Governor-General v Mamaloni; Mamaloni v Attorney-General & The Governor-General [1993] SBCA 1; CA-CAC 1 & 3 of 1993 (5 November 1993)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

Civil Appeal Nos. 1 & 3 of 1993

BETWEEN:

THE GOVERNOR-GENERAL
Appellant

AND:

SOLOMON SUNAONE MAMALONI
Respondent

AND BETWEEN:

SOLOMON SUNAONE MAMALONI
Appellant

AND:

THE ATTORNEY-GENERAL and
THE GOVERNOR-GENERAL
Respondents

Before: Connolly P
Savage JA
Williams JA

Delivered the 5^th day of November 1993

JUDGMENT OF THE COURT

On 18 June 1993 the 47 members of the National Parliament assembled pursuant to Schedule 2 to the Constitution in an election meeting for the purpose of electing a Prime Minister after a General Election. His Excellency the Governor-General presided over the meeting as is provided by Schedule 2. At the first ballot Hon. F B Hilly received 24 votes and Hon S S Mamaloni 23. His Excellency had, prior to the ballot, informed the members that 24 votes would constitute an absolute majority, a proposition from which no one at that stage dissented. Accordingly he declared Mr Hilly to have been elected Prime Minister pursuant to cl. 8 of Schedule 2. Mr Hilly was later sworn in as Prime Minister and continues to hold that office.

On 12 July 1993 Mr Mamaloni wrote to His Excellency contending that the election of Mr Hilly was invalid and submitted the matter for his Excellency’s determination in accordance with cl.10 of Schedule 2. On 6 August 1993 His Excellency replied in writing declining to reverse his determination of 18 June 1993. This led to civil case no. 290 of 1993 in the High Court in which Mr Mamaloni, by originating summons of 14 August 1993, sought a declaration that His Excellency had erred in law in declaring on 18 June that Mr Hilly had been elected and in holding on 6 August after a dispute that 24 votes constituted an absolute majority. &#1 sought a further declareclaration that these alleged errors of law involved excess of His Excellency’s jurisdiction under cl.10. This application was expressly made under s.83(1) of thetitution. The respondents tnts to the originating summons were the Attorney-General and the Governor-General.

On 16 August 1993 Mr Mamaloni made a further application in civil case no. 291 of 1993 for leave to apply for certiorari to quash His Excellency’s determinations on 18 June 1993 and 6 August 1993 that Mr Hilly was validly elected on an absolute majority of 24 votes. Notice of this application was given to the Governor-General and the Attorney-General. On 27 August 1993 His Excellency applied by summons in both civil case 290 and civil case 291 for consolidation of the cases and for the striking out of the application for certiorari and the application for relief under s.83(1) of the Constitution. This application was heard by Palmer J on 10 September 1993 and on 21 September his Lordship dismissed the application to strike out with costs. His Excellency appeals to this Court against that order by notice of appeal of 22 September 1993.

The substantive applications were heard before Palmer J on 24 September and judgment was given on 8 October 1993 dismissing Mr Mamaloni’s application in both civil cases. He appeals against that judgment by notice of appeal dated 20 October 1993.

It will be convenient to deal first with the Governor-General’s appeal. Not only firspoin point ofnt of time but its central contention is that the correctness of the Governor-General’s decision under cl. 10 is not justiciable. If that contention be correct it virtudispof the appeals befs before tore this Court. Four grounds for his contention were given, two of which do not warrant extensive discussion. One draws attention to His Excellency’s immunity from suit in his personal or private capacity, but he is plainly not so sued. A second contends that certiorari does not lie save in relation to judicial or quasi judicial decisions but that principle has been much eroded in recent years. In any case, His Excellency’s decision declared the right of Mr Hilly as against that of Mr Mamaloni and involved a determination of law, viz. whether 24 was an absolute majority having regard to s.144(1) of the Constitution. An additional argument had been that the process does not lie to the Queen’s representative. That rule has also been eroded in recent years. See The Queeoohey, exex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 in which Gibbs CJ emphasised that the Courts have the power and duty to ensure that statutory powers arecised only in accordance wice with law and that they can therefore inquire whether the Crown itself has exercised a power granted to it by statute for a purpose which the statute does not authorise. See also F.A.I. Insurances Ltd. v Winneke [1982] HCA 26; (1982) 151 CLR 342 in which, for similar reasons, relief was given against the Governor-in-Council of the State of Victoria.

The principal ground of His Excellency’s application was that cl. 10 of Schedule 2 ousts the jurisdiction of the Courts in relation to the determination by the Governor-General of a dispute arising out of or in connection with the election of the Prime Minister under Schedule 2. Clause 10 reads alowsl

“10. Any dispute arising out of or in connection with the calling or conduct of any election meeting or the election of the Prime Minister under this Schedule shall be minedhe Governor-GenerGeneral whal whose determination of the matter in dispute shall be final and conclusive and shall not be questioned in any proceedings whatsoever.”

This type of provision is commonly called a finality or ouster or privative or preclusive provision, that is one which excludes the jurisdiction of the Courts to determine the correctness of the determination, provided always that the tribunal (here the Governor-General) has acted within jurisdiction. The expression “within jurisdiction” is a legal phrase meaning no more than that such a law requires the Courts to hold their hands where theunal estion has done the very task assigned to it by, in this case the Constitution, aon, and innd in other cases the relevant statute. No better exposition of the limits of such a provision will be found than in the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147; [1969] 1 All ER 208. Lord Reid, at p.171 of the Law Report (p.213 of the All ER), after emphasising that the tribunal in question must have been entitled to enter on the inquiry in question, continues:

“But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. I haven its deci decision iion in bad faith. It may have made a iocishic which it had no power to make. It ave f in the course of the inquiry to comply with the requirements of natural justice.tice.&#160 It may in perfect faid hish hiscond theisions givingiving it power to act so that it failed to deal with the question remittemitted to d to it and decided some question which wa remito it. It may have refusedako tnte inte into acco account something which it was required to take into account. Or it may base dits decisiocision on some matter which, under the provisions setting it up, it had no right to take into account. &# do ntend list to be exha exhaustive. &#16 if it decides a questiuestion remitteditted to i to it for decision without committing anyhese errors it is as much entitled to decide that question wrongly as it is to decide it riit rightly.”

Now Mr Mamaloni’s letter of 12 July 1993 in terms called on His Excellency to exercise his power under cl. 10 to determine whether an absolute majority required at least 25 votes rather than the 24 which Mr Hilly had received and his letter of 5 August 1993 recognised the Governor-General as “the only high executive authority” to determine the question. His Excellency&#8217ps ref y of 6 August 1993 answers that question and no other. Now it cannot be doubted that the Governor-General’s decisio18 Ju93 that 24 votes was an absolute majority was a decision “in connection witn with ...h ... the election of the Prime Minister” under Schedule 2 and that Mr Mamaloni’s questioning of that decision brought into being a dispute “in connection with” the same matter, which Mr Mamaloni himself called on the Governor-General to determine. His Excellencyrmined it, ont, on 6 August, by adhering to his previous decision. &#his is plainly within cl.n cl. 10 and the argument tha Excey’s decision was beyond his jurisdiction or his power under cl. 10 cannot bnot be suse sustained. It is plain therefhat none of the types o erro error to which Lord Reid refers in his speech occurred. None is demonst, none is alis allegedPalmeecognised that this was the position saying:

“The (Governor-General)eral) did did not commit any of the errors listed id Rei17;s judgment. He dealt wie questquestion tion rion remitted to him and did not decide some other question. He did not reto take into anto account something which he was required to take into account or take into account something which he had no rio con.

In other words the (Governor-General) did everything that was proper befr before gore giving his determination on 6^th August 1993. &#16) therefore was entitletitled to decide the question wrongly as to decide it rightly.”

Unfortunately however, his Lordship was persuaded that since the application was interlocutory only, a jurisdictional error must be assumed. Now it is true at the interinterlocutory stage of an action, the clearest of cases is required before the claim will be struck out. Thus, in type tu situation,tion, if any of the errors of which Lord Reid gave examples in his speech in Anisminic was alleged it would ordinarily take evidence and a finding at the trial whether the error had in fact occurred before a firm conclusion could be reached. In this case however the applicant himself had identified with precision the error which he claimed had occurred. This, quite simply was, that in determining the subject matter which was in dispute between Mr Hilly and himself the Governor-General had reached a wrong conclusion. &#his cannot be regarded ased as a jurisdictional error. It is perfectly clear that His Excellency determined the very question which Mamaloni sought to have determined, that the dispute in queswas within the language of e of cl. 10 and that it was therefore one in relation to which the determination of the Governor-General is, by the very words of the Constitution, to be final and conclusive and not questioned in any proceedings whatsoever. Mr Mamaloni’s application was made under s.83(1) of the Constitution which empowers an application to be made for relief by any person who alleges that his interests are being or are likely to be affected by the contravention of a constitutional provision. Section 83(1) is however expressly subject to para 10 of Schedule 2 which must prevail over it. In the absence of error such that the determination was a nullity for any of the reasons given by Lord Reid, or we would add, analogous reasons, it isl andlusive and cannot be questioned in the Courts whether it be right or wrong. #160;&#160 It fs that His Excellency&#ncy’s application should, with all respect, have succeeded and his appeal must be allowed.

This conclusion is sufficient to se ofamaloni’s appeal against the decision of 8 of 8 OctobOctober 1993 which must also be dismissed. However, having regard to the importance of the question for the future we are reluctant to leave any impression that His Excellency’s opinion may, although within his jurisdiction, have been incorrect. We shortr reasoneasons for for the view that it is indeed correct.

Section 144(1) of the Constitution provides that in that instrument, unless the context otherwise requires, “absolajori221; means at leat least onst one half of all the members plus one. It is the contention of Mr Mamaloni that this definition applies when a question arises under cl. 7(1) of Schedule 2 of the Constitution whether a candidate has received an absolute ity oes so as to be elected Prime Minister. &#160 Now ;Now apart trom definitfinition the word majority means simply the greater number or part. However, the Ctution guardsuards against the possibility that in a ballot contested by three or moreidateandidate might clht claim taim to be elected who obtained more votes than any other candidate, because in relation to each of the others he had a majority of votes. &#160dule 2, in the interesterests of stable government requires an overall or “absolute” majority, which is defined in the Australian Little Oxford Dictionary as “one over all rivals combined”. The ent omer J ar J at p. 4 p. 40 recognises this.

Now, of the nature of things, a dispute will arise only when the votes aree to y divided. If the House cos of an even even number of members and one one of thof the candidates receives one half of the votes, he has not received a majority. If he receives one half plus one, the votes received by his opponent or opponents must be or aggregate one half less one, giving him a majority of two. &#16 definition in s.144(1)44(1) makes no contribution to se rewhere there is anis an even even number of members, for any majority will be an absolute majority within the ordinary and natural meaof that phrase and indeed meed more.

If however the House consists of an uneven number of members, the closest to even division which is attainable is a division such that one candidate receives one more than the opponent (or the aggregate of his opponents) as occurred in this case. That candidate has an absolute majority over the other or others within the ordinary and natural meaning of that phrase, for no combination of opponents defeats him. But what is the quence of a of attempto inte the definition?tion?&#160 Put shorit isdiamediately fely found to be unworkable, for the simple reason that when the Hounsistan uneven number of members, the phrase one-half half of thof the members is humanly unattainable so that the least favourable result contemplated by the definition “at least one-half of all the members plus one” can never occur.

The question then arises whether the context requires the application of the definition in s.144(1) to cl. 7(1) of Schedule 2. We take the xt to be that phat provided by Schedule 2 and in particular cl. 7, a set of provisions for selecting the highest political officder, rime Minister, (a) by the votes of the members; (b) with mathematical certainty anty and sind simplicity; (c) under the chairmanship of a completely impartial person of the highest standing; and (d) with provision for a rapid and final resolution of any dispute on the subject in the interests of stable government. &#16emphasise the last fact factor. The Constitution did not intend this type of dispute to come before the Courts at all, if only because the time factors which are necessarily involved whitigann play play a part in protracting, necessarily creates an atmosphere of instabiliability inty in the Parliament and the Executive Government.

The introduction of the definition in s.144(1) makes no contribution when the House has an even number of members and in the case of an uneven number of members it is incapable of literal application and requires a gloss to round up the notional fractional one half member to the nearest whole number so that the minimal situation it actually postulates can never be achieved. One naturalllines to the vihe view that such a result, which in a House of 47 all present and voting would call for 25 votes or a majority of three over all others is inconsistent with the notion of a minimum overall majority as being sufficient and productive of the type of dispute which has occurred here. One is driven to the conclusion that the context requires that the definition not be applied in Schedule 2. The resull be anat any inst instability which may occur after aral eon will derive from the closeness of the electoractoral votl votes and the Prime Ministership will be in the hands of the Parliament e Contion intends it t it to be.o be.

There is another reason for concluding that the context requires the application of a definition other than that found in s.144(1) to the words “absolute majority" in cl. 7(1). &The latter speaks of an &#an “absolute majority of vote” and that that strongly suggests that the absolute majority required must be determiy reference to the votes cast by those present. #160;What consts an “8220;absolute majority” in accordance with the definition thereof in s.144(1) can only be determined by reference to the number representing “all the members”.҈Fat reason alone tone the dehe definition in s.144(1) cannot apply in the context of cl. 7(1). &#hroughout cls. 7 and 8 th 8 the expressions used are “absolute majority of votes” and “greater number of votes” and that clearly shows the number of votes required in order to secure election musn must be determined by reference to the number of votes cast and not to the number of members of Parliament.

It follows that the Governor-General’s appeal must be allowed with costs and that in lieu of the order pronounced on 21 September 1993 it should be ordered that the applications for certiorari and relief under s.83(1) be struck out as against the Governor-General. Mr Mamaloni’s appeal against the judgment of 8 October 1993 must be dismissed with costs.

BY THE COURT

P D CONNOLLY, P.