Govt. nominations on Growers Council illegal: Judge

[Posted 29 July 2003, 1700]

The High Court has declared illegal the 8 nominations to the Sugar Cane Growers Council by interim sugar minister Kaliopate Tavola following Council elections in 2001.

The nominations were deliberately stacked against the National Farmers Union which had won the Growers council elections convincingly in March that year. It deprived the NFU of an outright majority on the board of the Growers Council thus usurping its democratic right to run the Council for the next three years.

The eight nominations are made by the Sugar Minister under a 1992 Sugar Industry Decree which had been proclaimed with the purpose of diluting NFU’s majority in the Council.

The NFU mounted a legal challenge to the nominations after it was denied its democratic right to form the Growers Council board.

It sought a declaration that:

• the nominations were invalid because the Minister had not been legally appointed.
• the amendments to the Sugar Industry Act by the Sugar Industry Decree of 1992 was invalid
• The doctrine of necessity could not legitimise the appointment of the defacto minister more so if he makes appointments under an invalid legislation.

In a landmark ruling released just a day before the much-awaited Supreme Court judgment in the multi-party cabinet case Justice Anthony Gates declared that since the appointment of the caretaker administration of Laisenia Qarase in March 2001 was unlawful and therefore the appointment of Tavola as Sugar Minister was unlawful, his nominations were also “null and void and of no legal effect”.

The Judge therefore ordered that:

• the purported appointments of the Sugar minister and the acting minister was null and void
• The sugar industry Decree of 1992 was invalid and of no legal effect
• The nomination of 8 councillors by the Minister was null and void and of no legal effect

The Judge went further and found that the nomination process “reduced the rights of cane growers”.

“The Decree here changed the composition of the Council. By reducing the number of democratically elected representatives and introducing non-democratically elected nominations to be made by the Minister, the rights of citizens concerned in the sugar growing industry were reduced. Indeed, it will be remembered the Minister said he made the nominations “ to achieve balance to the representation in the Council”. This would of course change the ratio thrown up by the election. Originally the Board selected by the Council was able to make nominations.

The Decree has not been ratified. It changes the democratic provisions by reducing the rights of the growers. It is not therefore a routine piece of legislation merely oiling the wheels, keeping things moving. It seeks reform without mandate.

I find the amending Decree is to be struck down. The elections are to be carried out in accordance with legislation passed by Parliament.

I find the Minister had no powers to nominate since he was himself invalidly appointed , seeking to act under invalid legislation. ”

National Farmers Union lawyers have written to the chief executive of the Sugar Cane Growers Council, Jaganath Sami, informing him of the Court ruling and asking that he take steps to ensure that the Council and its board is properly constituted.

One of those most affected by the ruling is board chairman Rusiate Musadroka who himself is a nominee of the Sugar Minister and therefore illegally appointed.