In a landmark ruling that preceded the much awaited Supreme Court ruling by just a day, the High Court has declared illegal and unlawful the series of actions taken by the President in March 2001 when he dismissed Mahendra Chaudhry as Prime Minister, appointed Ratu Tevita Momoedonu prime minister for 24 hours so he could dismiss Parliament, and appointed the caretaker government of Laisenia Qarase to take the nation to general elections in August.
Justice Gates’ ruling was timely. His findings were part of a ruling on a National Farmers Union case challenging nominations to the Sugar Cane Growers Council of eight councillors appointed by Kaliopate Tavola as interim minister for foreign affairs, external trade and sugar, following the Sugar Cane Growers Council elections in April 2001.
The elections were won by the National Farmers Union. It was denied control of the Council board because the 8 nominees of the minister were deliberately stacked against the NFU.
The NFU argued that since the minister’s appointment was unconstitutional, his appointments were invalid. NFU also challenged the legality of the Sugar Industry Decree 1992 under which the minister exercised his powers of nomination.
Justice Gates based his judgment on the Chandrika Prasad appeal case and the Appeals Court ruling that the 1997 Constitution was still valid, and that Parliament had not been dismissed but prorogued for six months on 27 May 2000.
With the restoration of the 1997 Constitution, “the country was left with a prorogued parliament awaiting its recall. Neither the Prime Minister nor the members of Cabinet had thereby lost office, nor would any have suffered such a prorogation”.
Instead of recalling Parliament, the President chose instead to dismiss the Prime Minister and take steps to dissolve parliament and appoint a caretaker government.
“These actions by HE the President were clearly unlawful…The President could only have dismissed Mr. Chaudhry as Prime Minister if he had acted in accordance with section 109 (1) of the Constitution. There was no evidence the government had failed to get, or had lost, the confidence of the House of Representatives. Nor did Mr. Chaudhry resign, nor was Parliament dissolved at that stage.
The underpinning foundation for dismissing Mr. Chaudhry under the Constitution was not available. The evidence appropriate for such a draconian move by a Head of State would have to be very different from a vote on the floor of the House.”
Justice Gates declared that, if anything, the petition to the President signed by 46 Members of Parliament seeking restoration of the People’s Coalition Government and calling on the President to summon Parliament as a matter of urgency “Would seem to point incontrovertibly to a continued parliamentary confidence in Mr. Chaudhry as Prime Minister”.
Since the dismissal of Mr. Chaudhry was unlawful, the appointment of Ratu Tevita would similarly be unlawful. There was no evidence that MPs had been canvassed for their opinion on Ratu Tevita’s appointment, Justice Gates said.
Referring to declaratory orders he had issued in the Chandrika Prasad case, Justice Gates admitted he had erred in stating that the President should proceed “to appoint a Prime Minister as soon as possible… who in the President’s opinion can form a government” and has the confidence of the House of Representatives.
“It follows the dismissal of Mr. Chaudhry as Prime Minister was unlawful, and that the appointment of Ratu Tevita Momoedonu as the new prime minister, the dissolution of Parliament, the appointment of Mr. Qarase as caretaker prime minister and the appointment of all the caretaker ministers including the Minister for Sugar were all unlawful steps.”
Justice Gates rejected an earlier High Court ruling by Justice Michael Scott that the President’s actions in 2001, although unconstitutional, were justified under the doctrine of necessity. But Gates maintained there was no necessity: there were several lawful constitutional paths the President could have followed without resorting to “significant contravention of the Constitution”, he said..
He maintained Mr. Qarase’s appointment as interim prime minister was also constitutionally flawed since he was not a member of the House of Representatives as required under Section 98.
“I conclude that there was no dire necessity therefore to veer off the Constitution, to dismiss a Prime Minister and Cabinet unlawfully, to appoint another to dissolve the Parliament that the people had democratically elected.
“If the interests of all the voters were to be considered why were the deposed ministers not included in the caretaker arrangements?”
In determining whether necessity can give rise to the Court’s approval of unlawful action, it was essential so far as possible, to respect the principles of democracy to which Fiji had adhered in its three Constitutions, Justice Gates said.
The exclusion of the People’s Coalition government members from the caretaker administration was undemocratic. By taking such a step, the President had consolidated or strengthened “the usurpation of democracy”.
“The bank robbers were intercepted, if not entirely brought to justice, but the money bags were never returned to the bank”, he said.
Growers Council nominations
In the case of the 8 nominations to the sugar Cane Growers Council:
- the Judge ruled 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 the 8 councillors by the Minister was null and void and of no legal effect