Governor General v Hilly [1994] SBCA 12; CA-CAC 10 of 1994 (29 October 1994)

IN THE SOLOMON ISLANDS COURT OF APPEAL
Civil Appeal No. 10 of 1994

IN THE MATTER of Sections 2, 30, 33(1), 76(b)
and paragraph 2 of Schedule 3 to the Constitution

BETWEEN:

GOVERNOR GENERAL OF THE SOLOMON ISLANDS
Appellant

AND:

FRANCIS BILLY HILLY
First Respondent

AND:

SPEAKER OF NATIONAL PARLIAMENT
Second Respondent

AND:

COMMISSIONER OF POLICE
Third Respondent

Before:
Connolly P.
Muria C.J.
McPherson J.A.

Delivered the Twenty-ninth day of October 1994

JUDGMENT OF THE COURT

A week ago today the Court of Appeal gave its judgment in Civil Case No. 299 of 1994 which had been commenced on 17 October 1994 by Originating Summons seeking certain declarations as to the powers of the Governor-General.

The questions raised by the Originating Summons were referred to the Court of Appeal by Palmer J. The Court (Connolly P., Williams and Los JJ.A.) declared that in the circumstances which obtained on 13 October last it was lawful for the Governor-General to direct the Speaker of the National Parliament to convene the Parliament as directed by the Governor- General in whatever form. The Court held that it was unnecessary to answer certain other questions which included the question whether it was lawful for the Governor-General to remove the Prime Minister from office on the basis that he had lost majority support outside the floor of Parliament.

We should have thought that it was obvious why we adopted that course. His Excellency had directed that the National Parliament be summoned to meet on 31 October, that is on Monday next. The machinery of s.34 of the Constitution can then be used to determine whether Mr. Hilly can survive a motion of no confidence. He has consistently asserted that he remains Prime Minister while the Governor-Genera claims to have exercised reserved or prerogative powers to remove him from that office. A vote of no confidence will conclusively establish what the position is and if Mr. Hilly does not survive the motion it will lead to an election to determine who has an absolute majority pursuant to s.34 of the Constitution. There was thus no point in determining whether the reserve or prerogative powers exist in Solomon Islands and whether they extend to the removal of a Prime Minister since, in circumstances such as these, it is sufficient that the National Parliament has been lawfully convened. As the Court declined to answer whether the removal of the Prime Minister was lawful it followed there was no basis for the declarations that were sought by the Originating Summons and they were not made.

Now on 25 October the same action, No. 299 of 1994, came before Palmer J. in the High Court. His Lordship says that the question before him was the correct interpretation and effect of the judgment of the Court of Appeal. He noted at page 10 that the Court of Appeal has purposely declined to rule whether Mr. Hilly had been lawfully removed or not; and at page 12 that the question remained unanswered. These statement are plainly quite correct.

This Court affirmed the power of the Governor-General to summon the Parliament. It did not rule on the validity of the removal by the Governor-General of the Prime Minister. The basis for that approach is correctly stated by Palmer J. at page 19 as being that when there is a workable and practical solution specially provided by the Constitution it is unnecessary, and we would add, unproductive, for the courts to embark upon academic dissertations. However Palmer J. was unfortunately ultimately persuaded, or perhaps persuaded himself, that he should make a declaration as follows: That if Mr. Hilly, the incumbent Prime Minister, refused to resign before the meeting of Parliament on 31 October he remained Prime Minister in terms described by the Court of Appeal until voted out on a motion of no confidence.

Now that is inconsistent with the decision of the Court of Appeal that that question did not in practical terms fall for decision and should not be decided. The people may wonder why we would not decide the point. It is a very strong step for us to decide, although it may possibly be correct, that the Constitution of this country is a not a full statement of the constitutional position and that there exist in reserve powers in the Governor-General to do things which ordinarily he has no authority to do whatever. We do not wish to embark upon making such a decision if there is a perfectly practicable solution available to the Parliament on Monday next - in two days time.

So we do not say that there is no such thing as reserve or prerogative powers in the Solomon Islands. The time to decide that is when there is no practicable solution available to the Parliament and we, or our successors here, can then determine just what is the range and ambit of that reserve power if it is held to exist. That is the reason for our approach. It is not an unwillingness to look at the point. It is simply that it is not wise to decide it until the occasion for deciding it strictly arises and there is no other sensible solution.

Now the declaration which was made is contrary to the decision of the Court of Appeal and it was unnecessary to answer that question. It now emerges that neither his Excellency the Governor-General nor the Attorney-General, on behalf of the first three plaintiffs, sought that declaration or seeks to support it now.

The High Court can under s.14 of the Court of Appeal Act refer a question in a matter before it to the Court of Appeal, retaining jurisdiction over the rest of the case. But when the Court of Appeal has the whole of the matter referred to it, and that is this case, no jurisdiction remains in the High Court to determine any part of it. If the Court of Appeal decides that it is not in the interests of Solomon Islands to decide one of the questions referred that does not mean that the High Court can decide it for itself.

In all the circumstances therefore the judgment and in particular the declaration made by Palmer J. must be set aside. The Parliament will deal with this situation when it convenes. There is no impediment if Mr. Hilly does not resign to a motion of no confidence. In case there should be any doubt we consider that the reference to the Prime Minister in s. 34 (1) of the Constitution includes a person in the position of Mr. Hilly. It is implicit in what we have said that the High Court should not have entertained the argument which led to the declaration.

There being no application for costs, no such or order will be made.

BY THE COURT
(P.D. Connolly P.)