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Zinck v New Labour Unity Party [2001] FJLawRp 116; [2001] 2 FLR 434 (18 December 2001)

KENNETH ZINCK v NEW LABOUR UNITY PARTY, RT MELI VESIKULA, TOMASI TOKALAUVERE & LORRAINE TULELE

High Court Civil Jurisdiction
12, 18 December, 2001 HBC 424/01S

Constitutional law – membership of House of Representatives – political parties – whether expulsion or purported expulsion of member of political party membership has any effect on being a member of the House of Representatives – party discipline – purported expulsion from party by party president – constitutional powers of party - whether unlawful, null and void – whether party had powers and authority – 1997 Constitution s71(1)(h)(ii); 1990 Constitution s43

Originating summons procedure – whether originating notice of motion procedure required - no serious dispute of facts - whether procedure prejudicial to other party - High Court Rules O.2 r.1(3)

The Plaintiff was duly elected to the House of Representatives for the City General Communal Constituency under D1’s party. He altered an approved Memorandum of Understanding with the SDL coalition government and accepted a cabinet portfolio. D1 found his actions a misrepresentation of, and in defiance of, the national executive, and purported to expel him from the party pursuant to a 2 day hearing. The Plaintiff claimed the purported expulsion was null and void for failure of the national executive to discipline him according to its rules. The Plaintiff commenced action by originating summons, seeking determination of issues, among others: (1) that D1 did not have the necessary powers under its constitution to take disciplinary action against the Plaintiff; (2) that the decision to expel the Plaintiff from membership of D1 was ultra vires its constitution; (3) that the expulsion of the Plaintiff by the Defendants was unlawful and null and void and of no effect; (4) that the Plaintiff’s place in the House of Representatives has not become vacant in terms of s71(h) of the 1997 Constitution. The Court found in his favour after examining the requirements of the Constitution and the party’s articles, which failed to provide for a disciplinary procedure prior to the disciplinary proceedings. Although D1 rectified this soon after, the Court found that the party had not learnt its lessons from the Dreunamisimisi case.

Held–(1) The stipulations in section 71(1)(h)(ii) of the 1997 Constitution required strict interpretation in the wider interests of justice. No power to discipline could be inferred from a Party’s articles, and must be in written form. To properly comply with constitutional requirements on both national and Party levels, and to avoid serious prejudice to any member, it is mandatory to have in place, and be accessible to all, written discipline procedures before any disciplinary action may lawfully be taken against any member of the Party. The Plaintiff’s expulsion from his political party was wrong in law because there was no written disciplinary procedures in the party’s constitution, and the party did not follow the provisions of its own disciplinary procedure and s71(1)(h) of the 1997 Constitution. The Plaintiff’s membership of the House of Representatives remains inviolate and intact.

(2) Whether an action should be brought on by an originating summons or an originating notice of motion depends on whether material facts are disputed or not, which would cause prejudice to the other party. Where there are no serious disputes on the facts either procedure was apt to facilitate the efficient disposal of the questions at issue in this case.

Declaration that Plaintiff’s purported expulsion from the First Defendant party was ultra vires, unlawful, null and void and of no effect. Plaintiff retains membership of the House of Representatives. No costs awarded nor order for damages made.

Cases referred to in Judgment
Dawson v Antrobus 17 Ch 615
John v Ress & Others [1969] 2 All ER 274
Kelly v National Society of Operative Printers and Assistants and Others [1915] 31 TLR 632
Lee v The Showmen Guild of Gt Britain [1952] 2 QB 329
McKinnon v Grogan [1974] 1 NSWLR 295
Rt Viliame Dreunamisimisi & Ors v Major General Sitiveni Rabuka &Others CA 38/94
Webster v The Bread Carters Union of NSW [1930 30 SR NSW 269

Samuela Matawalu for the Plaintiff
Ganga P Shankar for the First, Second and Fourth defendants
Tomasi Takalauvere in person (withdrawn with leave)

18 December, 2001 JUDGMENT

Tuivaga, CJ
This is an action by originating summons brought by the Plaintiff against his purported expulsion by his political party, the New Labour Unity Party and 1^st Defendant (hereafter "the Party”). The Plaintiff was the Party candidate in the 2001 General Election for the Suva City General Communal Constituency when he was duly elected to the House of Representatives.

The circumstances and events leading up to and surrounding the decision of the Party to expel the Plaintiff and terminate his membership can be gathered from correspondence exchanged between the Party and the Plaintiff and because of their importance must be referred to in extenso. Thus on September 26, 2001 the Party President, (2^nd Defendant) and the National Secretary, (3^rd Defendant) wrote jointly to the Plaintiff in a letter which was as follows:

"Dear Mr Zinck,

I write to advise you of the collective decision of the National Executive, following its deliberations on the 17^th and the 25^th of September 2001. The Committee, having heard and carefully considered your explanations, unanimously finds that your unilateral actions in altering the original Memorandum of Understanding, (MOU), as collectively approved by the National Executive, and in signing the same as Parliamentary Leader with Mr. Qarase, was a misrepresentation of the Party's clear position on this matter. Your joining of Mr. Qarase's Cabinet on Wednesday 12^th September 2001 was done in defiance of the National Executive. Furthermore, your refusal to comply with the requests of the National Executive to withdraw from Mr. Qarase's Cabinet has compromised the principles and interests of the Party and therefore leaves the National Executive with no choice but to take disciplinary action against you.

In considering the disciplinary avenues available to the Party, you are advised that you could either resign willingly from the Party or face expulsion.

Should you wish to resign, you may do so, before 12 noon on Friday 28^th of September, by written communication to the Party Leader, Dr. Tupeni Baba. If this communication is not in the hands of the Party Leader by 12 noon, Friday 28/9/2001, you are deemed to have been expelled from the Party. This means that you would be automatically disqualified from membership of Parliament in accordance with Section 71 (h) of the 1997 Constitution of the Republic of the Fiji Islands.^”

The Plaintiff replied to the letter on September 28, 2001 in these terms:
“Dear Sir,

Re: Your Letter 26 September, 2001

I have obtained legal advice in respect of the above letter, the party constitution and the 1997 Constitution. Your letter purports to give me two options: resign or be expelled. For the avoidance of doubt, I will not resign because I have been elected to represent my electorate and I will not and cannot betray the trust they have put in me.

It has been noted that section 71(l)(h) of the 1997 Constitution requires that any purported expulsion of a sitting party member must be done “in accordance” with rules of the party relating to party discipline" (section 71(h)(ii)). I have also been referred to Article 8.1 of the Party Constitution which states that "There shall be a discipline procedure governing the behaviour of all members based on the rules to be set up by the National Council with provisions for final appeal to Annual/Special National Convention." I have not been furnished with a copy of these rules set up by the National Council, if any do in fact exist.

I have been advised that in order to analyse my legal options and rights, I must be given a copy of the properly constituted and binding disciplinary procedures and rules as set up by the National Council. I need to provide them to my legal advisors.

However, it has been pointed out by my legal advisors that if no properly constituted and binding disciplinary procedures and rules are in place, the letter of 26 September 2001 and any purported expulsion would, prima facie, be unlawful, null and void.

At present, therefore, my legal counsel has advised that the decision of the National Executive as set out in the letter of 26 September 2001 purporting or deeming to expel me is unlawful and of no legal effect

I believe that the party stands for the principle of reconciliation. This is paramount. It requires that we work and co-operate with all facets of our community, including those with which we disagree. The biggest test of this is when we have to work with parties and people whose policies and principles may be different to our party's. Reconciliation is meaningless if we pick and choose who we will work with.

I have not acted in a manner which offends our paramount principle of reconciliation.^”

On October 1^st, 2001 the 2nd Defendant wrote again to the Plaintiff in a letter under the heading "Your Expulsion”. It reads:

"Dear Sir,

Your letter dated September 28^th 2001 refers.

Whilst there are no specific rules of disciplinary procedures spelt out in our Constitution, you will nevertheless appreciate that your hearing on 17^th and 25^th 2001, adhered to the universal principle that any disciplinary hearing must be fair and an ample opportunity given to the affected party to present his or her case. You appeared and raised no objection to the format of the hearing.

Secondly, the very fact that you actively participated today in the proceedings of the House with the SDL Government and in seconding the motion of the Government in support of the Deputy Speaker of the House, points to the fact that you have effectively crossed the floor and therefore contributed to your own expulsion.

Finally, if you may so choose, you may appeal your expulsion to our Annual or Special National Convention and in this regard you must advise our President in writing within the next seven days.”

From the foregoing correspondence it is clear that the Plaintiff was expelled by the Party on the ground that he disobeyed the decision of the Party that he should not associate himself with the SDL coalition government. When the Plaintiff participated regardless in the government it was viewed as an act of betrayal and defiance of the Party which immediately rendered his membership in the Party wholly untenable.

Despite the heavy pressures exerted on him by the Party to stay out of the government the Plaintiff refused to budge but stood his ground on the basis of his belief that he was acting in the best interest of his constituency and of the principle of national reconciliation. His beliefs prompted him to accept a cabinet post when it was offered to him.

Such is the broad factual scenario upon which these proceedings were instituted.

On October 23, 2001 the Plaintiff filed this action against his expulsion from the Party. The matters on which he seeks the determination of the court are as follows:

"(1) that the First Defendant at the material time did not have the necessary powers under its Constitution to take disciplinary action against the Plaintiff.

(2) that the decision of the First Defendant under the hand of the Second and Fourth Defendants to expel the Plaintiff from membership of the First Defendant was ultra vires its Constitution.

(3) that the expulsion of the Plaintiff by the Defendants was unlawful and therefore null and void and of no effect.

(4) that the place of the Plaintiff in the House of Representatives has not become vacant in terms of Section 71(h) of the Constitution of the Republic of the Fiji Islands.

(5) Damages.

(6) Costs."

Mr. G.P. Shankar objected strongly to the form of procedure adopted by the Plaintiff in this case. According to him the present action should have been brought by originating notice of motion and not by the originating summons procedure. Mr. Shankar claimed that this was a serious breach of procedural rules which entitled the court to dismiss the action. Having carefully considered the matter I do not see any basis to hold that the procedure used in this case was grossly irregular. In the circumstances I would adopt the provisions of Order 2 rule 1(3) of the High Court Rules which provide:

"The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.”

In my view the important consideration is that in the absence of any clear-cut provisions to regulate the hearing of disputes arising under section 71 of the Constitution ("vacation of place of member of Parliament^”) it must be immaterial whether this case was brought on an originating summons or an originating notice of motion. It all depends on whether material facts are disputed or not. Here the basic facts are not disputed so that there can be no sustainable objection to the way these proceedings were brought. There being no serious dispute on the facts either procedure was just as apt to facilitate the efficient disposal of the questions at issue in this case. The bottom line is whether serious prejudice was likely to result to one or other of the parties. It is clear no one would suffer prejudice in this case on procedural grounds. It may be of interest to note that the originating summons procedure was used in the Dreunamisimisi case full reference to which will be given later in another context in this judgment. In the result I see no merit in the objection taken on behalf of the Defendants.

The central question in these proceedings is whether the purported expulsion of the Plaintiff from the Party was lawful or not. This will depend on the question whether at the material time the Party had the necessary powers and authority to the Plaintiff under its disciplinary regime. That question necessarily turns on the true interpretation of section 71(1)(h)(ii) of the 1997 Constitution (hereafter "the Constitution") which provides:

“71(l) The place of a member of the House of Representatives becomes vacant if the member:

(h) is expelled from the political party for which he or she was a candidate at the time he or she was last elected to the House of Representatives and:

(ii) the expulsion was in accordance with rules of the party relating to party discipline;”

It is clear that these provisions require a political party to make rules for the discipline of its members. It is also acknowledged in the Constitution and Rules of the Party (hereafter "the Party Constitution") where Clause 8.1 stipulates:

"There shall be a discipline procedure governing the behaviour of all members based on the rules to be set up by the National Council with provisions for final appeal to the Annual/Special National Convention"

The Party Constitution contains no more than 21 clauses and these are concerned for the most part with the structure and administration of the Party. Under the Party Constitution the Party was formed to promote:

• the aspirations of the people of Fiji for a decent, secure and dignified way of life;

• the recognition by the people of the necessity for a political voice to curb the excess, injustices and inequalities of capitalism;

• the recognition by the people of (the importance of all communities living together peacefully as part of one united nation;

• the commitment by the people to the creation of a free, independent and an enlightened Fiji.

The Party's permanent constituent bodies comprise:

• the Annual National Convention;

• the National Council;

• the National Executive;

• the Regional Councils; and

• the Branch Committees.

Membership of the Party is open to all citizens and residents of Fiji and Rotuma upon payment of an annual fee of two dollars.

The National Council is the governing body of the Party and functions as the supreme authority in between the Annual/Special National Conventions.

The National Council is comprised of the National President, two Vice-Presidents, the National Secretary, an Assistant National Secretary, the National Treasurer, a Party leader who should be either a member of the House of Representatives or of the Senate, two representatives each from the four Regional Councils elected annually by the Annual National Convention two representatives of the Women Wing of the Party elected annually by the Annual National Convention; two Youth representatives elected annually at the Annual National Convention.

Under the Party Constitution administration and management of the affairs of the Party is the responsibility of the National Executive which consists of a Party President, 2 Vice Presidents, the National Secretary and Assistant Secretary, a Treasurer and the Party Leader.

I am grateful for the written and oral submissions presented by both Mr. S. Matawalu for the Plaintiff and Mr. G.P. Shankar for the Defendants which have helped to clarify the competing contentions between the parties in this case. As already noted it is common ground that the material facts in this case are not in dispute. The relevant law has been traversed by Mr. Shankar in his written and oral submissions over which there is also no real dispute. Mr. Matawalu for his part was content to rely on the exposition of the law by Fatiaki J. in his judgment in the case of Ratu Viliame Dreunamisimisi & Others v Major General Sitiveni Rabuka & Others (Civil Action No. 38 of 1994). The case was the first of its kind to deal with the expulsion of members of a political party as a result of disciplinary action. It was a case that was decided under the 1990 Constitution whose provisions on the vacation of seats of members of parliament are markedly different from comparable provisions in the 1997 Constitution (cf section 43 of 1990 Constitution and section 71 of the 1997 Constitution). The Dreunamisimisi case is however important for its citation of authorities which are also pertinent to the present case. For that reason I believe it would be useful to quote even though at length this excerpt from the judgment of Fatiaki J:

"Although I am mindful of the traditional reluctance of the Courts to involve themselves in the internal affairs of clubs, churches and other unincorporated associations, I am nevertheless satisfied that the better and more modern view is that expressed by Megarry J. in John v Rees and Others [1969] 2 All ER 274 when he said in dealing with the internal struggles of an unincorporated political party at p.281:

“I must make explicit what all lawyers will recognise as implicit, but which those who are not lawyers may not fully appreciate. I am not in the least concerned in this case with the rightness or wrongness or the desirability or undesirability of any political views or policies that there may be. This is so whether the views or politics are political in the ordinary external sense.... or whether they are internal politics within the confines of any political or other unit My concern is merely to see that those concerned in these proceedings obtain justice according to law, irrespective of politics.^”

In similar vein Wootten J. discussed the Court's role in McKinnon v Grogan [1974] 1 N.S.WLR 295 in a case involving a football club when he said at p. 298-9:

“I consider that citizens are entitled to look to the Courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions. If it was not forthcoming a vast and growing sector of the lives of people ... will be a legal no-man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations but by deceit, craftiness, arrogant disregard of rights and other means which poison the institutions in which they exist, and destroy trust between members.^”

To the suggestion that questions of membership and the actions of the 'Management Board' in that regard are merely internal affairs of the SVT and therefore outside the proper purview of the Courts, I need only say that the Constitution of the SVT constitutes an enforceable contract between the members of the party and regulates matters between its 'Management Board’ and the members and as with all contracts, is subject to the interpretation of the Court.

Lord Denning in rejecting a similar suggestion in Lee v The Showmen Guild of Gt Britain [1952] 2 QB 329 where a member successfully challenged his expulsion, said at p.344:

'The rules are the contract between the members. The Committee cannot extend their jurisdiction by giving a wrong interpretation to the contract, no matter how honest they may be. They have only such jurisdiction as the contract on its true interpretation confers on them, not what they think it confers. The scope of their jurisdiction is a matter for the Courts, and not for the parties, let alone for one of them.^’

In this case the 'Management Board^’ clearly considered that it had the necessary powers to conduct disciplinary proceedings and terminate the membership of the Plaintiffs in the SVT. The Plaintiffs for their part clearly disagree and it is unfortunate that the 1st Defendants have not sought to justify their actions or indicate where? in the constitution of the SVT such 'powers' (if any) are vested in the 'Management Board' or ought reasonably to be inferred. For my part I confess I can find none nor in my view ought such a power to be inferred.

It has been said that “... a power of expelling a member is a drastic power which in many cases may affect the Plaintiffs livelihood and reputation...” and as such in my view ought not to be inferred except in the most exceptional of circumstances and even then only where a general 'catch all' power would permit it on a fair and liberal reading of the rules.

As long ago as 1881 Jessel M.R. in Dawson v Antrobus 17 Ch. 615 disavowed any inherent power in a club to pass a rule to expel a member when he said at p.621:

“'Now that (the binding nature of the rule) does not depend on the inherent power of a club to pass a rule to expel one or more of its members, I for one am unaware of the existence of such a power, and I was surprised to hear such a proposition put forward. There is no more inherent power in the members of a club to alter their rules so as to expel one of its members against the wishes of the minority, than there is in the members of any society or partnership which is founded on a contract, that written contract of course expressing the terms on which the members associate together; and it is intolerable to imagine that the majority should in such a case claim a inherent power of expelling the minority. I say that because that has been a matter pressed upon me as if capable of argument. I think it is not.^”

Mr. Shankar has submitted strongly that written rules were not a prerequisite for the vesting in the Party the powers and authority such as to enable it to deal with wayward members such as the Plaintiff in this case. Mr. Shankar seemed to have found support for that submission in the remarks made by Fatiaki J. in the Dreunamisimisi case where he said:

"Although the Constitution of the SVT imposed no positive duties of loyalty or obedience upon its members nevertheless It may be properly implied that by virtue of their membership of the SVT party the Plaintiffs agreed that they would obey and comply with the rules of the party and on the part of the SVT party its agreement that, so long as the Plaintiffs complied with the rules and made their contributions according to the rules, and so long as they did not do anything in violation of the rules, they would remain members of the SVT party."

Based on the concept of implied duties of loyalty and obedience binding Party members the Party in this case had proceeded on the basis that it had the necessary powers and authority to take disciplinary action against any of its members subject only to compliance with the rules of natural justice. According to the Party the Plaintiff was given every opportunity pursuant to the principles of natural justice to excuse or justify his action for disobeying the Party directives to which he was bound by virtue of the loyalty and allegiance he owed to the Party. The Party obviously treated the Plaintiff’s act of disobedience as amounting to a disciplinary offence which had to be enquired into and dealt with in the interest of Party stability and solidarity. It was in light of these circumstances that the Party considered itself entitled in law to take disciplinary action against the Plaintiff for offending Party rules resulting in his expulsion from the Party.

Attractive and seemingly logical as the arguments thus presented on behalf of the Defendants the truth of the matter is that the stipulations in section 71(l)(h)(ii) of the Constitution and Clause 8.1 of the Party Constitution required strict interpretation of its provisions in the wider interest of justice. Disciplining a member of a political party who happens to be also a member of parliament is a grave matter that cannot simply be left to be decided on the whims of a few Party officials in total disregard of the legal requirements envisaged under section 71(l)(h)(ii) of the Constitution and Clause 8.1 of the Party Constitution. To properly comply with constitutional requirements on both national and Party levels it was mandatory in my view that written discipline procedures must first be put in place before any disciplinary action may lawfully be taken against any member of the Party. It is a matter of great public importance that disciplinary rules are not only transparent but also accessible to all members of the Party. This is essential to avoid serious prejudice to any member facing disciplinary proceedings. This to be the thinking behind what was said by Swinfen Eady L.J. in Kelly v National Society of Operative Printers and Assistants and Others [1915] 31 TLR 632 at p.633:

“A power to expel would not be implied; it must be found in the rules in plain and unambiguous language. Indeed there is no inherent power in any club or society to alter its rules so as to introduce such a power."

Similarly in Webster v The Bread Carters Union of NSW [1930 30 SR. NSW 269 Long Innes J. summed up the relevant legal principles when he said at p.272:

“It is also established by a long line of authorities, ... that an association such as the Defendant union in this case has no common law right of expulsion, either by vote in general meeting or by action of its executive officers.^”

When the Party Constitution was drafted it seems that the lessons of the Dreunamisimisi case were not fully taken into account. This is obvious from the rather slapdash approach taken to the purported disciplinary action to which the Plaintiff was subjected. Be that as it may it is interesting to note that after this action was instituted the Party made some effort to give effect to the provisions of section 71(l)(h)(ii) of the Constitution and Clause 8.1 of the Party Constitution. Reference may be made to the affidavit of the 2^nd Defendant which was filed as recently as December 11, 2001 and where he deposes to the fact that a written Discipline Procedure was passed and approved by the National Council of the Party on November 11, 2001. Such action might well be viewed as an implied acceptance by the Party about its own lack of powers and authority to expel the Plaintiff at the material time. In any event the fundamental error of the Party as I see it was its failure to follow the rule of law governing disciplinary matters within the Party. In these circumstances the conclusion is irresistible that the Party was not legally vested with any powers or authority to lawfully expel the Plaintiff from the Party. In my judgment the purported expulsion of the Plaintiff from the Party was ultra vires and therefore unlawful. That is to say the purported expulsion of the Plaintiff was null and void and of no effect.

If I may say so with respect I find the Party's complaint about the Plaintiff’s participation in Prime Minister Qarase's coalition government as somewhat surprising given the fact that under the Party Constitution two of the main aims of the Party advocated –

• the recognition by the people of the importance of all communities living together peacefully as part of one united nation; and

• the commitment of the people to the creation of a free, independent and an enlightened Fiji.

Furthermore it seems to me that the Plaintiff’s approach to his parliamentary responsibilities was consistent with the concept of multi-party government which is being fostered by the Constitution. While it is not my place to say so I cannot but help thinking that it was perhaps unfortunate that the Party was not able to conceive for itself a larger role in the vital task of nation building for a country that desperately needs it.

For the reasons I have given I find the Plaintiff’s purported expulsion from the Party was wrong in law and cannot be sustained. The result is that the membership of the Plaintiff in the House of Representatives remains inviolate and intact under the Constitution.

In the interest of internal reconciliation and good fellowship within the Party I make no order as to costs nor any order for damages.

Declaration granted.

Marie Chan