The arithmetic and spirit of the multi-party power sharing [Fiji Times, 15 July 2004]
The Supreme Court has handed down a Majority decision (Justices Fateakai, Mason, French, and Weinberg) on the multi-party cabinet case, with a dissenting Minority view (Justice Gault).
The Majority and Minority view both have strengths and weaknesses- depending on particular election outcomes.
The Majority and Minority decision agree on one part- the ratio in cabinet between the parties who satisfy the 10% threshold.
The Majority decision may be suspect in the part where it rules that the Prime Minister should then be able to call on as many Independents and Senate members as he wishes.
As the Minority view correctly points out, this interpretation can contradict the spirit of the “power-sharing” concept and the 10% threshold requirement.
But the Minority view could also create an unworkable cabinet in some situations- which the Majority view can deal with, even if it has the possibility of misuse.
Both the Majority and Minority views have inherent weaknesses under particular outcomes, because of the inadequacies in the wording of the relevant sections of the Constitution.
Parliament should revise the relevant Constitutional clauses before the next election, when the numbers may all change again, boots may be on other feet, and even bigger messes recur.
For the moment, the Majority judgment, right or wrong, can be made to work, if the political leaders are inclined to co-operate. It will not work if political leaders fail to think of the nation.
The symptom of this continual failure of political leaders is the number of court cases where the judiciary is being asked to pull red-hot irons out of politically stoked fires.
The arithmetic of it
To see the weakness of the Majority judgment (and the relevance of the Minority view) look at the following plausible election possibility.
Assume that there are only two parties who have the minimum 10% of the seats in the House of Representatives- SDL and FLP, with 28 seats each.
Suppose SDL has formed government (it could be either Party next time round?)
How many should SDL and FLP have in, say, a 24 Member Cabinet?
The Majority judgment and the Minority view correctly conclude that the number of Cabinet posts held by SDL party members and FLP party members should be equal.
But how many exactly, and in what proportion between the SDL “nominees” and FLP “nominees”? The Judgment leaves it to the Prime Minister.
The Majority Judgment states that the Prime Minister can decide how many he wants for his official SDL party share.
For instance, if the Prime Minister decides to have 5 of his SDL members in Cabinet, this then determines that FLP can only have an equal 5 (total of 10 from SDL and FLP).
But the Majority view argues (with Justice Gault dissenting) that the Prime Minister can then select an additional 14 from Independents in the House of Representatives and (unelected persons) from Senate.
Paradoxically, if the Prime Minister should want some one from another Party (which may even have supported the SDL for Government), that person would come out of his “official 5”, but the Independents and Senate members selected would be “additional” to his 5.
The spirit of it
The Minority view of Justice Gault, and there is merit in it, is that this outcome would be wrong.
According to the 10% threshold rule, only the SDL and FLP have an entitlement to be in Cabinet, and both have the same numbers (28) in the House of Representatives.
Justice Gault’s view would be that SDL and FLP should have 12 each. If they want members from other parties, Independents or persons from Senate, these should come out of their own respective shares.
Gault asks, why should an Independent (who does not satisfy the 10% threshold) or the Senate person (who was not even elected) be allowed into cabinet as an extra nominee of the Prime Minister?
In the example above, under the Majority ruling, the FLP could theoretically end up with only 5 out of 24 (with minor influence in Cabinet), while the Prime Minister and his nominees, would end up with 19.
Such possibilities, in Gault’s view, undermine the power-sharing concept for two parties which had equal numbers of successful candidates in the election- 28 each out of 71.
But the weakness in the Minority view
But look at the weakness of the Minority view.
For the Prime Minister to be appointed, he must have the support of the majority of the House- at least 36. This is absolute necessary if the annual budget is to be passed (and failure in that automatically calls for a dissolution of parliament).
For SDL to form Government, it would have needed the support of at least another 16 reps, in addition to his 20 elected SDL members.
So why should SDL’s representation in Cabinet be exactly the same as FLP’s, which could (and probably would) be an ungovernable situation for the Prime Minister?
Justice Gault considered “the spectre of a Government with a minority in Cabinet as quite unreal”.
But contrary to Gault’s view, it is quite conceivable (and quite likely given the fragmentation of indigenous Fijian votes) that a Minority Party may be able to form Government, with other support.
Suppose in the next election, FLP wins 30 seats.
Say the SDL drops to 20 but has the support of another 21 to make a total of 41 in the House, therefore being offered the Prime Ministership and forming the Government.
According to Justice Gault’s Minority view, SDL would be entitled to only two fifths of Cabinet positions (20 out of 50) and FLP would be entitled to three fifths (30 out of 50).
But this would surely also be unfair, given that the Prime Minister must have had the support of 41 out of the 71 representatives in the House (even if his own SDL Party had only 20).
The Majority Judgment therefore, by allowing the Prime Minister to appoint persons to Cabinet additional to his share indicated by SDL numbers, ensures that the Prime Minister is able to have a majority in cabinet.
But unfortunately, the Majority judgment allows him to have as big a majority as he wishes (and make the FLP as much of a minority as he wishes) in cabinet.
All he has to do is reduce his “official SDL” number (which automatically also reduces the FLP number in proportion), and increase his nominees from Independents and Senate.
This is not about the SDL or FLP making use of the Majority Judgement. Replace SDL with FLP in the analysis above, and vice versa- and see how the plot looks.
How resolve this mess?
One possible resolution of this situation is that the Prime Minister should have numbers in Cabinet at least in proportion to his total support in the House of Representatives- whether from other political parties or Independents.
Given the constitutional requirement that the Prime Minister must have the support of the majority of the House, he must have the support of a minimum of 36 seats out of a 71 member House.
His share of Cabinet would then be decided by the proportion of his total support in the House, to that of the other Parties entitled to be in Cabinet (and who agree to be in Cabinet).
And the Prime Minister would then decide what portfolio he gives the others.
This aspect of “fairness of power-sharing” in the multi-party government has to be worked for by the participating political leaders, with good-will on both sides.
No court can or ever will decide that.
For those who want to get rid of the multi-party government clauses, they might want to think beyond the current ethnic political boxes.
One of these days, a new multiracial Vanua Levu Party, or a Western Province Party, or South Eastern Viti Levu Party may be strong enough to be entitled to representation in Cabinet.
To ensure that economic and social benefits of governance are shared fairly by their regions and peoples, regardless of ethnicity or religion.
The multi-party cabinet provisions protect that possibility.
Come that day.