By Dr. S. Chandrasekharan

The Supreme Court finally took up for hearing the multi party cabinet case on June 18.

The case in brief is as follows.  After the General election in 2001, the Prime minister of Fiji is required under section 99(5) of the Fiji Constitution of 1997 to permit any party holding at least ten percent of the seats in the House of Representatives and which is not already in the government be represented in Cabinet in proportion to its membership in the House.  This provision was introduced essentially to ensure that both, the ethnic communities the Fijians and Indo Fijians have a substantial presence in any cabinet formed for running the government.

In accordance with these provisions, Prime Minister Qarase invited Chaudhry’s party to join the cabinet on September 10, 2001 and Mahendra Chaudhry in return accepted the invitation.  However Qarase did not either consult or include any of the representatives of the Fiji Labor Party headed by Chaudhry.  The action of the Prime minister was challenged in the lower court and finally it has come up before the Supreme Court of Fiji.

The Fiji Court of Appeals on a reference by the High Court gave specific replies to questions posed by the High Court and it is this matter that is being deliberated by the Supreme Court.

The response of the Court of Appeals on the points raised were:

The letter of invitation of Prime Minister and the acceptance of opposition leader were in accordance with the section 99 of the Constitution.

The Prime minister was required under section 99(9) of the Constitution to consult Mr. Chaudhry in inducting members of the opposition party into the cabinet and this provision was breached.

The Prime minister has breached a constitutional duty in advising the President in the formation of a cabinet without the inclusion of the opposition members in the cabinet.

The Queen’s Counsel took a pathetic stand in the Supreme Court. According to him, the Prime minister’s obligation was only to invite under the Constitution and "no less and no more." The obligation was to invite and not include. This is a strange argument as this defeats the very purpose of Article 99 of the Constitution.

The second point made was that the offer of acceptance of Mahendra Chaudhry was "conditional" and the Prime minister therefore was under no obligation to include his (Chaudhry’s) party’s representatives in the cabinet.  This latter point was already decided in the lower court in favor of Chaudhry and there is no legal issue involved.

The government side stuck to their position that the provision of a multi party cabinet under the Constitution is unworkable, as their mandate to rule cannot be implemented with the opposition Labor party in the cabinet as they hold two extreme positions.

All these arguments have been considered and rejected by the High Court and the Supreme Court is only obliged to rule on the point of law and not on facts.

It looks that the Supreme Court ruling may go in favor of Mahendra Chaudhry and if so the case will go back to the High Court who will make the orders.

What next? Prime minister Qarase has repeatedly said that he would abide by the court verdict and he is not likely to invite international opprobrium by rejecting the court verdict.  He has only two options left: one) to call for another election; and two) include the Labor party members in the cabinet but give them no portfolios.  In the latter case, though it would go against the spirit of the Constitution, he will be legally justified as it is the prerogative of the prime minister to allot work for the ministers in his cabinet.

It is on record that Qarase has rejected snap elections for two reasons:  one) it will be expensive to hold another election (at least 16 million dollars); and two) the results may throw up a similar situation where he will have to provide seats to opposition political parties, an arrangement he has maintained as "unworkable."

Qarase has declared repeatedly that his long-term aim is to dismantle the multi racial constitution of 1997 and introduce a new structure where the indigenous Fijians will have complete political control.  It remains to be seen how he would go about it, by remaining within and undermining it as he is doing now or by other means.

Opposition leader Mahendra Chaudhry has so far refused to have "Talanoa" talks on the ground that he would await the court verdict.  Without waiting for the High Court orders, he should in our view, seek a meeting with Qarase.  He has also got an option in getting his party members included in the cabinet but let them resign en masse to give Prime minister Qarase a free hand in running the government. This could be done, provided he strike a deal that the Constitution will not be amended in the near future to give either of the two communities total control of the government. This is necessary in the interest of racial amity and stability in this unfortunate racially divided country.

July 18, 2003

South Asia Analysis Group: 

Dr. S. Chandrasekharan is director of the South Asia Analysis Group, which is based in Noida, India.

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