“The doctrine of necessity is a narrow doctrine and does not cover matters outside of the routine and the necessary … Unusual programs of expenditure or reformist projects are the prerogative of an elected government. A lawful government needs to be buttressed (supported and strengthened) by holding the confidence of the House of Representatives, and by acting within the Constitution with the two other bodies of Parliament, namely the Senate and the President. Moving in advance of the will of Parliament in reformist fields, however well intentioned, is not an act which the courts will validate under the necessity doctrine. The authorisation for the expenditure of public funds for such reform work is similarly outside the permitted scope of work of a caretaker Cabinet. Such authorisation is unlawful. Parliament which carries the necessary constitutional jurisdiction and authority for reform, may, when elected, set up a Parliamentary Select Committee for such work”. – Justice Anthony Gates – June 15, 2001.
This was the thrust of a ruling by Justice Gates when he as a High Court of Fiji judge based at Lautoka High Court granted injunctions against the Asesela Ravuvu chaired Constitution Review Commission appointed by the interim regime of Laisenia Qarase after the May 2000 coup to review the 1997 Constitution. This ruling effectively aborted the work of the Ravuvu Commission.
The plaintiffs in the case (those who sought the injunctions) were Jokapeci Koroi, Mahendra Chaudhry and the Fiji Labour Party. The case (Action No. HBC 131 2001 L) was filed on May 31, 2001.
It was heard at Lautoka High Court on June 11, 2001 and the ruling was given by Mr Justice Gates four days later on June 15, 2001. While delivering his ruling, Justice Gates said he had come to a clear view that the injunctions must be granted.
He ruled, “It is abundantly obvious that the advice of the Cabinet tendered to His Excellency the President to appoint a Constitution Review Commission was outside the lawful ambit of a caretaker administration.”
Some seven years later, another interim regime is using $2.4million of taxpayers’ funds on a similar exercise but instead of calling it a Constitution Review Commission, it has decided to camouflage its intention to illegally amend the Constitution by using phrases like building a better Fiji through a People’s Charter; formulated by a motley crew.
It is like remixing old songs to hip hop in the hope they will make an impact on the billboard charts.
When Commodore Voreqe Bainimarama executed the 4th military coup on December 5, 2006, the army commander announced to Fiji and the world at 6pm on that day that he was stepping into the President’s shoes to dismiss Laisenia Qarase under Section 109(1) of the Constitution and its reserve powers.
Commodore Bainimarama said he was doing so under the legal doctrine of necessity because the President – Ratu Josefa Iloilovatu – had been blocked from exercising his constitutional powers. He then assumed executive authority. A month later, Commodore Bainimarama basically stepped out of the President’s shoes and returned executive authority to the President.
Immediately Ratu Josefa assumed executive authority, endorsed the coup as being constitutionally valid and proceeded to appoint an interim Cabinet.
Justice Gates ruled on June 15, 2001 that the “doctrine of necessity is a narrow doctrine and does not cover matters outside of the routine and the necessary”.
On August 24, 2001 Justice Gates made a similar ruling (Action no. HBC0179/2001 L).
The case was filed by Jokapeci Koroi, M P Chaudhry and Dr Ganesh Chand of the FLP against the Commissioner of Inland Revenue and Attorney-General and the State.
It was about the validity of the Value Added Tax (Essential Food Items Amendment) Decree made by the President upon the advice of Mr Qarase’s interim Cabinet on January 23, 2001. Through the Decree the interim regime had re-imposed VAT of 10% on seven essential items like tinned fish, flour and sharps, powdered milk, edible oil, rice, tea and water and sewerage charges.
These were removed from January 1, 2000 by the FLP led government through the parliamentary process.
Justice Gates ruled that the re-imposition of VAT was unlawful and without proper authority. He granted a permanent injunction against the Commissioner of Inland Revenue from enforcing payment of VAT on the essential items.
Justice Gates also ordered that VAT unlawfully collected by the State on the essential items be used for poverty alleviation by the new government after the elections. When Laisenia Qarase and the SDL formed the government after the elections, they legalised the re-imposition of VAT through the parliamentary process in October 2001, which was then removed five years later by his own government.
In his ruling Justice Gates also commented on the lack of authority for making of Decrees and Proclamations.
“Laws are to be made only in accordance with the Constitution. Laws made otherwise or ‘amended not by the legislative will but by an executive decree’ would have to be scrutinised for compliance with the Constitution,” Justice Gates ruled while quoting an earlier unreported High Court case (State vs Audie Pickering of 30/7/2001 presided over by Justice Nazhat Shameem).
Justice Gates comprehensively quoted Justice Shameem’s ruling while delivering his decision which stated, “The judiciary has a traditional deference to Parliament. It is for Parliament to pass laws, and for the judiciary to give effect to them. Most legislation will have a valid constitutional purpose because it would have been passed after much research, discussion and debate. A recommendation for legislative change normally comes from a group or department after a need for a change has been acknowledged. A minister, having discussed the matter with his/her own ministry will then present a Cabinet paper. The matter will be discussed in Cabinet before it is prepared in a Bill form.”
“Once in Bill form, it is published so that the public and concerned parties can discuss it and make representations to their Member of Parliament. The Bill, if it is not chanelled to a Sector Committee for Parliament to hear further representation from the public and from government, will be debated in Parliament, both in the Lower and Upper House. It is only after this process that a Bill might become law. The law when passed by Parliament, and assented to by the President has the status of a law passed through a democratic process … This is the essence of democracy. It is a powerful reason why the judiciary should defer to the will of Parliament. Legislation passed by Parliament reflects in principle the will of the people.”
In view of the above rulings, how can the interim regime claim its draft People’s Charter process is legal? How can the regime justify the use of $2.4million (that’s what we are told) of taxpayers’ funds for a document that intends to derail the Constitution – the supreme law of the land passed by Parliament and reflecting the will of the people?
On January 16, 2007, The Fiji Times reported prominent constitutional lawyer Richard Naidu as saying, “In life, if something looks like a duck and quacks like a duck it probably is a duck. In law, something that looks like a government and quacks like a government isn’t always a government.”
This is exactly how the use of taxpayers’ funds for the draft Charter remix is quacking.