| Fiji Islands - The State v The Minister for Commerce, Industry, Co-Operatives & Public Enterprises - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
<
JUDICIAL REVIEW NO. HBJ 0020 OF 1999
BETW/p>:
STATE
Applicant
AND:
MINISTER FOR COMMERCE, INDUSTr> CO-OPERATIVES AND PUBLIC ENTERPRISES
Respondents
Counsel: Mr : Mr Vuetaki/Ms Vuibau for Applicant
Mr S. Kumar for Respondents
Hearing: 6th July 1999
Decision: 16th July 1999
This is an application for Leave to apply fply for Judicial Review under Order 53 Rule 3(2) of the High Court Rules.
The Applicant was, until April 20th 1999, a Board member of the Civil Aviation Authority of Fiji. He had been a member of the Board for six years and had been re-appointed
under the Public Enterprises Act, by the Minister for Commerce, Industry, Co-operatives and Public Enterprises.
On April 13th 1999 the Supervisor of Elections announced the list of candidates for the 1999 General Elections. On April 20th of the same year, the Minister for Commerce, Industry, Co-operatives and Public Enterprises wrote to the applicant terminating his
appointment as a board member of the Authority. The full text of the letter is annexed at "SL1" to the Applicant’s
affidavit. In that letter the Minister wrote:
"I have been advised by the Honourable David Pickering, Minister for Tourism and Transport that your appointment as a board member
of the Civil Aviation Authority of the Fiji Islands be terminated forthwith, since you have now declared your intention to stand
as a candidate in the forthcoming General Election.
It is a well-established understanding that an important criteria for appointment to Government Boards is political neutrality.
Under the circumstances, I wish to inform you that your appointment as a board member of the Civil Aviation Authority of Fiji under
Section 32(2) of the Public Enterprise Act 1996 will cease with effect from 20th April 1999.
I would like to take this opportunity to thank you for your very valuable contribution to the board of the Civil Aviation Authority
of Fiji and to the public enterprise reform programme."
Application for leave to judicially review the decision of the Minister was filed on 30th April 1999. The Court ordered that the application be heard inter-partes. The relief sought by the Applicant was:
(a) Certiorari to quash the decision of the Minister;
(b) Declaration that the decision was unfair;
(c) Declaration that the decision was ultra vires, null and void;
(d) Stay of the decision;
(e) Injunction to restrain the enforcement of the decision;
(f) Costs.
The grounds for the relief sought were firstly that the Applicant was not given his rights of natural justice before being terminated
by the Minister, that the Applicant had a constitutional right to stand for the elections without penalty, that the Applicant was
unfairly treated because of his political affiliations, that the Minister had erred as to his powers under the Civil Aviation Act and the Public Enterprises Act, that the Minister had impinged unjustly, on the Applicant’s rights, and that the decision had
adversely affected the Applicant’s legitimate expectations which went with the appointments.
On 12th May 1999 the Respondent filed a Notice of Objection. The grounds were:
(a) that the application lacked merit; and
(b) that the Applicant’s appointment was properly terminated under Section 32(2) of the Public Enterprises Act No. 35/96.
On 22nd June 1999, the Respondent filed the affidavit of Olipani Baba, the Acting Director of Civil Aviation.
The crux of this affidavit is that the Minister had powers to terminate the appointment under the Public Enterprises Act, that political
neutrality an important consideration in the selection of Board members of statutory authorities and that another Board Member Adi
Makelesi Lutuciri, who also became a candidate in the Elections, would have been terminated also, if she had not voluntarily resigned
on 29th April 1999.
Submissions were heard from counsel on 6th July 1999. During these submissions, Ms Vuibau for the Applicant informed the court that the reinstatement of the Applicant had now
become an academic exercise, and that she wished to withdraw grounds of relief (d) and (e) of the Application.
Ms Vuibau made both oral and written submissions. She submitted that the Applicant had a right to have political affiliations and
that whilst his appointment was deemed to have lapsed on nomination day, the Minister should have given him the opportunity to step
down voluntarily. She argued that prior to nomination day, political neutrality was an irrelevant consideration, and that the Applicant
had been treated unfairly. In response to the Court’s enquiry as to the point of application, if the Applicant is not to be
considered for reinstatement, Ms Vuibau responded that the quashing of the decision to terminate would restore the Applicant’s
reputation and character.
In response Mr Kumar for the Respondent argued that the Applicant had not shown that he had a right to be heard before his appointment
was terminated. He submitted that since nomination day was 13th April 1999, the Minister acted lawfully in informing the Applicant that he was no longer on the Board on 20th April, 7 days after nomination day. He submitted (although this was not contained in the affidavit of Olipani Baba) that Adi Makelesi
Lutuciri must have told Mr Baba that she was about to resign before 29th April. He argued that since the affidavit of the Applicant does not disclose his political affiliations, he could not argue that
he was being unfairly treated because of those affiliations.
Finally Mr Kumar submitted that the application should be dismissed because it was an academic exercise only, and because the Applicant
had not disclosed all relevant information.
I am grateful for the submissions of both counsel and for the authorities they referred to in the course of argument.
At leave stage, the court must consider whether, on the material before it, there is an arguable case in favour of the relief sought
(Fiji Airline Pilots’ Association -v- Permanent Secretary for Labour & Industrial Relations (Civil Appeal No. HBU 0059U of 1997). In this case the Applicant seeks a declaration that the Minister’s decision to terminate
his appointment was ultra vires, and certiorari to quash the decision. He does not seek a re-visiting of the decision. He is concerned
with restoring his reputation by the quashing of the termination. The main thrust of his application is that another Board member
was allowed to resign whereas he had been terminated.
Section 32(2) of the Public Enterprise Act No. 35 of 1996 provides:
"The Public Enterprise Minister, after consulting the relevant Minister, may remove members of the Board of a Re-organisation
Enterprise, whether or not the Board has been re-appointed under Section 31".
It was this provision that the Minister purported to apply in removing the Applicant from the Board. However the question of whether
or not such removal was limited to re-structuring, and whether or not political neutrality is a relevant matter in the appointment
and removal of Board members, became largely taken over by the concession that the Applicant was a candidate in the 1999 elections.
Section 67(1) of the Constitution (1998) provides:-
"A person who holds a public office is deemed to have vacated that office immediately before the time at which his or her signed
nomination as a candidate for election to the House of Representatives is delivered to the relevant returning officer."
The Applicant’s application does not disclose the date of such returns. However it does disclose the date the list of candidates
was forwarded to Registered Political Parties. Nor does the application disclose whether the Applicant was in fact standing as a
candidate and for which political party.
In the circumstances, it is difficult for the court to conclude that the Applicant has an arguable case to justify the grant of leave
on the ground that he was victimised for his political views. Nor can the contention that political neutrality is an irrelevant consideration,
hold water when the purpose of section 67 of the Constitution is to recognise this important principle. Whilst the Applicant argues
a right to have political affiliations, the fact is that by April 20th 1999, he had declared his intention not merely to affiliate, but to stand as a candidate in the elections. This is not disputed by
the Applicant. There is an undoubted difference between holding personal political views, and declaring one’s political affiliations
publicly, by standing as a candidate.
Furthermore, the Applicant’s contention that Adi Makelesi Lutuciri was differently treated, does not in my view, provide grounds
for an arguable case. Whilst I reject Mr Kumar’s submission that Adi Makelesi must have informed Mr Baba of her intention to
resign, since this is not contained in the affidavit, I find that a lapse of nine days between the Applicant’s termination letter
and Adi Makelesi’s resignation letter provides insufficient ground on which leave should be granted to hear the substantive
application.
Furthermore, I find that leave should be refused because the application is bound to fail and because the Applicant is no longer seeking
reinstatement on the Board. There appears to be little practical purpose in allowing this judicial review application. In Ainsbury -v- Millington (1987) 1 WLR 379 Lord Bridge of Harwich said at p 381:
"It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them;
they do not pronounce on abstract questions of law when there is no dispute to be resolved."
Finally since the Applicant was deemed to have vacated his post as Board Member on nomination day, I find no substance in his argument
that he was entitled to natural justice before he vacated that office.
For these reasons I find that the Applicant has failed to show an arguable case to justify the grant of leave and I refuse it accordingly.
I make no order for costs.
Nazhat Shameem, Ms
JUDGE
At Suva
12th July 1999
HBJ 0020J.99S
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