the wording “in proportion to their numbers” that the second limb is to be applied only to those parties invited under the first limb. It is quite normal usage for the word “their” to include the initiator within an activity proposed to others; eg “one of the group invited the others to agree upon their shares.”

11. As is stated in the reasons of the majority, the proportion to which a single qualifying party (other than the Prime Minister’s party) is entitled under the second limb cannot be determined unless the number of seats held by the Prime Minister’s party is brought into consideration.

12. I do not accept that the Prime Minister’s party is to be regarded as entitled under subsection (5), by inference, to all residual places in the Cabinet other than those the subject of invitations to qualifying parties. If that were the position subsections (6) and (8) would be unnecessary. It would be inconsistent with subsection (4) which, as stated, must refer to all parties. Further, it would be incompatible with fair representation and equitable sharing of power. This can be demonstrated by an example in which, of the 71 seats in the House, the Prime Minister’s party gains 26 and only one other party exceeds the 10% threshold and gains 24. The Prime Minister’s party is able to form a Government with the support of parties having less than 10% of the seats. If the Prime Minister’s party were entitled to the residue after the only other qualifying party’s entitlement of one-third of the Ministerial positions, the Prime Minister’s party would take double that number of positions. This would, in effect, apply the qualifying threshold only to parties not supporting the Prime Minister’s party. I find no justification for that in the section.

13. Accordingly, and in agreement with the majority, I am satisfied that the entitlement of the Prime Minister’s party under subsection (5) must also be in proportion to its numbers in the House.

14. The entitlements therefore fall to be determined by taking the number of seats in the House held by each qualifying party (whether or not in coalition with the Prime Minister’s party) and the Prime Minister’s party (assuming, as the section does, that the Prime Minister is a member of a party which has at least 10% of the seats in the House) and allocating ministerial places in the proportions those numbers bear to each other. I emphasise that the ministerial positions are to be allocated in proportion to the number of seats, not in proportion to the shares in the total number of seats in the House parties may hold.

15. On this construction each of subsections (7), (8) and (9) follows logically and preserves the proportionality except where all other parties decline to be represented.

16. In result this accords with the proposition in Question 1(2) of the Reference.

17. As I apprehend, the position of independent members of the House of Representatives and Senators has been brought in to open up a wider range of possibilities to meet an argument raised for the Prime Minister against the construction contended for on behalf of Mr Chaudhry. It was said that to construe section 99(5) as in the second alternative to the first Question could potentially result in a Government having a minority of positions in the Cabinet. The reasons of the majority, which I have read in draft, would overcome this by allowing the Prime Minister to select for inclusion in the Cabinet independent members of the House and Senators who are not members of a party but who have co-operative arrangements with the Prime Minister. This is regarded as not affecting the proportions of Cabinet places to which the qualified parties are entitled.

18. There are four reasons why I am unable to concur in that reasoning.

19. First, I consider the spectre of a Government with a minority in Cabinet as quite unreal. It verges on the absurd to suggest that a party leader could satisfy the President that he or she can form a Government when it is apparent that the coalition could not hold a majority of positions in the Cabinet. Such a coalition could not govern and politicians would know that. Accordingly it is not a scenario that section 99 needs to be construed to resolve.

20. Secondly, to hold that a Prime Minister may appoint to the Cabinet independents (or Senators) having a co-operative arrangement with his party is inconsistent with the scheme of section 99 and with the treatment of parties whose representation in the House is below the 10% qualifying threshold. A party having one seat and joining a coalition with the Prime Minister’s party could not have a seat in the Cabinet except as part of the entitlement of the Prime Minister’s party [section 99(6)]. Whereas, on the reasoning of the majority, an independent with one seat, joining the coalition, can be given a Cabinet seat in addition to the entitlement of the Prime Minister’s party. That is inconsistent with the 10% threshold requirement for participation in the Cabinet.

21. Thirdly, the requirements are that the entitlement is not just to Cabinet places in proportion to the number of seats in the House [subsection (5)], but also to places which, so far as possible, fairly represent the parties’ representation in the House [subsection (4)]. I do not see how it could be said that the appointment of sympathetic independents and Senators to a Cabinet, and particularly if by that a minority were converted into a majority, could be said to satisfy the second of those requirements.

22. Fourthly, there seems no justification for differentiating between Senators who happen to be members of political parties who, though eligible for Cabinet appointment under section 99(2), cannot be selected other than within a party entitlement, and those non-party members who, although equally supportive of the Prime Minister’s party (why else would they be selected?) face no such limitation. It is plain that section 99(2) provides a necessary but not sufficient eligibility for Cabinet appointment.

23. It may be arguable, although in my view it is unnecessary to determine the point in the present case, that independents and Senators should be treated in the same manner as members of parties having representation in the House below the 10% qualifying threshold. By analogy with section 99(6) they might be selected for Cabinet places as part of the entitlement of the Prime Minister’s party.

Rt Hon Thomas Gault
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