The summons on strike out the action

On 7th August 2000 the respondents issued a summons to strike out (the summons), seeking orders that:

a) the Applicant has no locus standi to institute these proceedings

b) the application discloses no reasonable cause of action

c) the application is scandalous, frivolous or vexations

d) the application is otherwise an abuse of process.

The applicant's originating summons had sought the following orders:

a) that the attempted coup of May 19 was unsuccessful;

b) that the declaration of a state of emergency under the doctrine of necessity by the President Ratu Sir Kamisese Mara was unconstitutional

c) that the revocation of the 1997 Constitution by decree by the Interim Military Government was unconstitutional

d) that the 1997 Constitution still remains in force;

e) that the elected government is still a legally constituted government in view of the inability of the interim military government and Speight's Group to reach an agreement on governing the country.

f) That the elected government (The People's Coalition) is still the legitimate government.

g) Any relief that the Court considers just and fair.

In Bavadra v. Attorney-General (1987) SPLR 95 the plaintiff had sought to challenge certain decisions of the Governor-General. On 14 May 1987 the plaintiff had been Prime Minister of Fiji. On that morning a detachment of the Royal Fiji Military forces led by Lt Colonel Rabuka invaded Parliament. They arrested and detained the Prime Minister, members of his Cabinet, and members of the House of Representatives who formed the plaintiff's majority in the House. The Governor-General declared a State of Emergency and by proclamation dissolved Parliament. His Excellency also declared the office of Prime Minister and certain offices in the Executive and Legislature to be vacant. By originating summons, the plaintiff came to the High Court and sought 10 declaratory orders. The case arose out of Fiji's first military coup which had startled the nation and intruded upon its easy-going tranquillity. That coup gave birth to various incidents of legal, factual and constitutional complexity. In his judgment Rooney J at 98 line 158 et seq observed:

"This is probably the most significant and important action ever brought before any court in Fiji. To claim that it is frivolous, vexatious or an abuse of the process of the Court is entirely inappropriate. Mr. Newman, who argued the application, made no submission in favour of these propositions and confined his argument to the only pertinent issue, namely, whether the plaintiff has a reasonable cause of action."

The present case before me therefore may be the second most significant and important action ever brought before a Fiji court, and Rooney J's comments are equally opposite. As it turned out, Mr Udit did not submit in his address that the Applicant's claim was "scandalous, frivolous or vexatious or that it was otherwise an abuse of process". The striking out orders sought under paragraph (c) and (d) should not have been included in the summons. They are challenges that can be included in appropriate cases but not otherwise.

Such inclusion, made nonchalantly and unthinkingly, is itself an abuse of process.

Summons to strike out should be confined to allegations against pleadings which are relevant and capable of argument.

Dr Williams suggested the following amendment should be read into prayer (e) of the Applicant's originating summons:

(e) that the elected parliament is still the legally constituted parliament of Fiji

Prayer (f) was therefore little different from (e), (a) (c) and (d) amount to saying that the 1997 Constitution still remains in force. Such a question is not a merely hypothetical or academic one in the present circumstances, as was suggested. No argument was directed at the Applicant's summons to cover "no reasonable cause of action". The only argument taken up seriously by the Respondents was that relating to the locus standi or standing of the Applicant before the court to permit him to bring such an action.

Standing of Applicant

The Applicant brings these constitutional issues before the High Court which was original jurisdiction in such matters. Section 120(2) of the 1997 Constitution provides:

120 (2) The High Court also has original jurisdiction in any matter arising under this Constitution or involving its interpretation".

The High Court (Amendment) Act No. 27 of 1998 also repeat that jurisdiction in its Section 18(1):

"18(1) The High Court has the jurisdiction conferred on it by the Constitution Amendment Act 1997 and by any other written law and all other jurisdiction necessary for the administration of justice in the Fiji Islands."

An appeal path is provided from a final judgment of the high Court to the Court of Appeal in any matter arising under the Constitution or involving its interpretation [Constitution s 121 (2)] further appeal lies to the Supreme Court [s 122 (1)] and the Supreme Court has advisory jurisdiction if a question is referred to that court by the President acting in the public interest and on the advice of the Cabinet [s123].

In addition and without prejudice to a litigant's rights of appeal a power is given to a judge of the High Court to reserve for the consideration of the Court of Appeal on a case stated, any question of law which might arise and to seek the Court of Appeal's opinion. (see Section 15 Court of Appeal Act Cap 12)

If the Respondents accept that this is not an application in which an argument could be raised that the applicant was bringing an application that was "scandalous, frivolous or vexatious or otherwise an abuse of process" or the Applicant was in Lord Denning's phrase in R v Greater London Council Ex p Blackburn [1976] 1 WLR 550 at 555 "a mere busybody who is interfering in things which do not concern him", then his standing before the court would be largely established. His claims of course would have to be litigated and arguments heard. This is not simply an issue of special loss occurring to a private citizen as a result of a public law matter. If that had to be established first, the Constitution in seeking to protect all of the inhabitant of Fiji would but be a paper tiger.

The 1997 Constitution brought into being through the Constitution Amendment Act 1997 Act [No 13 of 1997] received the Presidential assent on 25 July 1997 and commenced as law on 27 July 1998. In Chapter 1 after the preamble, it states:

1 the Republic of Fiji Islands is a sovereign democratic state.

2 (1) This Constitution is the supreme law of the State

(2) Any law inconsistent with his Constitution is invalid to the extent of the inconsistency'

The loss therefore of democratic rights enshrined in the Supreme law would appear to suggest that any citizen of Fiji would be able to argue:

(a) that he had suffered a grave loss of rights and freedoms

(b) that to approach the courts would be a rightful path to redress such grievances (indeed it may be, as here, the only remedy open to him)

(c) and that to bring such proceedings could not be considered an abuse of process or the work of a mere busybody.

Chapter 4 of the Constitution deals with the Bill of Rights (Sections 21-40). Section 36 states:

"36. Every person who has a right to vote in an election of a member of the House of Representative has the right to do so in secret."

The Chapter extends protection to many matters including those of privacy, equality, religion and belief, freedom of movement, freedom of expression, and the right to form or to join a trade union.

The courts, if they have any role at all to play, must always be involved in the business of upholding justice and the rule of law. On being told the courts had no powers to intervene in a matter Salmon LJ in Ngle v Feilden [1966] 2 QB 633 at 654 said this

"This is a familiar argument on behalf of anyone seeking to exercise arbitrary powers free from any control by the courts. It was eg. recently advanced in this court on behalf of the Crown in In re Grosvenor Hotel (London) (No.2) when the question of Crown privilege was under consideration. I must confess that I do not find this argument attractive. One of the principal functions of our courts is, whenever possible, to protect the individual from injustice and oppression. It is important, perhaps today more than ever, that we should not abdicate that function."

It has been said that:

"The English court have converted the standing requirement into a right of access to the courts for those with standing, and a merely prima facie or discretionary barrier to access for those who lack it" [Aronson and Dyer: Judicial Review of Administrative Action 1996 p.697]

An applicant who has no personal connection with a dispute will nevertheless be allowed to sue by being granted standing as a matter of discretion.

Mr Udit cited Gouriet v Union of Post Office Workers [1978] AC 435 but this case on the standing issue has largely been explained and distinguished by subsequent cases: Of greater bearing now on the issue of standing is R v IRC ex parte National Federation of Self-employed and Small Business Ltd. [1982] AC 617 (the Fleet Street Casuals case).

This was a decision of the House of Lords in which their Lordships adopted a simple test for standing in all public law cases and that is "sufficient interest". It is interesting also that all of the judges in their speeches to the House said that the issue of standing should usually be left for the main hearing; another argument rendering the necessity for holding a separate hearing on the limited issue in this striking out summons otiose.

In R v greater London Council: ex parte Blackburn (supra) Lord Denning at 559 said:

"I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government or department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injured thousands of her Majesty's subjects, then anyone of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate."

With this concept of "high constitutional principle" Lords Diplock and Searman (in Fleet Street Casuals (supra) were in agreement. Whilst stating that ultimately it was a matter of some discretion. Lords Whilberforce and Roskill foresaw the possibility of a complete stranger with no personal stake in the matter being allowed to litigate. This they said could occur "in a case of sufficient gravity". No one is suggesting that the issues here before this court, as similarly observed by Rooney J. in Bavadra, are not otherwise than "grave". Even in cases which do not fit the traditional criteria for standing an applicant will be allowed to sue if the court in its discretion thinks that the case is of sufficient public, importance (see Fleet Street Casuals case supra).

Dr Williams referred me to further examples of the modern approach to standing and it is worthwhile to set them out shortly. In R v H M Treasury ex parte Smedley [1989] 1 QB 657 a tax-payer was allowed to challenge the Treasury's proposal to pay a large sum of money to the EEC; in Gillick vs West Norfolk Area Health Authority [1986] AC 112 a mother of 5 underage girls; in R v Secretary of State for Foreign and Commonwealth Affairs; ex parte Rees-Mogg [1994] QB 552 (DC) at 562 a life peer and former editor of The Times of London sought judicial review to challenge the government's ratification of the Maastricht Treaty, even though "his only stake in the dispute was his sincere concern for constitutional issues".

In R v Secretary of State for Foreign and Commonwealth Affairs; ex parte World Development Movement Ltd. [1195] 1 WLR 386 Rose LJ at 395f said:

"The authorities referred to seem to me to indicate an increasingly liberal approach to standing on the part of the courts during the last 12 years. It is also clear from Ex parte National Federation of Self-Employed and Small Businesses Ltd. that standing should not be treated as a preliminary issue, but must be taken in the legal and factual context of the whole case; see per Lord Wilberforce, at p.630D, Lord Fraser at p.645D and Lord Scarman, at p.653F."

(see too Richard Naidu v Attorney-General of Fiji (unreported) Court of Appeal Civil Appeal No ABU0039 of 1998S 27 August 1999; Thorson v A-G of Canada [1975] 1 SCR 138; Nova Scotia Board of Censors v McNeill [1976] 2 SCR 265; Minister of Justice of Canada v Borowski [1981] 2SCR 575 and [1989] 1 SCR 342; his Lordship cited also Lord Diplock's speech in the Fleet Street Casuals case (at 644):

Another factor in this case leading to the overwhelming conclusion that standing though going to jurisdiction was best left for the substantive hearing was the importance of the merits of the challenge, what Rose LJ considered (at 395a) "...an important if not dominant factor when considering standing". "The real question", wrote Professor Wade in Administrative Law, 7th Edition (1994) p.712 "is whether the applicant can show some substantial default or abuse and not whether his personal rights or interests are involved."

We are concerned in the present case with the supposed abrogation of the Constitution, a supreme law passed by the people's democratically elected representatives for the good governance of the nation and with an usurpation of power.

Lord Diplock in the Fleet Street Casuals case had emphasised the importance of vindicating the rule of law. Such aims were bound to provide the litigation foundation of "sufficient interest". Indeed by lodging human rights suits in the courts complaining of loss of rights an individual is in reality acting as an agent of public interest for all those who have also been deprived of their rights. (see Kokott J: The Burden of Proof in Comparative and International Human Rights Law. Kluwer Law International, The Hague 1998 at 210).

I find that this is not a frivolous application to the High Court. The Applicant is not a mere busybody. He claims to have lost rights by the purported abrogation and seeks to be re-assured that the Constitution is still in place so as to protect him and to maintain those rights. There is no alternative remedy open to him. The issues raised for decision are sufficiently grave. The issues are also of sufficient public importance. They involve high constitutional principle. I find the Applicant has the necessary standing to seek the court's intervention.

Procedure for bringing a Constitution Case

Section 41 of the Constitution provides for enforcement where a person considers that any of the provisions of the Bill of Rights Chapter "has been or is likely to be contravened in relation to him or her..." The section refers to the right to make application to the High Court "and that it is without prejudice to any other action with respect to the matter that the person concerned may have" [Section 41(2)]. The High Court has original jurisdiction to hear and determine applications referred to it, and is empowered to make such orders and give such directions as it considers appropriate [Section 41(3)].

No set procedure for applying is provided in the Constitution. Pursuant to powers granted to him by Section 41(10) of the Constitution, the Chief Justice has made rules namely the High Court (Constitutional Redress) Rules 1998. These provide for application for redress to be made by motion and affidavit [Rule 3 (1) giving at least 3 clear days prior notice to the parties affected by it, unless the High Court gives leave to the contrary. The notice of motion should state concisely the nature of the claim and the relief or remedy required [Rule 4(3)]. The practice and procedure to exercised is to be in accordance with the normal practice and procedures of the High Court and it Rules "with any variations the circumstances require". I have already stated as indicated by the case , I consider that practice and procedures take second place to considerations of gravity, justice, public interest and the upholding of the rule of law in constitutional cases. Included in the concept of justice here will be that of ease of access for the litigant.

It is somewhat disappointing therefore to observe the Attorney's officers attempting to deny the Applicant jurisdiction to bring this important case, and to deny him that access to the courts. When the trend of the case has been all in favour of permitting access, and since this applicant was obviously no frivolous busybody, there was no proper basis for attempting to stifle litigation. As officers of the court those directing the litigation should have realised these were not objections to be taken at this time in Fiji's crisis. In the current tragic scale of things, technical objections of this kind could only weigh as buzzing gnats in comparison with events on the grander stage, off from which they must surely be ignominiously swatted.

The Salient Fact

On 19 May 2000 Fiji's Parliament suffered an armed invasion and takeover. George Speight with some civilian supporters and a band of armed soldiers from the military forces moved in. Parliament was in session at that time. The Members has been elected the previous year under the 1997 Constitution. for the most part the Opposition Members were released and only the coalition Government and its Members of Parliament were held. Others present, staff and visitors were released. The Government, including the prime Minister, Deputy Prime Minister, Members of Cabinet and Government MPs were all held hostage. From T V coverage of which I take judicial notice the rebel group sought through their vociferous if not always translucid leader, to gain abolition of the democratic provisions of the Constitution as presently framed and assertion of indigenous Fijian supremacy. Beyond that it was impossible to discern specific claims.

Fiji Television as well as international stations relayed on Fiji Television gave daily and frequent coverage of events. The City of Suva was extensively pillage with shops being chiefly targeted. Some were burned, most were looted. Some estimates assessed the extent of the damage at $F35 million. I take notice of these scenes and accounts as live events unfolded in the crisis. Speight and his group purported to abrogate the Constitution in the next day, the 20 May 2000. Ratu Jope Seniloli was sworn in as the rebels choice of President. Various members of the group were sworn in as Ministers and decrees under the auspices of the Taukei Civilian Government were published. On 19th May 2000 the lawful President declared a State of Emergency.

the rebels roamed around the city of Suva at odd times apparently when they felt like it.

The country appeared to be drifting daily into further anarchy.

Casualties occurred to the armed forces and an unarmed policeman was shot dead by the rebels.

That same night 28 May 2000, the lives of the President and his immediate family were threatened by the rebels.

Fiji TV One's premises were also attacked by a rampaging mob who were allowed to emerge unchecked from the parliamentary complex.

The TV station was seriously vandalised and put out of operation.

Weapons were discharged by the rebels indiscriminately and the town was intimidated.

The president and his family were evacuated to a Fiji naval vessel on Monday 29th May, 2000.

The President then stated that he would relinquish his post as President.

As a result of the absence of any other viable alternative at that time I assumed Executive Authority from the President as Commander and Head of the Interim Military Government of Fiji.

Meanwhile, he directed negotiations with the George Speight group in order to secure the release of the hostages.

He appointed an interim military government on July 3, 2000.