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Koroi v Ravuvu (No.2) [2001] FJLawRp 46; [2001] 2 FLR 174 (15 June 2001)

JOKAPECI KOROI, MAHENDRA PAL CHAUDHARY & FIJI LABOUR PARTY v ASESELA RAVUVU, JOE SINGH & DR. APENISA KURISIQILA (No. 2)

High Court Civil Jurisdiction
11, 15 June, 2001 HBC 007/01L

Injunction – whether President's appointment of a constitutional review commission within lawful ambit of caretaker administration –– doctrine of necessity – whether authorisation for expenditure of public funds for constitutional review work is within permitted scope of work of a caretaker Cabinet – 1997 Constitution

The Court issued short reasons for allowing an injunction application to restrain the members of a Constitutional Review Commission from sitting and expending public funds for its work. The Court discussed the applicability of the review work under the Doctrine of Necessity. The Court looked at whether the actions of convening a Constitutional Review Commission to carry out reform work, normally the purview of Parliament, fell under the lawful ambit of a caretaker administration. The Court found it clear that the parliamentary will will otherwise be subverted if injunctions are not allowed. Similarly, the authorization of expenditure of public funds for reform work was outside the scope of a caretaker cabinet.

Held – (1) The advice of the caretaker cabinet tendered to the President to appoint a Constitutional Review Commission was outside the lawful ambit of a caretaker administration.

(2) The doctrine of necessity is not applicable where matters are routine and necessary. A constitutional review commission is not an act which courts will validate under the necessity doctrine.

(3) The authorisation for the expenditure of public funds for constitutional reform work is outside the permitted scope of work of a caretaker Cabinet and is unlawful.

Injunction restraining the members of the Commission from further sittings issued.

[Note: the Court never issued full reasons.]

Cases referred to in Judgment
Madzimbamuto v Lardner Burke [1968] UKPC 2; [1969] 1 AC 645
Texas v White 74 US [1868] USSC 97; (7 Wall) 700 (1868)

Vipul Mishra for the Plaintiffs
Kitione Vuetaki for the First Defendant
Suresh Chandra for the Second Defendant

15 June, 2001 JUDGMENT

(On Injunction)

Gates, J
I had hoped to have the full reasons for my decision ready by today. This has not proved possible because of the workload at this High Court centre. I shall publish my reasons in full later.

I have come to a clear view that these injunctions must be granted. Accordingly I grant the orders requested in the summons of 31 May 2001. It is abundantly obvious that the advice of the Cabinet tendered to H.E. The President to appoint a Constitutional Review Commission was outside the lawful ambit of a caretaker administration.

The doctrine of necessity is a narrow doctrine and does not cover matters outside of the routine and the necessary Madzimbamuto v Lardner Burke [1969] 1 AC 64 5 at p 732E; Texas v White 74 US [1868] USSC 97; (7 Wall) 700 (1868) at p 733.

Unusual programmes of expenditure or reformist projects are the prerogative of an elected government. A lawful government needs to be buttressed by holding the confidence of the House of Representatives, and by acting within the Constitution with the two other bodies of Parliament namely, the Senate and the President. Moving in advance of the will of Parliament in reformist fields, however well intentioned, is not an act which the courts will validate under the necessity doctrine. The authorisation for the expenditure of public funds for such reform work is similarly outside the permitted scope of work of a caretaker Cabinet. Such authorisation is unlawful. Parliament which carries the necessary constitutional Jurisdiction and authority for reform, may, when elected, set up a Parliamentary Select Committee for such work.

Orders accordingly.

Application for injunction granted.

Marie Chan