ATTORNEY GENERAL OF FIJI AND ANOTHER V MARIKA VUKI SILIMAIBAU AND ANOTHER
[2004] FJCA 17
BY SURUJ SHARMA*
This is an appeal heard by the Fiji Court of Appeal in its most recent session on 17 March 2004. The decision, which was delivered just two days later is rather short when one compares it to other cases where constitutional issues are raised and decided. The case is unreported at present and no appeal has been filed challenging this decision.
HISTORY OF PROCEEDINGS
In the Sugar Cane Growers Council Triennial Elections in the year 2001, the Second Respondent National Farmers Union (NFU) gained 21 seats and its rival the Growers Association 16 seats. An independent candidate also won a seat. In exercise of his powers under the Sugar Industry Amendment Decree 1992 the Minister of Sugar Industry who is the Second Appellant in this Appeal appointed 8 more members to the Council. The Honorable Minister’s appointees included 3 unsuccessful candidates from the Growers Association who were actually not elected in the Triennial elections. There were none from the NFU. The appointment of these 8 members resulted in the NFU losing control of the Council, which in the immediate past it has always done so.
On 30 May 2001 proceedings were filed by the Respondents in the High Court at Suva seeking to challenge the nomination by the Sugar Industry Minister in the Caretaker Government of Honorable Laisenia Qarase of 8 persons as members of the Sugar Cane Growers Council. The appointments were made on 8 May 2001 by the Minister Mr. Kaliopate Tavola in exercise of his powers under the Sugar Industry (Amendment) Decree 1992. 
It is to be noted that although this Decree was issued by the Caretaker Government of Sitiveni Rabuka, no challenge had previously been made in the Courts of Fiji as to its validity. From the facts set out in this case it is unclear whether appointments were previously made under this Decree. This however was not the first occasion on which the power to appoint had been exercised by the Honorable Minister. Be that as it may, the points in issue have at their base the constitutional question of the validity of the Caretaker Government of Laisenia Qarase which has been the subject of discussion in several decisions starting from the celebrated case of Chandrika Prasad v Republic of Fiji. [2001] 1LRC 665; [2001] NZAR21.
Although these proceedings were initially begun by an originating summons, it appears that a Notice of Motion pursuant to the High Court (Constitutional Redress) Rules 1998 was later issued.  The relief sought was for declarations. His Lordship Mr. Justice Gates, granted the remedies prayed for although the Order was made after some 2 years from the date of the commencement of the proceedings. His Lordship framed the orders as follows:
1.                  The purported appointments of the Minister for Sugar [and the Acting Minister for Sugar] are null and void and contrary to the provisions of the 1997 Constitution.
2.                  The Sugar Industry (Amendment) Decree 1992 is invalid and of no legal effect.
3.                  The exercise of powers by the purported Minister for Sugar in nominating 8 members to the Sugar Cane Growers Council is null and void and of no effect.
In making his decision His Lordship revisited some of the events following the May 2000 Coup and took cognizance of matters and pronouncements made by the Courts in the following decisions:
(a)                Republic of Fiji & Ano v Prasad [2001]  NZAR 385
(b)               Koroi v Commissioner of Inland Revenue [2003] NZAR 18 
He also relied on the following decisions of other Local High Court Judges in arriving at his finding:
(a)                Akuila Yabaki & Seven Others v The President (Unreported) Suva High Court HBC119.01S; 11July 2001.
(b)               Audie Pickering v State (Suva High Court Criminal Appeal)
(c)                Tropic Wood Industries Ltd v Apenisa Balewakula & three Others [Unreported] Lautoka High Court Civil Action HBC 158.97L 4 October 2002.
In addition to the above cases His Lordship also referred to the following decisions:
(a)                Adegbenro v Akintola [1963] AC 614
(b)               Simpson v AG [1955] NZLR 271
(c)                Pakistan Petition Case [Per I H Khan CJ]
(d)               Clayton v Heffron [1961] 105 CLR 214
(e)                Mitchell v DPP [1986] LRC (Const) 35 at 88 
(f)                 Madzimbamuto v Lardner-Burke [1969] 1AC 645
His Lordship went at length to discuss the appointment of the caretaker government of Laisenia Qarase and in conclusion was not satisfied that the appointment was appropriately made (as per provisions of the 1997 Constitution) after the resignation of Ratu Tevita Momoedonu. He even found Momoedonu’s appointment to be suspect based on the premise that (former Prime Minister) Mahendra Chaudhary’s dismissal was unlawful. On this ground the replacement would have been similarly flawed. He therefore ruled that the Minister’s appointment was invalid in itself and that the Sugar Industry (Amendment) Decree 1992 was also an invalid legislation. 
Although in the appeal papers the Appellants had filed challenge to each of the above three declarations, at the hearing they did not wish to proceed against the first and third. Therefore the sole question that was required to be decided by the Court of Appeal was whether the Sugar Industry (Amendment) Decree of 1992 was invalid and of no legal effect.
THE SUGAR INDUSTRY (AMENDMENT) DECREE 1992
The relevant Decree was made on 6 February 1992. It was signed by the First President Ratu Sir Penaia  Ganilau. In the premable of the Decree it was stated that:  
In exercise of the powers vested in me as President of the Sovereign Republic of Fiji and Commander in Chief of the Armed Forces, and acting in accordance with the advice of the Prime Minister and the Cabinet [the Decree is issued].
Their Lordships in the Court of Appeal were satisfied that the Decree was validly made at least as regards to its initial promulgation. 
Relevant to this decision is Clause 4 of the Decree, which amended section 32 of the Sugar Industry Act. The Decree had the effect of substantially reducing the size of the Council and gave the Minister of Sugar Industry the option of appointing 8 members to the Council. It was this change and the manner in which the appointment by the Minister was made that formed the basis of challenge to the Decree. Admittedly the Council was reduced substantially in its size but no argument was advanced in either Court of any adverse effects this reduction would have on the performance of the Council.
It is noted that whilst His Lordship Mr. Justice Gates concentrated in his Judgment on the validity of the Caretaker Government and other matters relevant to it’s appointment he appears to have given scant regard to sections 194 and 195 of the Constitution Amendment Act 1997. The Court of Appeal read these sections carefully and noted their importance (without being critical in the writing of them or where in the constitution they ought to have been sited). 
In his Judgment His Lordship Mr. Justice Gates referred to his earlier decision in Karoi’s case and quoted a paragraph from it. In essence His Lordship seems to have expressed his “gut feeling” and unfavourable stance towards Decrees generally and the need for Parliament to review them. Their Lordships in the Court of Appeal were not persuaded by Gates, J’s strong statements as to the validity of the Decree. It would seem that the Court of Appeal did not wish to discuss their general view on the issue of Decrees. Instead, the Court of Appeal employed ordinary statutory interpretation methods in reaching their decision.
THE CLAIMS
The Respondents in seeking declaratory orders claimed that:      
1.	The purported appointments of the Minister for Sugar [and the Acting Minister for Sugar] are null and void and contrary to the provisions of the 1997 Constitution. 
2.	The Sugar Industry (Amendment) Decree 1992 is invalid and of no legal effect. 
3.	The exercise of powers by the purported Minister for Sugar in nominating 8 members to the Sugar Cane Growers Council is null and void and of no effect. 
THE LEGAL ISSUES
The validity of the appointment of the Caretaker Government of Laisenia Qarase and further that of his Caretaker Ministers was one of the issues on appeal. The validity of Decrees based on the doctrine of necessity which ordinarily allows a limited life to ”other legislative vehicles” such as the Decree, and the need to subsequently ratify them by a duly elected Parliament was another issue that comes up for a legal determination in the context of this case.
THE OUTCOME IN HIGH COURT
His Lordship Mr. Justice Gates in the High Court found that the appointment of Mr. Qarase as Caretaker Prime Minister and the appointment of all the Caretaker Ministers including the Minister of Sugar were unconstitutional and therefore unlawful. He ruled that the appointment by the Sugar Minister of 8 members to the Sugar Cane Growers Council was wrong and unlawful. 
When the decision of the High Court is carefully analyzed His Lordship appears to have taken a two-pronged approach in dealing with the issues before him. First, he made a finding that the Caretaker Government and Caretaker Ministers were appointed in furtherance of previous unlawful acts and therefore the Minister could not validly make nominations to the Council. Secondly, and more importantly he found that the Sugar Industry (Amendment) Decree 1992 had not been subsequently ratified by Parliament. Additionally as the Decree amended the democratic method of election of members of the Council and by reducing rights of growers it ought to be struck down. He declared it invalid and of no legal effect. In conclusion the learned judge made all 3 declaratory orders as set out above under the heading The Claims.
THE DECISION OF THE APPELLATE COURT
From the outset the Appellants challenged each of the three declarations made by the High Court. Since at the time of the hearing of appeal it was clear to the parties and to the Court that the next election of the Council was to take place in April 2004. Hence the decision the decision of the Court of Appeal was made prior to, that date. However, as a result of the passage of time it was deemed no longer necessary to have the Appeal Court to decide on validity or otherwise of the Ministers as such. 
The Court was therefore left to deal with the only issue of the validity of the Sugar Industry (Amendment) Act 1992. In making its decision the Court of Appeal first found that upon application of simple statutory interpretation rules the aforesaid Decree was validly made as in the making of it all preconditions were satisfied. Secondly, it decided that in accordance with section 194 “written law means an Act and Act means an Act of Parliament or Decree”.
The Court’s discussion of sections 194 and 195 of the 1997 Constitution Amendment Act coupled with the mention of clause 7 of the 1990 Constitution under which the relevant Decree was made puts to rest any doubts about the issuance and validity of the said Decree or its legal effects and consequences.
In its concluding remarks the Court was even prepared to deal with the argument of the Appellants that in 1987 the revolution (or military takeover) was successful, thus the acts of the revolutionary regime became legitimate from 14 May 1987. It is noted that for the first time an argument was presented to the Court on the events of 1987 and the making of a successful revolution. Regrettably given the time constraints (of delivering a decision before the scheduled triennial Sugar Growers Council election in April 2004) the Court of Appeal was unable to shed more light on the above issue. However, it appears that the Court may, should the opportunity so arise, delve deeper into this particular issue at an appropriate occasion in the future. In the Judgment their Lordships said that :
the doctrine of necessity, counsel submitted, has no application when a revolution is finally successful… -
Had more time been available for the hearing of the appeal and the preparation of the judgment, we may well have done so, since we appreciate that the issues raised in the submissions may have relevance in other circumstances (at page 6)
Their Lordships are to be complimented for taking the initiative in dealing with this appeal so promptly that it cleared the way for the preparation of Growers Council elections.
Legal Determinations Made by the Court of Appeal
Several legal principles could be extrapolated from the decision of the Court of Appeal. 
First, the Court will recognize the making of law by decrees where the appropriate constitutional procedures have been followed and the making of law by decree was envisaged by the Constitution. 
Secondly, should there be an important Constitutional provision wherever sited in the Constitution and if such a provision is clear and unambiguous the Court will, give a full, fair and liberal interpretation of the provision to meet the objectives of the lawmakers.
Thirdly, interpretation and /or definitional provisions in an Act will not be disregarded by the courts; instead they will be called into aid to help determine the appropriate meaning as regards matters raised in adjudication.
Ratio Decidendi
In the 1997 Constitution of Fiji the definition of ‘Act’ means an Act of Parliament or a Decree. Therefore, the Sugar Industry (Amendment) Decree 1992, was for the purposes of the provisions of the Constitution an Act, as such it was within the words ‘written laws’ as defined and therefore was within subsection (e) of Section 195. Thus on the authority of an express provision in the Constitution, the said Decree continued in force as if enacted under the Constitution.
Obiter Dicta
If the argument that once a revolution is successful, the legislative and administrative acts of the usurpers are legitimated ab initio is applied to the 1987 revolution or takeover which began on 14 May 1987 it could be found that the ‘revolution’ was successful. Hence there is no need for any subsequent validation of any legislative acts of the revolutionary regime (by a Parliament which has been created by the revolutionary regime in the first place).
COMMENT
The litigation arose out of the dissatisfaction on part of the National Farmers Union which lost control of the Sugar Cane Growers Council due to additional appointment of 8 members by the Minister of Sugar Industry. The proceedings were initially made in the High Court at Lautoka. Interestingly enough these proceedings were filed around the time Chandrika Prasad decision was made in the High Court. The eight government appointees to the Growers Council apparently tilted the scales in favour of the Sugar Cane Growers Association, which was able to form the majority on the Council. 
Their Lordships in the Appeal Court did not have the opportunity to consider all the constitutional issues primarily because of the urgency of their decision in light of the then pending elections of the Growers Council in April 2004. They were also constrained by the fact that the Appellants abandoned their first and third grounds. Thus significant constitutional issues raised in the judgment of His Lordship Justice Gates and arguments advanced by the Appellants in regard to the successful revolution of 1987 remain unanswered in the judgment of the Court of Appeals.
It is hoped that in the near future some of the remaining questions raised in this appeal will be again canvassed before the Court of Appeal and their Lordships will find it appropriate to carefully and at length deliberate and give their decisions on these issues. The issues raised by the revolution (or) military takeover of 1987 are important and are likely to arise again in the future. The sooner these are settled the better it will be for all concerned in this and other jurisdictions.
Once again, their Lordships must be complimented for their very timely delivery of this decision thereby making the recent Sugar Cane Growers Council elections to take place as scheduled in April 2004. It is hoped that other opportunities may arise in the near future to discuss these issues of government nominees in the Sugar Cane Growers Council and the criteria for their selection.

*        Fellow in Legal Practice and Coordinator,
            Post-graduate  Diploma in Legal Practice  Program
            Institute of Justice & Applied Legal Studies
The University of the South Pacific, 
Suva, Fiji.