Postdate: 10/ 09/ 2003
There is currently disagreement between the SDL and FLP parties as to how many FLP parliamentarians are entitled to places in Cabinet. The SDL believes the FLP is entitled to only 14 places in a 36 member Cabinet, the FLP believes the number should be 17. Although the Prime Minister’s decision to expand Cabinet to 36 members is an irresponsible one, I will confine my comments to that eventuality, as it is the only one on offer. The issues discussed here work out correspondingly for a Cabinet of different size. I believe that the SDL is quite right in maintaining that the FLP is entitled to only 14 seats.
All agree that the FLP is the only party (apart from the SDL) with any strict entitlement to places in Cabinet, since they are the only party with at least 10% of the seats in the House (Section 99 (5) of the Constitution). Their actual percentage in the House is 39.43%, so that percentage is their entitlement also in Cabinet (= 14 places). If there was a further party with at least 10% of seats in the House and this party declined the Prime Minister’s invitation to Cabinet, Section 99 (7) prescribes that the Cabinet posts it would be entitled to must be shared proportionally between the SDL and FLP parties. Since there is no such party (and since the FLP itself is not declining the invitation), this Section does not apply. It would appear, however, that the FLP expects the same principle to be applied to parties who are not entitled to Cabinet posts at all (the small parties and Independents). This would mean that the FLP would get 17 Cabinet positions and the SDL 19 – which is fully proportional to their respective seat-holdings in the House (28 seats and 32 seats respectively). At first sight, this seems to fulfil perfectly the requirement of Section 99 (4) that “Cabinet should, as far as possible, fairly represent the parties represented in the House”. Not so, however. If the Cabinet posts theoretically corresponding to non-entitled parties were supposed to be redistributed proportionally like this, it would surely have been stipulated in the Constitution in a way comparable to Section 99 (7). A better indication of the approach to be taken is provided by Section 99 (8). Here, if all parties decline the Prime Minister’s invitation, we revert to the old practice where Government held all Cabinet posts. The Constitution was framed, I believe, keeping this former practice in mind.
The basic new element of the Constitution is the one that requires multi-party-ism, namely Section 99 (5), which requires the Prime Minister to invite all parties with at least 10% of the seats in the House to be represented in Cabinet in proportion to their numbers in the House. This Section does not apply to the Prime Minister’s party, however, for this party is already in Cabinet by virtue of being the core of Government. The Prime Minister is the host doing the inviting. It would hardly be legislated that, as leader of his party, he invite himself into Cabinet! The Prime Minister’s party automatically holds all Cabinet posts not apportioned by this Section and Section 99 (7). To be a Government at all, a particular party or coalition normally needs an absolute majority of the seats in the House. It is only right and sensible that the Government would also have such a majority in the Cabinet. The Constitution, presuming that the Government has such a majority, provides that any Cabinet posts allocated to parties who are not strictly entitled (whether part of a Government coalition or not) must come out of the quota of the Prime Minister’s party, as it is this party’s decision to grant them (Section 99 (6)). An interpretation of Section 99 (5) which gives the Prime Minister’s party Cabinet seats only in proportion to its seat-holding in the House, creates nonsensical situations, and must therefore be rejected. For instance, if the FLP had formed a coalition with MV, the NLUP and the two independents, such a coalition would have had 38 seats in the House as a Government, but the SDL would still have had its 32 seats and the FLP only 28. Even if this FLP-headed Government were not to allot seats to the MV, NLUP and the Independents, it would still (by the above interpretation) have less Cabinet posts than the SDL. How could it properly govern? A worse example (by this same reasoning) is if one party held say 30 seats in the House, but another party holding only 15 seats formed a four-way coalition Government with three parties who each held 7 seats. None of these three parties would be entitled to seats in Cabinet. Whether or not the 15-seat party were to allot Cabinet posts to these other parties (from its meagre allotment), the situation would be ridiculous. The non-government party would have twice as many places in Cabinet as the Government! An even more absurd scenario is conceivable. If 5 parties with 7 members each formed a Government with at least one Independent, none of them would be entitled to places in Cabinet. So we’d have a Government formed by one set of parties, and a Cabinet by another! It is wrong to assume that the party with only a relative majority of seats in the House will always become the Government. All the more so since even Fiji’s voting system has moved away from requiring only a relative majority (First-Past-the Post) to requiring an absolute majority (the Alternative Vote). It is quite reasonable for smaller parties to come together and form an absolute majority which will defeat the largest party in the House in forming a Government. An interpretation of Cabinet post allocation must be made that conforms to the Constitution’s wording yet makes sense in terms of the various possible coalition arrangements. What has lead people astray perhaps is Section 99 (4) quoted above: “Subject to this section, Cabinet should, as far as possible, fairly represent the parties represented in the House”. The first words of this Section however, (namely, “Subject to this section”) are of crucial import. The general aim (fairness) provided for in Section 99 (4) cannot override the details stipulated in the following Sections. Furthermore, to be “fair” to Government, the Prime Minister’s party will sometimes need a certain surfeit of seats on which it can draw to provide Cabinet representation to its perhaps non-entitled coalition partner(s). Confusion in this matter may also stem from the Supreme Court’s recent judgement, Section 142. Here it is said that “so long as the Prime Minister’s Party has a majority of the total of parliamentary seats held by that Party and all other eligible parties it will have an entitlement to a majority of the positions in the Cabinet”. This might indeed seem to infer that if it did not have such a majority, it would not have such entitlement. However, while Section 142 is undoubtedly correct as far as it goes, there are other instances too (which the Court did not mention) where the Prime Minister’s party will have a majority of the positions in Cabinet – such as in the ‘correct’ interpretation of the examples I provided above. The only time it will not do so is when the total of seats held by entitled parties exceeds 50%.
In such a case however, at least one of the entitled parties would be in coalition with the Prime Minister’s party, otherwise he would hardly have been able to form a Government. The two (or more) parties together will still therefore hold a majority of the Cabinet posts. We can also note the Supreme Court’s view (Section 139) that “the Government, manifest in the Cabinet, must collectively retain the confidence of the House”. The words “manifest in Cabinet” here are clearly based on a presumption that, since a Government is normally formed from an absolute majority of the seats in the House, Government will also hold such a majority in Cabinet. As far as I can see, this can only be guaranteed if the interpretation I have given here (which is also, I believe, that of the SDL) is adopted, namely that parties (other than the Prime Minister’s party) which hold at least 10% of the seats of the House, are entitled to their strict proportion in Cabinet, while the Prime Minister’s party is entitled to the rest, except when Section 99 (7) applies, in which case both the Prime Minister’s party and any other entitled parties get an increment. Although the Supreme Court, by not explicitly covering non-entitled parties, may have added to the confusion, it would be most unwise to expect it to support the FLP position. The Court was not making a judgment on the numbers question, but only providing corroborative arguments for the workability of a Multi-Party Cabinet.
When it does sit to consider the proportions, it will most surely be driven by the words of the Constitution, plus what makes practical sense in the context of what the original Constitution-framers had in mind. The Court will not want to give a judgment that provides us in a few years with another Constitutional crisis. The examples given above (and variations on them) are real possibilities. An interpretation will surely be given that does not undermine any Government’s ability to govern. I believe it is unwise to bring this matter before the Supreme Court at all, as I am sure the case will fail. In any event, although there are various complex issues here, it would seem best that the FLP enter Cabinet immediately so that there is no further loss of time in getting the important Multi-Party provision into operation. While it is understandable that the FLP would not want to proceed with a Multi-Party Cabinet that is illegally constituted, a Cabinet with 14 FLP parliamentarians is much less illegal than the present one! I believe the probability is that 14 places is the legal entitlement. Consequently, not to go into Cabinet may in fact be prolonging governance by an illegally constituted Cabinet.
This article is submitted by the Citizens’ Constitutional Forum. Fr Arms is a member of the CCF Steering Committee.