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FIJI: No Winners in the Supreme Court Judgement:

Paper 1057                                                    14.07.2004

by Dr. S. Chandrasekharan

On July 9, 2004, the Supreme Court of Fiji gave its final views on the multiparty cabinet case.

The case was simply on the question of the number of ministers, the parties having more than ten percent of the members in the Parliament, should have in the cabinet.

A summary of the opinion of the Supreme Court on the President’s reference of the Multi party Cabinet case is enclosed in the appendix.

The points made out in the Supreme Court’s views are

* The main contention is the interpretation of section 99 (5) of the Constitution that states that the Prime minister must invite all parties with 10% or more of the seats in the House of Representatives to be represented in the Cabinet "in proportion to their numbers in the House."

* The Prime minister’s contention is that on the basis of total membership of the Parliament of 71, his party is entitled to 45% of the places in the cabinet -ie. 32 seats out of 71. The FLP having won 28 seats out of 71 is entitled to 39% of places in the cabinet. In a 36-member cabinet this would translate into 16 positions for the Prime Minister’s party- the SDL and 14 seats to the FLP of Mahendra Chaudhry.

* On the other hand the contention of Mahendra Chaudhry of the Fiji Labour Party is that on a proper interpretation of section 99, his party is entitled to a proportion of the total number of the seats in the parliament- that translates into 19 positions for SDL and 17 positions for FLP.

* The court agreed by a majority of four of five that neither of the interpretations is correct.

* The correct interpretation would be that the proportion of the parties having more than 10 percent- here in this case the Prime Minister’s SDL and that of the other eligible party- the FLP should be in the same proportion in the cabinet as there are members, whatever be the total composition of the cabinet.

* In other words while the Prime minister may appoint independent members of the House of Representatives and members of the Senate who are not members of a political party he will have to ensure that the proportion of the SDL to FLP will remain the same in the cabinet.

To us the judgment raises more questions than answers. It has made the interpretation of Section 99 of the Constitution more complicated.

Firstly, it maintains that in any situation the proportion of the two parties eligible for the cabinet should be in accordance with the proportion of the seats won by them ( to this extent Chaudhry is correct). If so, can the Prime minister take any number of independents and Senators to increase the size of the ministry and to reduce the clout of the opposition? It appears so.

Secondly, it does not mention about representation of other parties who are in the cabinet at the pleasure of the ruling party- the SDL. Section 99(6) considers that these representatives are to be deemed to be from the Prime minister’s own party.

Thirdly, what happens if the ruling party fights the election as a coalition group- Would the proportion be in accordance with the Prime minister’s party or the Coalition. ?

Fourthly, does it not go against the spirit of the multiparty cabinet in the Constitution and article 99 specifically which envisages an "equitable sharing of power amongst all communities in Fiji when the Prime minister can inflate the composition of the Cabinet at his will by getting other independents and Senators?

Having said this, it is time that Mahendra Chaudhry relents.

In our earlier paper 783 of 9th September 2003, we raised the question whether numbers matter to Chaudhry? We also asked whether the interests of Indo- Fijians are better protected if there are 17 seats instead of 13?

There is another case of Chaudhry pending in the lower court that relates to lack of good faith on the part of the Prime Minister Qarase in allocation of portfolios to his party.

Court cases will continue and the next elections are due in 2006. Chaudhry has lost valuable time in going on fighting without making any contribution to the welfare of the people who are considerable in number and who have voted for him in the last elections. It must said to the credit of Qarase that he has succeeded in bringing about certain normalcy in Fiji.

Prime Minister Qarase and Mahendra Chaudhry have been meeting regularly to sort out their differences, the most recent one being on June 6. With both men having large egos, the meetings have turned out to be the "dialogue of the deaf." The only agreement they seem to make in every meeting is to meet again!

If Mahendra Chaudhry wants to prove that the 1997 Constitution is unworkable, then he is doing the right thing in going to the courts regularly on one point or other. If he wants to prove that given the goodwill from both sides, the 1997 Constitution is the best that could happen for all the communities in Fiji, he should then relent. The choice is his.

A summary of the Supreme Court’s views is given as an appendix.   

Appendix:

Opinion of the Supreme Court on the President's Reference of the Multi-Party Cabinet Case
Jul 9, 2004, 15:00

Summary of the Court's Opinion

1. Subsection 99(3) of the Constitution of Fiji requires that the Prime Minister to establish a multi-party Cabinet in the way set out in that section. The Prime Minister is required by subsection 99(5) to invite all political parties with 10% or more of the seats in the House of Representatives to be represented in the Cabinet (hereafter ‘qualifying parties’).

2. Last year, on 18 July 2003, the Supreme Court dismissed an appeal from the Court of Appeal which had upheld a declaration made in the High Court of Fiji about the obligation of the Prime Minister under section 99. That declaration was as follows:

“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.”

3. Since the decision of this Court upholding that declaration in 2003, the Prime Minister and the leader of the Fiji Labour Party have disagreed about the numbers of parliamentary members of the Fiji Labour Party that the Prime Minister is obliged to have appointed to the Cabinet. That dispute turns on the interpretation of section 99. It turns particularly on the words of section 99(5) that the Prime Minister must invite all parties with 10% or more of the seats in the House of Representatives to be represented in the Cabinet “in proportion to their numbers in the House”. These are the critical words whose meaning is in contention.

4. In this case the only parties with 10% or more of the seats in the House of Representative are the Prime Minister’s party, the SDL, (with 32 seats) and the Fiji Labour Party, the FLP (with 28 seats)

5. The Prime Minister contends that the words ‘in proportion to their numbers in the House’ in subsection 99(5) of the Constitution refers to the proportion of the number of seats held by a qualifying party in the House of Representatives to the total membership of the House i.e. 71 seats. On this basis, according to the Prime Minister, his party is entitled to 45% of the places in Cabinet and the FLP to 39%. In a proposed 36 member Cabinet this would translate into 16 positions for the SDL and 14 for the FLP leaving a balance of 6 positions which the Prime Minister claims to be entitled to fill.

6. The leader of the FLP, Mr Chaudhry, says that on the proper interpretation of section 99, the SDL and FLP is each entitled to a proportion of the places in Cabinet that is the same proportion which it has of the total number of seats held by the SDL and FLP combined i.e. 60 seats. The FLP says that the words of section 99 require that each qualifying party with 10% or more of the seats in the House should be represented in the Cabinet according to the proportion which it holds of the total of all seats held by qualifying parties, including the Government Party. On this basis, according to Mr Chaudhry, the SDL would be entitled to 53% of the places in Cabinet and the FLP to 47%. This translates to 19 positions for the SDL and 17 positions for the FLP.

7. The dispute not having been resolved, the Prime Minister requested the President to refer to the Supreme Court, for its opinion, a number of questions about the proper interpretation of section 99 of the Constitution and, in particular, the numerical entitlements of the SDL and the FLP in a multi-party Cabinet. These questions were referred to the Court under section 123 of the Constitution. The Prime Minister and the leader of the FLP were represented before the Court by counsel on 11 May 2004 when the case was argued.

8. The Court has agreed by a majority of four of its five members, that neither of the interpretations advanced by the Prime Minister and Mr Chaudhry is correct.

9. The words in section 99(5) requiring representation of qualifying parties in the Cabinet in proportion to their numbers in the House refer both to the Prime Minister’s party and every other party with 10% or more of the seats in the House of Representatives. They require that, for each party in the Cabinet, the number of its places in the Cabinet has the same proportion to the number of its seats in the House. Put simply, if the Prime Minister’s party had twice as many seats in the House as the FLP, it would be entitled to have twice as many places in the Cabinet as the FLP.

10. The Court is also of the view that it is open to the Prime Minister to appoint to the Cabinet Independent members of the House of Representatives and members of the Senate who are not members of a political party represented in the House of Representatives. Such appointments, not being members of political parties in the House of Representatives would not count as part of the entitlement of the Prime Minister’s party under section 99(6). It is not necessary that a person be a member of the House of Representatives or of the Senate is eligible for appointment as a Minister under section 99(2).

11. The interpretation of section 99 which we have adopted flows from the ordinary meeting of its words having regard to their context and purpose and to the overriding requirement of fair representation for parties in the Cabinet under section 99(4). It means that the Prime Minister is free to establish a Cabinet composed of his own party members and FLP members and, provided he ensures that the number of places held by each bears the same proportion to its seats in the House of Representatives, he may also appoint Independents or non-party Senate members as Ministers.

12. The Prime Minister might, of course, decide not to appoint any Independents to his Cabinet. In that case, in a 36 member Cabinet, on the interpretation of section 99 favoured by the majority of the Court, the Prime Minister would be entitled to 19 positions and the FLP to 17. That reflects the numbers claimed by Mr Chaudhry. However, Mr Chaudhry’s proposition is only valid in the case of a Cabinet comprised solely of members of political parties with no Independents or non-party Senate members. The Prime Minister could decide, for example, to compose his Cabinet of 17 members from his own party. He would then, on the correct interpretation of section 99, have to appoint 15 members (rounded up from 14.8) from the FLP. He would then be free to fill 4 places in Cabinet with Independents or non-party Senate members.

13. The reasons for the opinion of the majority, which are published today, set out in detail the basis for these conclusions. As can be seen, they do not support the contentions advanced by either the Prime Minister or Mr Chaudhry. They do however yield the same result as that advanced by Mr Chaudhry if the Cabinet is to be made up only of members of political parties represented in the House of Representatives.

14. The majority comprises myself and Justice Mason, French and Weinberg. Justice Gault differs from the majority view in that he considers that the Constitution does not permit the Prime Minister to appoint Independents or non-party Senate members to the Cabinet except arguably as part of the entitlement of the Prime Minister’s party.

15. We should add that the interested parties and the Court were in agreement that the entitlement of each political party to places in the Cabinet is to be determined from time to time as the composition of the House of Representatives changes.

16. The questions posed by the President and the answers given by the Court are as follows:

Q.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;

Answer: No – This is the unanimous opinion of the Court.

(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

Answer: Justice Gault answers this question “Yes”. The majority answers it, “yes, but only if the Cabinet is composed entirely of members appointed from political parties represented in the House of Representatives.”

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

Answer: The Majority answers this question, “yes, the words refer to the proportion which the number of places which each party, including the Government party, is allocated in the Cabinet bears to the membership of that party in the House of Representatives.

Q.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?

Answer: From time to time as the composition of the House of Representatives changes. This is a unanimous opinion of the Court.

Q.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?

Answer: The majority opinion is “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”.  

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