IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0006R OF 2005S

BETWEEN:

RATU RAKUITA VAKALALABURE of
Korovou Goal, Suva, Member of Parliament and Deputy Speaker of the House of
Representatives.
PLAINTIFF

AND:

RATU EPELI NAILATIKAU of Parliament
House, Veiuto, Suva.
1ST DEFENDANT

THE SUPERVISOR OF ELECTIONS,
Elections Office, Suva.
2ND DEFENDANT

THE ATTORNEY-GENERAL OF FIJI of Level 7 Suvavou House.
3RD DEFENDANT

Counsel for the Plaintiff: K. Maraiwai: Messrs Maraiwai Law
Counsel for the Defendants: J. J. Udit:) Attorney-General’s
E. Tuiloma:) Chambers

Date of Ruling: 20 May, 2005
Time of Ruling: 9.30 a.m.

RULING

The plaintiff was elected to the House of Representative of the Fiji Parliament, representing the Cakaudrove West Fijian Provincial Communal Constituency in the General Elections held in September 2001. The term of the House of Representatives is for 5 years unless sooner dissolved (Section 59 of the Constitution). The plaintiff was also, following the elections, elected as Deputy Speaker of the House. On 6 August 2004, the plaintiff was convicted in the High Court at Suva for 4 offences under the Penal Code and sentenced to imprisonment for a term of 6 years. His appeal against conviction to the Fiji Court of Appeal in September 2004 was dismissed. His appeal to the Supreme Court is presently awaiting hearing.

On 3 December 2004 the 1st Defendant, the Speaker of the House of Representatives, announced to the House that he has decided that the seat held by the plaintiff has become vacant on the ground of the plaintiff’s absence from two (2) consecutive meetings of the House. The 1st defendant relied on the provisions of section 71 (1) (e) of the Constitution. His decision was subsequently conveyed by letters to the plaintiff and His Excellency the President of even date.

On 11 January 2005, the plaintiff by Originating Summons, sought the following Declarations and Order of this Court:

" 1.	A DECLARATION that the First Defendant had erred and was wrong to have prematurely terminated and vacated the Plaintiff’s seat in Parliament as a Member and Deputy Speaker considering the fact that the Plaintiff has not exhausted all avenues of appeal against his conviction and sentence available to him under the law;

A DECLARATION that the First Defendant’s recent announcement that the Plaintiff’s membership of Parliament has lapsed to be declared null and void by virtue of the fact that at the time of the Plaintiff’s initial conviction and sentence on 6th August, 2004, the First Defendant had subsequently declared to the Nation that the issue of the Plaintiff’s membership of Parliament would not lapse until he has exhausted all avenues of appeals in Court available to him as of right;

A DECLARATION that the First Defendant’s recent announcement of the termination and vacation of the Plaintiff’s membership of Parliament, after he initially announced, immediately and subsequently, to the Plaintiff’s conviction in August, 2004, that the Plaintiff’s status as a member of Parliament would come into play after the Plaintiff has exhausted all avenues of appeal, was highly discriminatory, wrong, unfair and prejudicial to the Plaintiff’s constitutional right to have a fair trial inclusive of exhausting all avenues of appeal available to the Plaintiff under the law;

A DECLARATION that the issue of termination and vacation of the Plaintiff’s membership of Parliament through missing two consecutive sessions of Parliament under section 71 (1) (e) of the Constitution of Fiji 1997 should come into play only after a negative outcome of the Plaintiff’s last and final appeal to the Supreme Court of Fiji which the Plaintiff has recently filed, has been decided and adjudged;

AN ORDER that the Plaintiff be reinstated as Member of Parliament until he has exhausted all avenues of appeal available to him;

AN ORDER that the 1st Defendant’s call and intention that a by-election to be held in May of 2005 or thereafter for the Plaintiff’s seat be stayed until the Plaintiff has exhausted all avenues of appeal available to him towards his appeal against his conviction and sentence;

AN ORDER that the 2nd Defendant be stayed from instituting any Writ of Election for a by-election for the Plaintiff’s seat "deemed" to be vacated by the 1st Defendant until the Plaintiff has exhausted all avenues of appeal available to him against his conviction and sentence."

Acknowledgement of service of the Summons and the affidavit in support were filed by the defendant’s on 3 February 2005 with the intention of contesting the proceedings. 

On 4 March 2005 the defendants applied through their Summons to Strike Out the action on the grounds that it discloses no reasonable Cause of action, that it is scandalous, frivolous and vexatious, and it is an abuse of the process of the Court. The application is made pursuant to Order 18 rule 18 (1) (a) (b) and (d) of the High Court Rules.

The Law on Striking Out

This is governed by O.18 r.18. It is a Summary process. A Court may only entertain an application under it if it can clearly be seen that the claim or defence is on the face of it obviously unsustainable. Lindley L.J. in Attorney-General of the Duchy of Lancaster v. London and North-Western Railway Co. {1892} 3 Ch. 274 said of Order XXV r.4, the equivalent of our O.18 r.18, as follows:

"It appears to me that the object of the rule is to stop cases which ought not to be launched – cases which are obviously frivolous or vexatious, or obviously unsustainable."

Lopes L.J., in the same case added, at p. 277:

"The object of the rule was to get rid of frivolous actions. The words of the rules are "action or defence for which there was no reasonable cause," by which I understand, no reasonable cause disclosed upon the face of the pleadings."

In Nagle v. Feilden {1966} 2QB 633, Danckwarts L.J. said of the O.18 r.18 application, at p. 648:

"The summary remedy which has been applied to this action is one which is only to be applied in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process of the Court."

And Salmon L.J. added, at p. 651:

"It is well settled that the statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable."

It is plain that the Courts have been most anxious to protect the right of the plaintiff to prosecute his case and not to be ""driven from the judgment seat" except where the cause of action is bad and cannot possibly be sustained. The reason is best explained by Fletcher Moulton L.J. in Dyson v. Attorney-General [1911] 1 KB 410, at p. 419:

"Differences of law, just as differences of fact, are normally to be decided by trial after hearing in Court, and not to be refused a hearing in Court by an order of the judge in chambers. Nothing more clearly indicates this to be the intention of the rule than the fact that the plaintiff has no appeal as of right from the decision of the judge in chambers in the case of such an order as this. So far as the rules are concerned, an action may be stopped by this procedure without the question of its justiciability ever being brought before the Court."

On the other hand it has always been understood, even at common law, that the Court had inherently in its power the right to see that its process is not abused by a proceeding without a reasonable ground. Some cases for instance, are so hopeless because of the plaintiffs’ failure to establish want of reasonable cause of action, that to allow it to proceed would only result in wasted time and money to the parties. As Lord Blackburn said in Metropolitan Bank v. Pooley (1885) 10 App. Case. 210, at 221:

" It is obvious to my mind that as regards both that which was done under the common law jurisdiction of the Court and that which may be done under the more extensive jurisdiction now given to the Courts, although it should not be lightly done, yet it may often be required by the very essence of justice to be done."

Lawton L.J in Riches v. Director of Public Prosecutions {1973} 1 WLR 1019 at 1027 said,

"It would be contrary to the public interest that justice should be shackled by rules of procedure when the shackles will fall to the ground the moment the uncontested facts appear … …"

As far as Fiji’s jurisdiction is concerned sub-paragraphs (a), (b), (c) and (d) of O.18 r.18 (1) represent categories of defects in a claim or in a cause of action and provide the grounds upon which an application to strike out can be made. The rule specify as follows:

" 18 – (1)	The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any Writ in the action, or anything in any pleading or in the endorsement, on the ground that –

a)	it discloses no reasonable cause of action or defence, as the case may be; or

b)	it is scandalous, frivolous or vexatious; or

c)	it may prejudice, embarrass or delay the fair trial of the action; or

d)	it is otherwise an abuse of the process of the Court; and may order the action to be stayed or dismissed or judgment to be entered according, as the case may be."

In this instance the defendants rely on Sub-paragraphs (a) (b) and (d) and in the inherent jurisdiction of the Court. Defendants’ Counsel submitted the following arguments in support:

1)	Non-justiciability of the Parliamentary proceedings; and

2)	1st Defendant’s action in accordance with the Constitution.

The Issue of Non-Justiciability

Clive Lewis in his publication, "Judicial Remedies in Public Law" (2nd Ed; 2000: Sweet & Maxwell) on the meaning of justiciability, says, at para. 4 – 078:

"Certain exercise of power may not be reviewable by the Courts because they do not raise justiciable issues. Underlying the concept of justiciability is the idea that certain issues raise questions with which the judicial process is not equipped to deal. The concept of justiciability is not clearly defined in English public law and issues of justiciability overlap with other reasons for justicial restraint, such as the extent to which the Courts consider judicial intervention appropriate."

The jurisdiction of the Courts therefore is not all embracing. The exercise of certain prerogative powers and issues involving for example, national security and those that involve "essentially political judgments, such as grant of honours, dissolution of Parliament and the appointment of ministers are thought to be non-justiable" (dicta of Lord Roskill in Council of Civil Unions v. Minister for Civil Service {1985} AC 374 AT 418). Also included in such a category is the internal proceedings of Parliament.

Whether Internal Proceedings of Parliament is Justiciable

The English common law have long since held that the Court has no jurisdiction to enquire into the internal proceedings of Parliament. The leading authority is Bradlaugh v. Gosset [1884] 12 QBD 271 where the Court held:

"The House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute-law which has relations to its internal procedure only. What is said and done within its walls cannot be inquired into in a Court of law."

Subsequent decisions, including R v. The Secretary of State for Trade & Or. Exp. Anderson {1993] 2 All ER 233 and Hamilton v. Al Fayed [1999] 4 LRC 419, have firmly established the principle enunciated in Bradlaugh v. Gosset (supra). In addition, statute law has now given due recognition to it.

Does the same apply to Fiji? The Fiji Court of Appeal in James Madhavan v. John Neil Falvey & Or. (1973) FLR Vol. 19, 140 and this Court in Sakeasi Butadroka v. Attorney-General (1993) FLR Vol. 39, 115 have confirmed without any doubt the statutory and legal grounds of the application of the English Courts’ pronouncements to Fiji. I do not think it necessary to re-state them here. It is enough to summarise, that the Courts’ acceptance of the principle of the exclusive right of Parliament to control its own internal proceedings is through the combined effect of the interpretation of section 74 of the Constitution, section 28 of the Parliamentary Powers and Privileges Act (Cap. 5), and section 22 of the Supreme Court (now High Court) Act (Cap. 13).

Speaker’s Decision to Exclude A Sitting Member

The Speaker’s decision that is being challenged by the Plaintiff was made pursuant to section 71 (1) (e) of the Constitution which says that:

"The place of a member of the House of Representatives becomes vacant if he is absent from 2 consecutive meetings of the House of Representatives without having obtained the permission of the Speaker to be absent."

In his statement to the House on 3 December 2004 explaining his decision to declare the Plaintiff’s seat vacant, the Speaker defined the two "Meetings" from which the Plaintiff was absent without permission as follows (Uncorrected Hansard):

"Honourable Members, the two meetings that he has missed are the ones held from Mon. 27 September to Friday 8th October and this current meeting which began on Monday, 15th November and is about to end today, Friday 3rd December."

These same facts were conveyed in the Speaker’s letter to the Plaintiff. In the same letter, after reviewing the previous applications under section 71 (1) (e) and the circumstances of the Plaintiff, the Speaker concluded:

"The request for permission for further leave of absence from the House of Representatives is therefore denied. I will also be issuing a gazette notice to the effect that the seat for the Cakaudrove West Fijian Provincial Constituency is now vacant in accordance with section 41 of the Electoral Act and I will also be duly advising His Excellency the President of this."

The Plaintiff does not dispute that he was absent from "2 consecutive meetings" of the House. Neither does he challenge the discretionary powers of the Speaker to grant or not grant permission to be absent after the 2 consecutive meetings. What he through his Counsel is arguing, is that the Speaker’s discretion should have taken into consideration that his final appeal to clear his name is still to be heard and under the circumstances it was clearly wrong to make the decision of 3 December 2004 and declare the Plaintiff’s seat vacant. The Plaintiff, in support of this contention referred to the Speaker’s earlier statement of 13 August 2004 in which he had informed the House that the Plaintiff was still a Member of the House albeit, a suspended member.

In the Court’s view, the Speaker’s ruling on the vacancy of the Plaintiff’s seat as well as the earlier interim decision on the status of the Plaintiff, are matters that arise in the course of the proceedings in the House. As such, they are internal matters, and they are by law and by convention, not subject to the Court’s jurisdiction.

Arguments is made by Counsel for the Plaintiff that the Speaker’s decision to exclude him from further sitting of Parliament and declare vacant his seat does not represent the internal proceedings of the House per se, but the exercise of powers pursuant to Constitutional provisions. As such there is no immunity from the Court’s jurisdiction to review whether the decision breached the Applicant’s Constitutional rights. I shall revert to this argument later, but first as to why the Court believes that the decision of the Speaker was an internal matter of the House.

Section 74 (5) of the Constitution gives the House of Representatives power to regulate its own proceedings. This is represented by the "Standing Orders," a body of rules that regulates the order and conduct of the House of Representatives business and proceedings. Standing Orders 1 of the House recognises this sponsorship in stating that:

"These Standing Orders are made by the House of Representatives for the order and conduct of its business and proceedings pursuant to section 74 (5) of the Constitution."

There are in addition statute law that supplement these rules, including the provisions of the Constitution. For example, section 68 (sessions of Parliament) section 70 (quorum), section 80 (offices of the Speaker and Deputy Speaker) of the Constitution have been adopted and have become part of the internal proceedings of the House of Representative. The same is true of the provisions of the Parliamentary Powers and Privileges Act. The Court believes that they do not have to be specifically adopted or referred to in the "Standing Orders." There is a presumption that they are intended to form part of the body of rules that regulates the conduct of the business of the House. This must necessarily be so if they impact on any aspects of the proceedings in the House, and have as their primary purpose, the orderly conduct of business of the Parliament. And so it is in the instance where and when the Speaker’s decision is made pursuant to S.71 (1) (e) of the Constitution. The exercise of the power to declare vacation of seats under these provisions are essentially the invocation of the internal procedures of the House given it by the Constitution. It is an action or conduct which relates to the management of the proceedings in the House.

There remains however the question of whether all internal proceedings of Parliament are non-justiciable. As far as Fiji is concerned, the law is as laid down in James Madhavan v. John Neil Falvey & Ors. (supra) which held that "The privilege of the House to control its own internal proceedings had become part of the law of Fiji unless the Constitution otherwise required." Specifically the Court said, at p.148:

"The Constitution is, by Article 2 thereof, the supreme law, and to any extent that the Parliamentary privilege was inconsistent with it, but only to that extent, the privilege would be void."

Article 2 of the then 1970 Constitution is synonymous with Section 2 of the present Constitution.

The privilege therefore is and remains subject to the Constitution, which is the supreme law of the land. In Madhavan’s case the issue revolved around the appointments to the offices of the Speaker and Deputy Speaker and the transaction of business. In such matters, the basic requirements that the Speaker, Deputy Speaker or elected member presides over the House is a constitutional requirement. If for example, there were business transacted in a sitting of the House presided over by anyone other than those authorised by the provisions of the Constitution, then it is properly a matter that can be brought before the Court, to decide whether there has been a contravention. It is a different matter where the issue is, as in Madhavan case, which of the persons qualified, should preside over the sitting. In such case, the issue is essentially one of internal procedure, which the Court does not exercise any jurisdiction over.

The Plaintiff in this case alleges that the action of the Speaker has deprived him of his fundamental right to a fair trial under section 29 (1) of the Constitution. Counsel argued that this includes the right of the Plaintiff to exhaust all appeals avenue to clear his conviction, while he remains a member of the House of Representatives.

The argument of the paramountcy of the fundamental rights of the individual over the internal proceedings of Parliament was extensively canvassed in the case of Sakeasi Butadroka v. Attorney-General (supra). In that case the Court was dealing with Chapter 2 of the 1990 Constitution, the equivalent of Chapter 4 (Bill of Rights) of the new Constitution. The Court after having examined the law since the Madhavan case and its interpretation of section 63 of the Constitution, concluded, at p. 33:

"I think that Mr Cope’s submission that Madhavan’s case has established that the general provisions of Chapter 2, do not apply to the internal proceedings of the House of Representatives, and those proceedings are only subject to the Constitution where it specifically provides for the internal proceedings of the House, is a sound analysis."

The Court added that to argue otherwise, that is, to subject the internal proceedings of the House to Chapter 2, would result in such proceedings being,

"… …	open to investigation by the High Court everytime a member alleged that the authority of the House, its Committees or its Officers had violated those provisions either in the manner of the application of Standing Orders themselves, or in any ultimate sanction imposed under them. This could lead to every aggrieved member of the House who had been silenced, suspended or otherwise dealt with under Standing Orders alleging breach of his fundamental freedoms under Chapter 2 and seeking to have the High Court adjudicate on the internal proceedings of the House that give rise to the complaint. Clearly such an occurrence would neither be desirable nor in the best interest of the Parliament."

This interpretation was firmly endorsed by the Court in Anand Babla v. Devakar Prasad & Attorney-General 1998 FLR (Vol. 44) 184.

This Court is in full agreement with the views expressed above. Important as they are, the individual’s fundamental rights can never be absolute. They have to be interpreted subject to the limitations provided specifically under Chapter 4 provisions or in the general context of any enactment as recognised under section 21 (4) of the Constitution. The unfettered freedom given to Parliament to control and regulate its own proceedings would be jeopardised if this Court were to now say that it can scrutinise its decision-making processes in furtherance of a member’s claim that his rights under Chapter 4 of the Constitution have been violated. Parliament must be permitted to conduct its business in an efficient manner as possible. As Coleridge J. stated in Stockdale v. Hansard (1839) 9 Ad KE1, 113 at p. 233,

"That the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules or derogation from its dignity, stands upon the clearest ground of necessity."

Lord Denman C.J at p. 149 said:

"The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive absolute "parliamentary" or "legislative" jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, Courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body."

In the end, the position is that howsoever the Parliament exercises its privilege in regulating its own internal concerns, no consequence can come to and be entertained by the Court, subject of course to the provisions of the Constitution which specifically provide for the regulation of any or its specific proceedings. We must presume that Parliament, in regulating its own internal proceedings including decisions that ensue, it is discharging its functions properly and with due regards to the law of which it is after all, its primary source.

The Constitution

The Defendants have also argued that the Speaker’s action was in any case, in accordance with the requirements of the Constitution. In particular, the combined operations of section 71 (1) (c), with section 55 (8) (a) and section 83 (12) of the Constitution, Counsel for the Defendants argued, justified the Speaker’s action.

I do not think it necessary for the Court to deal with this second ground. The Plaintiff’s Summons had sought certain declarations on the Speaker’s decision of 3 December 2004 to declare his seat vacant, on the ground that he the Plaintiff has not exhausted all the legal processes to clear his name. The Plaintiff has not sought a declaration that the decision was wrong in law per se. The decision is in fact the exercise of discretionary powers vested in the Speaker pursuant to a Constitutional provision.

The Speaker based his decision on section 71 (1) (e) of the Constitution, which this Court has decided, involved the exercise of his discretion, namely whether to grant further extension to the Plaintiff’s absence. The process furthermore belongs to those categories of internal proceedings of the House which the Court finds is non-justiciable. On this ground alone, the Court must rule in favour of the Defendants’ Summons.

It could very well be the case that the Speaker’s decision may be also based on other provisions of the Constitution that would lend it more support and justification. These matters however have not been specifically referred to by the Speaker in his letter, nor by the Plaintiff in his pleadings. All that is before this Court is to do with the Speaker’s decision not to grant an extension of absence to the Plaintiff. Once it is found that this decision cannot be reviewed in a Court of law than the question whether there was proper application of the law, does not arise. The Court will not go behind the decision. The general rule is that while the Courts will inquire into the existence and extent of the privilege, it may not do so as to its exercise.

In the final analysis, what is most important, notwithstanding the unfettered freedom enjoyed by the House, is that the regulation of its own proceedings including decision-making, remain transparent and in accordance with its own Standing Orders. In this respect, it would seem to this Court, that the most important provisions in the exercise of its powers and privileges, are those contained in Standing Orders 2.

In the end this Court is satisfied that the Plaintiff’s application is without merit. The Plaintiff’s Originating Summons is hereby Struck Out on the ground that it discloses no reasonable course of action.

I make no order as to costs.

F. Jitoko
JUDGE

At Suva
20 May 2005