IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION No. HBC 119 OF 2001S

Between:

THE REV. AKUILA YABAKI
VIJAY NAIDU
DOROTHY JANE RICKETTS
ADI VUIKABA SPEED
TUPENI BABA
RATU KINIJOJI MAIVALILI
RATU ISIRELI VUIBAU
DEO NARAYAN
Applicants

and

THE PRESIDENT OF THE REPUBLIC OF THE FIJI ISLANDS
First Respondent

and

THE ATTORNEY-GENERAL
Second Respondent

Sir Vijay R. Singh for the Applicants
Q.B. Bale for the First Respondent
S.Matawalu for the Second Respondent

JUDGMENT

These proceedings were commenced by way of Originating Summons issued on 23 March 2001.

For a variety of reasons directions for the filing of affidavit evidence could not be given until 15 June and the hearing of the summons did not take place until 28 and 29 June and 2 July. All parties agreed that it was most desirable that a Judgment be published before 12 July. Given the relatively short period of time available between hearing and judgment I propose, taking advantage of the excellent comprehensive and learned written submissions filed by counsel and to a greater extent than usual to summarise the various facts and matters which seem to me to be especially relevant.

On 19 May 2000 a group of armed men led by one George Speight took over Parliament. The Prime Minister, Mr. Mahendra Chaudhry and most of his cabinet were taken prisoner. Later that day the then President Ratu Sir Kamisese Mara declared a State of Emergency.

On 27 May 2000 the Prime Minister still being detained in Parliament Ratu Sir Kamisese appointed Ratu Tevita Momoedonu as Acting Prime Minister under the provisions of Section 106 (1) of the Constitution (GN 873/00). Almost immediately following the appointment Ratu Sir Kamisese accepted the Acting Prime Minister’s advice and prorogued Parliament for 6 months under the provisions of Section 59 (2) (GN 874/00).

On 29 May 2000 the Commander of the Republic of Fiji Military Forces purported to abrogate the 1997 Constitution and to appoint himself Head of an Interim Military Government. Ratu Sir Kamisese “stood down”.

On 2 June 00 the Interim Military Government published the Emergency Decree 2000 (Interim Military Government Decree No. 4 – Fiji Government Gazette 2 June 00).

On 4 July 00 the Interim Military Government published the Interim Civilian Government (Establishment) Decree 10/2000. This Decree established a civilian government but the Commander of the RFMF retained his position as Head of Government. Mr. Laisenia Qarase was appointed Prime Minister, Ratu J.Y. Kubuabola was appointed Minister of Finance and Mr. Alipate Qetaki was appointed Attorney-General.

On 9 July 00 the Interim Civilian Government (Establishment) Decree was repealed by the Interim Civilian Government (Transfer of Executive Authority) Decree 2000. This Decree provided that the Great Council of Chiefs (GCC) should appoint an Interim President to be Head of State.

On 13 and 14 July 00 a meeting took place of the GCC (GN 187 and 218/00). The GCC appointed Ratu J. I. Uluivuda (who had been appointed Vice-President under the 1997 Constitution on 18 January 1999 – GN 484/99) as Interim President and the Interim Government was reappointed. On 13 July the remaining hostages were finally released from Parliament.

On 26 July 00 George Speight and a number of his associates were arrested and charged with various offences including treason. They have been held in custody on Nukulau Island ever since. The preliminary inquiry in the Magistrates’ Court is, at the time of writing, yet to get under way. 

On 5 November 00 an attempted mutiny took place at the Queen Elizabeth Barracks in Suva. The Commander of the RFMF narrowly escaped and the mutiny was eventually put down but not before several mutineers and loyalists had been killed.

On 15 November 00 the Lautoka High Court declared that the purported abrogation of the 1997 Constitution by the Commander of the RFMF on 29 May was null and void and that the Constitution remained in place. It also declared that the State of Emergency proclaimed by Ratu Sir Kamisese, though not “strictly” within the terms of the Constitution was validated ab initio under the doctrine of necessity, that Ratu Kamisese remained President and that Parliament should be recalled by him as soon as possible. Somewhat curiously the Court also declared that members of the House of Representatives holding office retained those offices but that the President was to appoint a Prime Minister under the provisions of Section 98 of the Constitution. In 
view of the fact that the Prime Minister had neither resigned nor been dismissed it is hard to understand what was meant by this last declaration.

On 1 March 2001 the Fiji Court of Appeal dismissed the State’s appeal against the Lautoka High Court’s principal finding that the 1997 Constitution remains the supreme law of Fiji and had not been abrogated. It also made 2 further declarations:

(i)	that Parliament had not been dissolved but was prorogued on 27 May 00; and

(ii)	that Ratu Sir Kamisese resigned on 15 December 00 and that accordingly, under the provisions of Section 88 (4) of the Constitution Ratu J.I. Uluivuda as Vice-President could continue to perform the functions of President until no later than 15 March 01.

On 13 and 14 March 01 the GCC again met (GN 390/01). According to paragraph 7 (h) of the affidavit of Jeremaia Waqanisau filed on 19 June 01 the GCC (acting presumably under the provisions of Section 90 of the Constitution) appointed Ratu J.I. Uluivuda (hereafter called the President) as President “to take effect from 15 March 01 after consultation with the Prime Minister”. The President continues to serve in the office of the President until today (see also GN 417/01).

On 14 March the President, purporting to act under the provisions of Section 109 (1) of the Constitution dismissed Mr. Mahendra Chaudhry as Prime Minister with immediate effect (GN 424/01). On the same day the President, purporting to act under the provisions of Section 109 (2) of the Constitution appointed Ratu Tevita Momoedonu as Caretaker Prime Minister (GN 416/01).

On 15 March the President, acting on the advice of the Caretaker Prime Minister and purporting to act under the provisions of Section 59 (2) of the Constitution dissolved the House of Representatives (GN 419/01). On the same day the Caretaker Prime Minister resigned (GN 420/01). The following day, 16 March, the President, purportedly acting under the provisions of Section 109 (2) appointed Mr. Laisenia Qarase as Caretaker Prime Minister (GN 421/01). The appointments of 17 Ministers and 7 Assistant Ministers followed (GN 422/01). The Caretaker Prime Minister and Government continue in office until today. 

Accordingly to paragraph 11 of Dr. Tupeni Baba’s affidavit filed on 23 March 01 he was “astonished” that the President had failed to summon Parliament after the decision of the Fiji Court of Appeal and had instead dismissed the Prime Minister, dissolved Parliament and reappointed the Interim Civilian Government in a caretaker capacity.

The Originating Summons issued shortly after these actions by the President sought four declarations. It also sought an order E “staying the purported dissolution of Parliament” and an order F “directed to the President to summon Parliament without further delay”.

On 3 April 01 an amended summons was filed. On 15 June the amended summons was withdrawn. On 28 June the application for orders E and F were also withdrawn. In the result the Applicants now seek the following four declarations:

A	A declaration that the First Respondent, His Excellency the President of the Republic of the Fiji Islands (hereinafter “the President”) acted in a manner inconsistent with the Constitution when he failed to summon Parliament after its prorogation on 27 May 2000.

B	A declaration that the purported dismissal by the President of Hon. Mahendra Pal Chaudhry as the Prime Minister on the 14 March 2001 is inconsistent with the Constitution and is therefore null and void.

C	A declaration that the purported dissolution of Parliament by the President on about 14 March 2001 is inconsistent with the provisions of the Constitution and is therefore null and void. Accordingly the Parliament constituted after the May 1999 General Elections exists and has not been dissolved.

D	A declaration that the purported appointments of Hon. Senator Laisenia Qarase as Prime Minister and of other persons as Ministers of a Caretaker Government for Fiji made on or about 15th, 16th and 19th March 2001 are inconsistent with the Constitution and each such appointment is null and void.

Sir Vijay’s submissions are contained in two separate written submissions. The first was filed on 25 June while the second was handed up on 2 July.

In part two of his first written submission Sir Vijay began by stressing that Fiji’s Constitution enshrines a modified form of Westminster representative parliamentary democracy. In this model the President does not have the same extensive powers enjoyed by Presidents under different models of which America and France may be offered as examples. That does not however mean that the President of Fiji is a mere figurehead but it does mean that his scope for acting otherwise than on the advice of the Prime Minister or another Minister is strictly limited. This limitation is codified in Section 96 of the Constitution which reads as follows:

“President Acts on Advice

96-(1)	Subject to sub-section (2) in the exercise of his or her powers and executive authority, the President acts only on the advice of the Cabinet or a Minister or some other body or authority prescribed by this Constitution for a particular purpose as a body or authority on whose advice the President acts in that case.

(2)	This Constitution prescribes the circumstances in which the President may act in his or her own judgment.”

Addressing the first declaration, declaration A, Sir Vijay referred to Exhibits AKS 2 and AKS 1 to the affidavit of Adi Kuini Speed filed on 23 March. These exhibits are copies of a letter sent to the President on 1 March 01 calling upon the President to summon Parliament “as a matter of urgency”. Attached to the letter was a petition signed by 46 members of the House of Representatives. This petition was on its face presented under the provisions of Section 68 of the Constitution and it is conceded that the President had a discretion under that section either to act upon it or to reject it.

Although submitting that the President, when faced with such a multi-party petition needed powerful reasons not to act on it and did not in fact have them, Sir Vijay relied not so much on the petition as on the covering letter. This letter was signed not only by the leaders of four other parliamentary parties but was also signed by Mr. Mahendra Chaudhry, the Prime Minister.

In his final submissions Sir Vijay argued that the letter of 1 March should be taken together with another letter sent by Mr. Chaudhry to the President on 7 March. A copy of this letter is Exhibit JMW 11 to Mr. Waqanisau’s affidavit of 19 June. Although the letter does not specifically call upon the President to recall Parliament it does call for the People’s Coalition Government (of which Mr. Chaudhry was the head) to be restored to office in an interim capacity prior to dissolution of the House of Representatives following amendment to Section 54 of the Constitution to allow a reversion to the “First Past the Post” voting system. Such a change could of course only be made by a recalled Parliament (Constitution 1997 Sections 190 and 191).

Looked at in this way Sir Vijay submitted that the President had unarguably received an advice from his Prime Minister to recall Parliament for another session, that the advice should have been regarded by the President as being advice tendered under the provisions of Section 68 (2), that Section 68 (2) by operation of Section 96 required the President to accept the Prime Minister’s advice and that accordingly by failing to do so the President had acted in a manner that was inconsistent with the Constitution.

Sir Vijay addressed Declarations B and C together and his detailed submissions are set out in paragraphs 74 to 100 of his final written submission.

Central to Sir Vijay argument is the proposition that Sections 107, 108 and 109 of the Constitution have to be considered as an interconnected package of provisions. Praying in aid Section 3, an interpretation provision, Sir Vijay suggested that Section 109 only comes in to play as a result of the operation of the two preceding sections. In particular he argued that the phrase “loses the confidence of the House of Representatives” which occurs in Section 109 (1) must be taken to mean “loses a vote of confidence in the House of Representatives”. Since it is not disputed that Mr. Chaudhry had not lost a vote of confidence in the House neither Section 107 nor Section 108 had come into operation and accordingly Section 109 could not be brought in to operation either. In these circumstances the purported dismissal of Mr. Chaudhry was inconsistent with the Constitution and was therefore null and void.

If Sir Vijay’s interpretation of Section 109 is correct then it must follow that the appointment of a Caretaker Prime Minister was also null and void and that the advice by the Caretaker Prime Minister to dissolve Parliament could not be properly considered to be advice given to the President under the provisions of Section 59 (2). 

The argument directed to the appointment of Mr. Qarase was very straight forward. Taking Sections 98, 99 and 109 (2) together it was submitted by Sir Vijay that the “person” referred to in Section 109 (2) who may be appointed by the President as a Caretaker Prime Minister must be a member of the House of Representatives. While not conceding that Section 109 had properly come into operation Sir Vijay suggested that the dismissal of the Prime Minister, the appointment of the first Caretaker Prime Minister and the dissolution of Parliament were all steps in a carefully thought out plan which, while preserving some appearance of constitutionality in fact culminated in the appointment of a Caretaker Prime Minister who was not a member of the House of Representatives and whose appointment if only on that ground alone was inconsistent with the Constitution and therefore null and void.

At this stage it will be convenient to turn to the answers to these arguments advanced by the Respondents. Both Mr. Bale and Mr. Matawalu addressed each of the arguments put forward. For the sake of brevity I do not propose to attempt a detailed summary of each of their submissions. They are to be found set out in full in their written submissions. In general both counsel presented a similar case. 

As may be seen from the summaries set out in paragraphs 4A, 4B and 4C of Mr. Bale’s written submissions the Respondents argued:

(i)	that the provisions of the Constitution under consideration were in fact capable of being correctly read in such a way as to permit the President legitimately and constitutionally to do what was done; alternatively,

(ii)	that such deviations from the strict requirements of the Constitution as may have occurred were legitimised by the doctrine of necessity; or, in the second alternative,

(iii)	that this Court should, in all the circumstances, exercise its discretion not to grant the reliefs sought.

In relation to Section 68 (3) Counsel of the Respondents argued that the President was justified in the circumstances then prevailing in declining to accede to the request and petition delivered to him on 1 March. 

As to Section 68 (1) it was submitted that neither the covering letter signed by Mr. Chaudhry nor his later letter of 7 March legally amounted to a request to the President to reconvene Parliament on a date advised by the Prime Minister and that therefore the President had not failed to act on Mr. Chaudhry’s advice as required by the subsection.

In relation to Section 107, 108 and 109 Counsel for the Respondents point out that the wording of Section 109 enables it to be read as a “stand alone” section making, as it does, no reference to the earlier sections. While it appears to be conceded that the President would ordinarily come to learn that a Prime Minister had lost the confidence of the House by learning that he had lost a vote of confidence on the floor of the House it was argued that nothing in this section prevents the President from properly reaching a conclusion on the basis of other evidence that the Prime Minister had in fact lost the confidence of the House.

In support of this proposition Counsel cited Adegbenro v. Akintola [1963] AC 614 in which the Privy Council held that the Governor of Western Nigeria was properly able to reach the conclusion that the Prime Minister had lost the support of the majority of the House of Assembly even though no actual confidence vote had taken place.

It was argued that it is not necessary under the 1997 Constitution to recall the House of Representatives merely to allow the inevitable defeat of the Prime Minister to take place.

In support of the proposition that Mr. Chaudhry did not, in fact, on 14 March 2001 command enough votes to defeat the motion of no confidence in him which had been tabled six days earlier the Respondents relied principally on the affidavit of Jeremaia Waqanisau filed on 19 June 01, on paragraph 18 thereof and on Annexures JMW 4 (the Citizens Constitutional Forum calling for the appointment of a new Prime Minister); JMW 7 (Dr. Baba and Adi Kuini calling for Mr. Chaudhry to be replaced by Dr. Baba); JMW 8 (Adi Kuini and others calling for the appointment of Dr. Baba “because he already has the support of the majority of the members of the House of Representatives”); JMW 10 (an opinion by Ratu Joni Madraiwiwi advising the President that if Mr. Chaudhry had not already resigned then the President would have to dismiss him before appointing an alternative Prime Minister) and also on the affidavit of Ratu Isireli Vuibau filed in support of the Applicants paragraph 9 of which exhibits a copy of the motion of no confidence dated 8 March 01 and paragraph 10 of which reads:

“at that time my assessment and that of many others was that a vote of no confidence in Mr. Chaudhry would pass easily”.

As an alternative to this argument Mr. Bale suggested that in the prevailing circumstances Parliament could not safely be reconvened and therefore no vote could actually held. I will return to this submission.

Moving on to Section 59 (2) – the dissolution of Parliament on the advice of the first Caretaker Prime Minister - the Respondents’ case on the interpretation of the section is simply that Ratu Tevita being in fact the Caretaker Prime Minister he had the constitutional authority to advise dissolution. Accordingly the dissolution was not unconstitutional.

The final section for consideration is Section 109 (2) under which Mr. Qarase was re-appointed as Caretaker Prime Minister. In answer to Sir Vijay’s submissions Counsel for the Respondents pointed out that Section 109 (2) does not specifically require a Caretaker Prime Minister to be a member of the House of Representatives and that it is one of the comparatively few sections in the Constitution which directly charges the President with acting in his own judgment. It is said that in all the circumstances the President acted quite properly in appointing Mr. Qarase who, although he was not a member of the House (which of course had already being dissolved) was, in the President’s estimation the person most suitable for appointment to the position. 

As will be remembered the Respondents’ case involves three distinct limbs but if application of the first limb is successful then the second and third need not be resorted to. On the other hand the Applicants’ argument, at any rate as initially presented involved with the exception of the first declaration just two steps. First, Sir Vijay sought to demonstrate that the various acts complained of were in breach of the provisions of the Constitution and secondly he drew from these breaches the conclusion that the acts were therefore null and void. In the case of the first declaration nullity was not alleged, probably because it was a failure to act which was being impugned.

Following the presentation of Mr. Bale’s and Mr. Matawalu’s submissions on 29 June Sir Vijay filed his second written submission which for the first time included reference to the doctrine of necessity raised by the Respondents.

I think the easiest way to deal with these various arguments is first to address Sir Vijay’s contention that the acts complained of were inconsistent with the relevant constitutional provisions.

First, the failure the summon Parliament. In my opinion Sections 68 (1) and 96 (1) of the Constitution taken together require the President to summon Parliament when advised to do so by a Prime Minister. Whether or not it would be a safe and sensible thing for Parliament to be recalled is a matter which should obviously be considered both by the Prime Minister and the President under the consultation process established by Section 104 but the final decision has to be that of the Prime Minister. I am satisfied that no deviation from the requirements of the Sections can be justified on the grounds of necessity since, for the reason already given, the person charged by the Constitution with deciding whether Parliament should or should not be recalled is the Prime Minister and not the President.

I am satisfied that the March 1 letter from Mr. Chaudhry to the President amounted in effect to an advice to recall Parliament and that the President knew that his Prime Minister wanted Parliament recalled. The fact that a substantial number of other members of the House also wanted recall is relevant but not decisive to the issue calling for ruling. 

I think the importance of upholding and asserting this most fundamental aspect of our representative parliamentary system of government is such that there can be no reason for not clearly stating it and accordingly I found no ground not to exercise my discretion to grant the first Declaration sought.

As to the second Declaration my view is that Sir Vijay is correct when he links Section 109 to the two preceding sections. I also agree that Section 109 would not normally come into operation unless the Prime Minister has either failed or has lost a vote of confidence on the floor of the House. But I do not agree that Section 109 (1) absolutely prevents a President from dismissing a Prime Minister where in fact no such loss of a confidence vote has occurred. I can, for example, envisage an exceptional situation where a Prime Minister who knows perfectly well that he would lose a vote of confidence might advise a lengthy prorogation under Section 59 (2) or a long postponement of the next session of Parliament under Section 68 (2) in order to buy time to attempt to rebuild his majority. Since such advice could not be refused it seems to me that the Prime Minister would, on Sir Vijay’s interpretation of the sections, have a de facto veto over Parliament’s recall despite the provisions of Section 68 (3) which appear to have been designed, in my view unsuccessfully, to prevent the occurrence of such a situation which would obviously be unacceptable.

I am fortified in reaching this conclusion by two further considerations both of which received attention in Akintola.

The first is that the power conferred on the President to dismiss by Section 109 (1) is not stated to be one which he may exercise in his own judgment. But a Prime Minister will hardly be likely to advise his own dismissal. This curiosity which was considered in Akintola at pages 632 and 633 led the Privy Council to conclude that the power was obviously one which had to be exercised by the Governor in his own “deliberate judgment”. In Fiji, too, I hold that these powers are exercisable by the President in his own judgment.

Secondly, I do not find that the wording of our Constitution is so different from the wording of the Constitution of Western Nigeria as to deprive Akintola’s case of persuasiveness. In these circumstances I hold that there may under our Constitution exceptional circumstances in which the President could find himself validly satisfied that the Prime Minister had lost the confidence of the House without a vote being held and could therefore find himself justified in proceeding to dismissal. Whether or not in fact the President had reasonable grounds for proceeding to dismissal in this case I will consider later.

The outcome of Declaration C seems to me to depend on the outcome to Declaration B. This is because there is no argument that if Ratu Tevita was a validly appointed Caretaker Prime Minister then he could certainly advise dissolution. On the other hand if Mr. Mahendra Chaudhry’s dismissal was null and void then he remained in office and Ratu Tevita’s advice was merely opinion. It should, however, be noted that Mr. Mahendra Chaudhry was himself apparently in favour of the dissolution of Parliament as soon as this could practicably be achieved. On 7 March 2001 Mr. Chaudhry wrote to the President (Exhibit AY 20 to the supporting affidavit of Akuila Yabaki filed on 23 March 01) in the following terms:

“there have been calls from some quarters for a fresh general election, so that, after many months of upheaval and uncertainty, the people can deliver fresh mandate for leadership. Having carefully considered this matter and consulted widely, I support this call.

Accordingly, subject to the matters I set forth below, I am prepared, if required, to advise you in terms of Section 59 (2) of the Constitution that the House of Representatives should be dissolved to make way for fresh elections in accordance with our Constitution.

I am also sensitive to the call by several indigenous groups that the current method of voting set forth in Section 54 of the Constitution and the Electoral Act should be changed from the current “alternative vote” system to the “first past the post” system of old. This will necessitate a change to the Constitution.

On this matter my party would be prepared to accept the guidance of the BLV (the GCC) if in its view those changes ought to be effected prior to the elections. I am, in those circumstances prepared to delay my advice accordingly to accommodate these amendments.” (emphasis added)

It is true that Mr. Chaudhry’s letter went on to call for the reinstatement of the People’s Coalition Government in a caretaker capacity but the point which is here being made is that the considered opinion of the person who was, on the Applicants’ case the then legal Prime Minister was that Parliament should be dissolved and fresh elections be held.

Turning to the final declaration, declaration D, the appointment of Mr. Qarase, the Respondents dispute the Applicants’ suggestion that Section 109 (2) requires the person appointed as Caretaker Prime Minister to be a member of the House. While it is not disputed that in normal circumstances an appointee would be a member, the Respondents say that the section does not, as a matter of fact, include the words “who is a member of the House of Representatives” following the word “person”.

In answer to Sir Vijay’s suggestion that Section 99 (2) requires ministers to be members of the House or the Senate it is said that this section can have no application to Caretaker Ministers who may well be appointed after the House has been dissolved.

In my view Section 3 of the Constitution again tends to favour the case advanced by the Respondents. A literal interpretation of the sections under consideration would, in my view lead to paralysis. This can be demonstrated by taking Sections 97, 99 (2) and 109 (2) together.

In this scenario the Prime Minister loses the confidence of the House and the provisions of Sections 107 and 108 having been exhausted the President dismisses him under Section 109 (1) and appoints a Caretaker Prime Minister to advise dissolution under Section 109 (2). This person, as already pointed out, does not have the confidence of the House since otherwise he would not be advising dissolution. In the period between dissolution and the recall of Parliament after the general elections a government is obviously required and must be made up of a Caretaker Prime Minister and Caretaker Ministers. But Section 97 of the Constitution states that governments “must have the confidence of the House of Representatives”. In the case of a Caretaker Government this requirement is ex hypothesi impossible to satisfy. In this sort of circumstance the Constitution has somehow to be made to work and it is at this stage of the discussion that Mr. Bale introduces the proposition that where strict compliance with the provisions of the Constitution would lead to paralysis the relevant sections must be read as directory rather than mandatory (see Clayton v. Heffron (1960) 105 CLR 214 and Simpson v. Attorney-General [1955] NZLR 271).

Mr. Bale pointed out that in the situation in which Fiji now finds itself were not such an approach to be taken it is doubtful whether the Constitution could, as it were, be “got back on the rails”. Sections 60 (1) and 68 (2) illustrate the dilemma particularly sharply.

It will be appreciated from the foregoing that with the exception of Declaration A I am not satisfied that the relevant sections of the Constitution must in every situation be interpreted in the strict manner advocated by the Applicants. In some unusual or extreme situations a departure from the normal requirements of the Constitution is in my opinion permitted. 

As those of us with even a little general knowledge know under extreme conditions the rules governing normal situations tend to break down. This is the experience of physicians, mathematicians, psychiatrists and sociologists. It is also the experience of lawyers.

In law, as I have already mentioned, this departure is justified under what is known as the doctrine of necessity. 

If disputed, the onus on the party advocating justification is not a light one, as emphasised by the Fiji Court of Appeal which in Chandrika Prasad (ABU 78/00) adopted and followed the five conditions set out by Haynes P of the Grenada Court of Appeal in Mitchell v. Director of Public Prosecutions [1986] LRC (Const) 35, 88.

I have added the qualification “if disputed” advisedly. It brings me to an aspect of this case which I consider to be most significant. 

As made clear by Sir Vijay and as will be gathered from the specific Declarations sought, the Applicants do not challenge the declaration of the State of Emergency in May 2000 nor its continuation in the form of the Emergency Decree which has been renewed every 14 days under the provisions of Section 1 of the Decree since its proclamation by the Military Government on 2 June 00. And neither do the Applicants challenge the validity of the process under which the GCC appointed the President. Yet it is really beyond doubt that both the State of Emergency and the appointment process of the President were inconsistent with the applicable provisions of the Constitution.

When this was pointed out to Sir Vijay his response was forceful and immediate: the function of the Court, he protested, is only to consider the specific matters placed before it by the Applicants. For the Court to look beyond those matters was to confuse law with politics.

That a Court is only called upon to consider the particular issues placed before it by the parties is undoubtedly usually the case. Where however the Court is sitting as a public law court or as a constitutional court I do not believe that the same principles apply. I do not accept that an Applicant in a constitutional case can reasonably or properly tell the Court to limit its purview to the sole matters placed before it. While a private litigant is free to argue whatever narrow case he pleases, once the Court is involved in the interpretation of public law it must have regard to a much wider context in which the litigation is taking place. An example of this principle in operation is the requirement that the Court have regard to the interests of good administration when considering granting leave to move for judicial review.

The matters complained of by the Applicants are but four examples of events which have occurred since May 2000 which, if considered in the way suggested by Sir Vijay would plainly be unconstitutional and therefore would, on his argument be null and void.

This is not merely my own view. It was also, at any rate at one time, the view of the Applicants as is plain from the evidence.

On 18 March 2001 the Citizen Constitutional Forum wrote to the Commonwealth Secretariat (Exhibit AY 3 to Akuila Yabaki’s first affidavit). On page 2 of the letter the CCF advises that it intends to seek an injunction against the Permanent Secretary for Finance to stop payments of public funds to an illegal government. It also advises that it is considering actions challenging the appointments of the GCC “particularly with reference to the appointment of President and Vice President”. This letter was followed by another from the CCF written to the newly appointed Chairman of the GCC, Ratu Epeli Ganilau on 21 March (Exhibit AY 13). On page 2 of the letter we read:

“This brings us to the issue of your appointment as Chairman of the (GCC), the appointment of some members by the Interim Minister of Fijian Affairs and the appointment of the President and the Vice President. All these are illegal because correct legal procedures have not been followed.”

As I see it, the declaration of the State of Emergency, the passage of the 2001 Appropriation Decree 2000 (amended, incidentally, only a few days ago by Presidential Proclamation-GN 993/01), the appointments to the GCC and the appointment of the President and the Vice President are every bit as significant as the events placed before the Court by the Applicants.

It seems to me to be perfectly reasonable and proper to ask the Applicants why the principled approach which it is asking this Court to adopt in relation to certain events is not to be adopted in relation to others of equal or even greater significance.

I suggested to Sir Vijay that if I were to accept his approach and rule that any departure from the strict requirements of the Constitution was null and void then it would necessarily follow that this Court would be opening the way to rendering null and void the whole governance of Fiji since the hostages were released last year, the date on which according to the Fiji Court of Appeal the crisis ended (see Chandrika Prasad 27). I have to say, with respect that I do not think that I received a satisfactory response to this suggestion.

In support of the Respondents claim that such departures from the strict requirements of the Constitution as might be found to have occurred were justified on the grounds of necessity the Respondents filed a substantial body of evidence.

The affidavit of Laisenia Qarase exhibits the address to the nation by the President immediately following his swearing in on 15 March (Exhibit A). In his address the President explained that in his view the 1997 Constitution did not provide “complete and realistic answers to the misfortunes caused by an armed insurrection and revolution”. That this is plainly correct can be demonstrated by the former President’s need to depart from the procedures unambiguously required by the Constitution for the declaration of a State of Emergency. He was unable to take Cabinet’s advice under S187(1) since the Cabinet could not meet, he was unable to activate the Emergency Powers Act 1998 which was passed to enable S187 to operate and he was forced to resort to an old colonial Ordinance the Public Safety Act 1920 (Cap 19) which by sheer good fortune had not been repealed.

The President went on to say that “in view of the political disarray and confusion (he) had decided that neither a resumption of the People’s Coalition Government nor a broader coalition government would be viable”.

What, briefly, was the evidence to justify this conclusion?

Mr. Waqanisau in his affidavit sets out the principal concerns at paragraph 16. I do not wish to dwell on them in any detail but the concerns included the undisputed disarray and fragmentation of political parties (a situation far removed from that before the Fiji Court of Appeal which recognised an intact People’s Coalition Government “ready and willing to assume office” – Chandrika Prasad page 43 - and a concern that reconvening Parliament and the restoration of the Chaudhry government would lead to a serious threat to law and order.

The affidavit of Asesela Sadole, the Acting Secretary of the GCC exhibits a copy of resolutions passed by the GCC at its meetings on 8, 9 and 13 March 01. The resolutions include a call for the dissolution of Parliament, the continuation in office of the interim government and new elections (see Exhibit AS 12 and also Exhibit AY 7). The affidavit of Rev. Laisiasa Ratabacaca, the General Secretary of the Methodist Church in Fiji provides strong support for the way forward mapped by the President in his address to the country. It exhibits letters from 24 Divisions of the Methodist Church supporting the President’s approach.

The affidavit of Ratu Meli Bainimarama, the Permanent Secretary for Fijian Affairs is in a similar vein. At paragraph 12 (h) the Permanent Secretary suggests that there is “strong support for the actions of the President in refusing to reconvene Parliament, in dismissing Mahendra Chaudhry, in dissolving Parliament, in appointing a Caretaker Government and in calling for fresh elections in August 2001”. He exhibits letters from all 14 Provincial Councils supporting the President as evidence for his belief. 

The affidavit of the Commander of the RFMF Commodore Voreqe Bainimarama concludes with the statement that:

“the RFMF reaffirms its support and belief that in order to uphold the rule of law, maintain the credibility of the RFMF and ensure national security the nation cannot be allowed to revert to the pre-19 May 2000 status and must be projected forward as directed by the President”.

The Commander (paragraph 7), Mr. Waqanisau (paragraphs 13N and 20B) and Mr. Qarase (paragraph 17) all referred to intelligence briefings to the National Security Council which suggest that the law and order situation is far from settled.

Paragraph 6 of the affidavit of Ratu Epeli Kanaimawi, the Chairman of a Committee set up by the GCC as early as April 2000 to investigate “the causes of discontent and disunity among Fijians” reads:

“judging from the strong views expressed at the various meetings which the Committee attended throughout Fiji I am able to say that the appearance of calm which presently prevails in Fiji is due largely to the respect which the indigenous Fijians have for the President and their acceptance of the wisdom in the way forward for the whole nation he has mapped out.”

In answer to this body of evidence a number of affidavits were filed by the Applicants. These include principally an affidavit by Jone Dakuvula and an affidavit by Ratu Meli Vesikula.

Paragraph 26 of Ratu Meli’s affidavit reads as follows:

“I have noted that in his affidavit, Commodore Bainimarama has expressed concern at the security situation that may arise if the President were to recall Parliament. I disagree with him for two reasons. First, I do not believe that there would have been any disorder, particularly if the President have properly explained why such a course of action was necessary or desirable. Second, between the Military and the Police there should have been a plan of action to deal with any trouble. The State of Emergency has been continued. Curfew could be re-introduced. Most of our urban centres have limited access that could have been controlled.”

The thrust of Mr. Dakuvula’s affidavit (paragraphs 17 et. seq) is that the average Fijian voter does not understand the 1997 Constitution and that their views have been manipulated by their leaders, whether provincial or religious. He reports that while distributing copies of a very useful guide to the Constitution he and his team were warmly welcomed with kindness and generosity wherever they went. His belief is that the threat of violence has been much overstated. At paragraph 49 he states that he believes that:

“only a very small group of Fijians are opposed to the 1997 Constitution.”

Sir Vijay forcefully advanced the views and reasons for them contained in these affidavits. He also suggested that it was odd that neither of the Commissioner of Police nor Mr. Sitiveni Rabuka, whom he describe as an acknowledged expert on the security situation, had been called by the Respondents.

Now, Mr. Rabuka was not called by the Applicants either, although he does appear in the evidence.

On 10 March 00 (Exhibit AS 6 to Mr. Sadole’s affidavit) a letter was sent by Mr. Rabuka who was then the Chairman of the GCC, to Mr. Chaudhry. This was 9 days before Parliament was taken over by the Speight gang. Attached to the letter was a petition of grievances against the Government and the 1997 Constitution. According to Mr. Rabuka’s letter this petition was signed by no fewer than 13,000 people.

On 2 July 01, during the course of this hearing, the Fiji Times published an interview with Mr. Rabuka. A copy of this was handed up by Mr. Bale without objection. During the interview, when asked about the current security situation Mr. Rabuka answered as follows:

“we are still not out of the woods. There is still potential for disturbance in the normal law and order situation that we are now enjoying. We are enjoying it in the shadow of tough military action and until we maintain stability and respect for law and order rather than fear we will not come out of the woods.”

For once I find myself in agreement with the General.

As accepted by the Fiji Court of Appeal in Chandrika Prasad it is the current situation which is of primary relevance. The findings of a Court will of course reflect the evidence placed before it and most of the evidence placed before this Court was unavailable to the Fiji Court of Appeal.

I do not think that, as claimed by Sir Vijay in paragraph 48 of his final written submission that it was “ordinary times” during and after the decision in Chandrika Prasad.

During the entire hearing the Court of Appeal was ringed with heavily armed troops, road blocks were set up and sharp shooters patrolled the roofs of Government Buildings. During the hearing of this present case the Court has been cordoned off with a heavy police presence while the Speight case struggles to get off the ground. I do not think that 13,000 signatures represent a “small group” which Mr. Dakuvula says is all that exists. I am not prepared to consider that the average Fijian voter is as easily led as is suggested by the Applicants. I do not believe that their leaders would callously misrepresent the views held by their people. No request was made to cross examine any of the Respondents witnesses. The Applicants seems to be suggesting that the evidence filed by them is false and misleading. I do not find it to be so.

It must be remembered that we are dealing here with a very serious situation, a decision which, if the Respondents are correct could, if wrongly decided lead to a major breakdown of law and order and which could even threaten the unity of the State, something which could hardly have been imagined until advocated by prominent persons in June last year. When I put it to Sir Vijay that the Army and Security Services had been split he scornfully accused me of introducing matters which were not in evidence. He was wrong. The evidence is contained in the Applicant’s own case.

On 25 September 2000 two of the Applicants wrote to the President (Exhibit TLB 1 to Dr. Baba’s affidavit). On page 2, sub paragraph (f) they wrote:

“there is a serious split within the ranks of the FMF and the Fiji Police Force”.

This is wholly consistent with the Commander’s evidence. It is ironic to say the least, that the Applicants argue, as has been seen in Ratu Meli Vesikula’s affidavit that law and order can be maintained in Fiji by the firm implementation of an Emergency Decree which, on their own case is plainly unconstitutional.

The final matter which I wish to consider is the suggested administrative difficulties which Mr. Bale argues would flow from any decision to invalidate the Plaintiffs actions.

Mr. Matawalu linked these difficulties to the necessity argument when at paragraph 62 (d) of his written submissions he wrote:

“it should not be necessary to wait until there is a breakdown of law and order before the necessity doctrine can be invoked. There is no reason in principle why the doctrine should not support efforts to avert a breakdown of the institutions of government”.

I agree.

The consequences of nullifying the actions of the Caretaker Government appointed in March would, as already suggested, include nullifying all actions already taken by them. A little research shows that such actions would include scores of appointments to Commissions, to Trusts, to Boards, to Councils, and would extend to Counter-Inflation Orders relating to food stuffs and fuel prices and appointments and decisions of Wages Councils. All these can be found by simply perusing the Fiji Government Gazette.

As anyone who lives in Fiji well knows, and as Mr. Rigamoto’s affidavit attests, preparations for holding a general election are well under way. A date for a general election, 25th August, has already been fixed. 

According to advertisements placed in the newspapers and interviews given on television two at least of the Applicants herein are actively engaged in campaigning for the forthcoming election. The decision to hold fresh elections has received widespread support. On 20 March 2001 the New Zealand Minister of Foreign Affairs issued a statement welcoming the announcement by the Caretaker Prime Minister that fresh elections would be held (Exhibit 1 to Mr. Qarase’s affidavit). On 15 May an aid package worth $700,000 to assist with the election was also promised by Mr. Goff (Exhibit I). According to a Commonwealth News Release of 20 March 2000 (Exhibit K) the Commonwealth “expressed satisfaction that the Caretaker Administration will work towards holding free and fair elections under the 1997 Constitution from 27 August to 7 September as advised by the Interim Prime Minister”.

On 24 April 2001 Mr. Alexander Downer, the Australian Minister for Foreign Affairs offered $1,000,000 to assist in funding the election. Writing to Mr. Qarase (Exhibit H) he stated:

“(there have been indications) that legal challenges might lead to the postponement of elections. In response I made it clear that Australia would consider this most regrettable and I would ask, as far as it is within your power that you ensure the elections are held at the time proposed.”

In my view these sentiments accurately reflect the reality of the situation. As I write this Judgment the President has just expressed the sorrow of the nation for what occurred in May 2000 and in the following months. He has called upon all of us to put these events behind us and to look to a better future. I do not believe that it would be feasible to turn back the clock to May 2000 or even to March 2001. I believe that it would create a legal and administrative nightmare. I also accept the evidence of the Respondents that it would create a wholly unacceptable risk to the peace and welfare of the nation. I find that such departures from the normal requirements of the Constitution as occurred in relation to Declarations B, C and D were justified on the grounds of necessity. I do not accept, as suggested by Sir Vijay that to excuse these actions amounts to giving a charter to terrorists. Such pessimism is, on my evaluation of the materials before me, unwarranted.

I do not question the motives of the Applicants which I am sure are sincere but Courts must remember that they are part of society and not above it. Their Judgments must be sensible and practical and should avoid excessive legalism. They would do well to remember the words of William Blake who wrote:

“the errors of a wise man make your rule rather than the perfections of a fool”.

I grant the first Declaration in the terms sought. All other reliefs are refused.

M.D. Scott
Judge

11 July 01