Hilly v Governor-General of Solomon Islands [1994] SBCA 16; [1994] 2 LRC 27 (29 October 1994)

[1994] 2 LRC 27

COURT OF APPEAL OF SOLOMON ISLANDS

HILLY AND OTHERS

v

GOVERNOR-GENERAL OF SOLOMON ISLANDS
AND ANOTHER

Court of Appeal

(Connolly P, Williams and Los JJA)

21-22 October 1994
High Court

(Palmer J)

25-26 October 1994
Court of Appeal

(Connolly P, Muriah CJ and McPherson JA)

29 October 1994

(1) Constitutional law - Executive - Prime Minister - Elected by Parliament - Loss of parliamentary majority - Parliament not in session - Governor-General purporting to dismiss Prime Minister - Constitution providing for removal of Prime Minister only after defeat on no confidence motion - Whether court should rule on validity of Prime Minister's purported removal - Whether Governor-General still obliged to act on advice of Prime Minister - Constitution of the Solomon Islands 1978, s 33(1), 34(1), Sch 2.

(2) Constitutional law - Governor-General - Powers - Convening of Parliament - Whether direction to Speaker to convene Parliament valid - Whether reserve powers under prerogative so to act - Constitution of the Solomon Islands 1978, s 72(1).

(3) Constitutional law - Governor-General - Powers - Removal from office of Prime Minister - Whether Governor-General able to act on advice of Leader of Opposition - Constitution of the Solomon Islands 1978, s 31(1).

(4) Courts - Jurisdiction - Reference from High Court to Court of Appeal - Court of Appeal declining to rule - Whether High Court retaining jurisdiction to grant relief - Court of Appeal Act 1978, s 14.

After the general election in 1993 the first plaintiff was elected Prime Minister in June by 24 votes to 23 by the 47 members of Parliament pursuant to the procedure set out in Sch 2 to the Constitution. At a meeting in August 1993 the Governor-General, the first defendant and personal representative of the Head of State asked the plaintiff why Parliament had not been convened, to which the plaintiff responded that his party was not certain that it had the necessary strength to enact legislation and overcome a motion of no confidence planned by the Opposition, and that his options were either to delay calling Parliament indefinitely or resign. By the beginning of October 1994, Parliament not having sat since January, six members, including five ministers, had by the beginning of October left his party and the plaintiff wrote to the Governor-General that he did not have sufficient supporters to form a majority, the understanding between them being that in such a situation he would resign. When there was no sign of the plaintiff on the Governor-General's advice proposing to call Parliament, the Governor-General issued a warrant served by the Commissioner of Police purporting to remove the plaintiff from office, and also directing the Speaker of the National Parliament to summon Parliament to convene on 31 October. Having refused to step down the plaintiff, together with the Speaker of Parliament and the Commissioner of Police, the second and third plaintiffs, by originating summons in the High Court against the Governor-General and the Leader of the Opposition, sought determination of questions and declarations relating to the powers of the Governor-General to remove the first plaintiff from office. The matter was referred by the High Court directly to the Court of Appeal, pursuant to s 14 of the Court of Appeal Act 1978.

HELD: Questions answered as follows.

(1) The central feature of the structure of government under the Constitution of the Solomon Islands 1978 was majority rule. If the Prime Minister, elected pursuant to Sch 2 and not as in many countries selected by the head of state, lost the support of the majority of members of Parliament he might be defeated on a motion of no confidence passed by an absolute majority of votes. Only after such an event had occurred could the Governor-General remove him from office under s 34. However, a Prime Minister who refused to resign while conceding that he no longer enjoyed a parliamentary majority was not entitled to insist that the Governor-General could only carry out his functions on the Prime Minister's advice (see pp 31-32, 33, 34, 35, post).

Per Connolly P and Los JA. The question whether the first plaintiff had been validly removed from office by the Governor-General's warrant would appear to be academic and the court declined to answer it. If the first plaintiff remained in office it was as a Prime Minister who had forfeited his right to advise the Governor-General and such crisis would be solved where the Constitution intended it to be solved, viz. in the National Parliament (see pp 33-34, post).

(2) Since s 72(1) of the Constitution, together with Standing Order 7(3), vested the function of appointing the place and time of the holding of sessions of Parliament in the Governor-General, his order, made unilaterally, that the Speaker should convene Parliament on 31 October 1994 was lawful (see pp 33, 35, post).

Per Williams JA. If a Prime Minister without majority support in Parliament sought to continue governing without convening Parliament, the reserve prerogative powers would authorise the Governor-General to direct that Parliament be convened (see p 35, post).

(3) The Leader of the Opposition aright lawfully express an opinion that the Governor-General should cause the Prime Minister to step down or otherwise remove him from office outside the floor of Parliament, but he could not give advice within the meaning of s 31(1) of the Constitution (see p 34, post).

The matter returned to the High Court in respect of the declarations sought in the originating summons and costs.

HELD: Declaration granted that if the first plaintiff refused to resign before the meeting of Parliament on 31 October 1994, he remained the Prime Minister in terms described by the Court of Appeal until voted out on a motion of no confidence. No order for costs.

(1) It was an established practice for the courts, when interpreting questions of law concerning the Constitution, to treat the Constitution as a workable, practical and operable document. Where, therefore, an express provision provided a workable and practical solution, it was unnecessary for the courts to become entangled in lengthy treatises on the law or deal with points of mere academic interest. Since the Court of Appeal identified provisions in the Constitution which offered a solution to the current political impasse, it was unnecessary in the circumstances to decide whether the Governor-General had power to remove the Prime Minister from office, or whether, as representative of the head of state, he had reserve prerogative powers allowing him so to act. Accordingly, since the Governor-General's purported removal of the Prime Minister from office was deemed unnecessary because he could facilitate a solution by exercising his constitutional power of convening Parliament, it was a matter for Parliament to determine the political situation then. A declaration would be granted in the circumstances that, if the first plaintiff refused to resign before the date fixed for Parliament to convene, namely 31 October, he remained the Prime Minister as described by the Court of Appeal, until he was voted out on a motion of no confidence (see pp 44, 45, post).

On appeal to the Court of Appeal:

HELD: Declaration set aside. No order for costs.

(1) The basis of the court's decision not to rule on the validity of the Prime Minister's removal by the Governor-General was that, where the Constitution provided a practical and workable solution, it was unnecessary and unproductive for the courts to embark upon academic dissertations. Accordingly, the present case was not the occasion for the court to determine the existence, if any, ambit and range of reserve or prerogative powers vested in the Governor-General since the time for such judicial determination was when the matter arose strictly, and there was no other practical or sensible solution available to Parliament. Therefore the declaration granted by the High Court was contrary to the Court of Appeal's earlier decision, unnecessary and would be set aside (see pp 46-47, post).

(4) When, as in the present case, a matter had been referred, pursuant to s 14 of the Court of Appeal Act 1978, by the High Court and the whole case was before the Court of Appeal, the High Court no longer had jurisdiction to determine any part of it. Thus, if the Court of Appeal decided it was contrary to the interests of the Solomon Islands to determine one of the questions referred, the High Court was not entitled to determine that question itself (see p 47, post).

[Editors' note: The Constitution of the Solomon Islands, so far as material, provides by s 31(1):

'In the exercise of his functions ... the Governor-General shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet except in case where he is required by this Constitution to act in accordance with the advice of, or after consultation with, any person or authority other than the Cabinet . . .'

By s 33(1): 'There shall be a Prime Minister who shall be elected as such by the members of Parliament from amongst their number in accordance with the provisions of Schedule 2 to this Constitution.'

By s 34: '(1) If a resolution of no confidence in the Prime Minister is passed by Parliament by an absolute majority of the votes of the members thereof the Governor-General shall remove the Prime Minister from office . . . (3) The office of Prime Minister shall also become vacant (a) when, after a general election, the members of Parliament meet to elect a Prime Minister in accordance with the provisions of Schedule 2 to this Constitution; (b) if he ceases to be a member of Parliament for any reason other than a dissolution of Parliament; (c) if he is elected as Speaker or Deputy Speaker . . .'

By s 72(1): ' . . . , each session of Parliament shall be held at such place within the Solomon Islands and shall commence at such time as the Governor-General may appoint by proclamation published in the Gazette. . .'

By Sch 2: 'ELECTION OF PRIME MINISTER 1. As soon as possible after a general election of members of Parliament ... the Governor-General shall convene a meeting of members for the purpose of electing a Prime Minister by issuing to each member a notice stating - (a) the date, place and time of the election meeting ... 6. (1) The election meeting shall be presided over and the election conducted by the Governor-General ... 7. (1) If any candidate should at any ballot receive an absolute majority of votes he shall thereby be elected Prime Minister. . .'

Section 14 of the Court of Appeal Act 1978, so far as material, provides: . . . a judge of the High Court may reserve for consideration by the Court of Appeal ... any question of law which may arise on the trial of any cause or matter, and may give any judgment or decision, subject to the opinion of the Court of Appeal, and the Court of Appeal shall have power to hear and determine every such question.']

Cases referred to in judgments
Abe v Minister of Finance [1994] 2 LRC 10, SI SC
Speaker v Philip (App No 5/1990, unreported), SI CA

Legislation referred to in judgments
1994 Appropriation Act 1993, s 5(3)
Constitution of the Solomon Islands 1978, ss 31(1), 33(1), 34(1)(3), 72(1), 102 - 105, Sch 2
Court of Appeal Act 1978, s 14

Other sources referred to in judgments
Howard Australian Federal Constitutional Law (3rd edn, 1985) pp 123, 127 - 129
Standing Orders of the National Parliament of the Solomon Islands, 7(3), 36(3)

Reference

By an originating summons issued in the High Court the plaintiffs, the Prime Minister (the Hon Francis Billy Hilly MP), the Speaker of the National Parliament and the Commissioner of Police, sought against the defendants, the Governor-General (Moses Puibangara Pitakaka) and the Leader of the Opposition (Solomon Sunaone Mamaloni) questions and declarations concerning the first defendant's power to remove the Prime Minister from office. The High Court judge, Palmer j, referred the case to the Court of Appeal pursuant to s 14 of the Court of Appeal Act 1978. Following determination by the Court of Appeal of the questions raised in the summons, the case returned to the High Court in respect of the declarations sought. The High Court granted a declaration which was in turn appealed against to the Court of Appeal. The facts are set out in the judgments.

Attorney General for the plaintiffs.
R Teutao for the first defendant, the Governor-General.

22 October 1994. The following judgments were delivered.

CONNOLLY P and LOS JA. On 17 October 1994 an originating summons was issued by the plaintiffs against the defendants for declarations as to the powers of the first defendant as Governor-General of the Solomon Islands. The second a defendant is Leader of the Opposition. He has not appeared and does not wish to take any part in the proceedings. The plaintiffs are the Prime Minister elected pursuant to Sch 2 to the Constitution after the general elections of 1993, the Speaker of the National Parliament and the Commissioner of Police.

On 21 October the question of law arising on the hearing of the originating summons was referred to the Court of Appeal by Palmer J under s 14 of the Court of Appeal Act 1978 and the court, having regard to the high importance of the matter, proceeded immediately to hear and determine the questions raised, the Attorney General appearing for the plaintiffs and Mr Teutao of counsel for the Governor-General.

The circumstances out of which these proceedings arise may be shortly stated as follows. As a result of the general elections in 1993, the Hon Francis Billy Hilly MP on 18 June 1993 received 24 votes in the election for Prime Minister to 23 cast for his opponent. This court held this that was an absolute majority of the Parliament of 47 members for the purposes of Sch 2 to the Constitution. It was, none the less, the narrowest such majority possible and his position was obviously vulnerable to possible defections from his supporters. So it proved. The minutes of a meeting between the Governor-General and the Prime Minister of 31 August record that His Excellency questioned why Parliament had not convened and the Prime Minister's response was that his party was 'uncertain it had the necessary strength to pass legislation and defeat the no - confidence motion planned by the Opposition'. He acknowledged that he had only two options, to delay calling Parliament indefinitely or resign.

By the beginning of October 1994 six members including five ministers had left his party and on 2 October he gave His Excellency to understand that he would list his supporters and resign if he did not have a majority. This, in itself, suggested that he would not have survived a vote of no confidence had the Parliament been sitting: and in fact, on 5 October he informed His Excellency in writing that he no longer had the numbers, which was clearly an admission that this was the position. The House however had not sat since January. Had it been sitting and had a motion of no confidence been moved, he would have lost it and been obliged to resign pursuant to s 34 of the Constitution. His Excellency advised him to resolve the situation. His continued prevarication thereafter could only have signified (a) that there was no significant improvement in the level of support he could count on and (b) his determination to continue in office notwithstanding. The Attorney General argued that the Prime Minister is proposing to call Parliament together in November but in the light of the history of this matter that cannot necessarily be guaranteed.

The implications are so serious that the circumstances can properly be described as extreme when coupled with the decision of the High Court on 4 October 1994 in Abe v Minister of Finance [1994] 2 LRC 10 that the Hilly Government has borrowed millions of dollars in excess of parliamentary authorisation, in breach of s 105 of the Constitution.

The central feature of the structure of government under the Constitution of the Solomon - Islands is majority rule. The Prime Minister is elected by the procedure set out in 2, a procedure conducted by the Governor-General to identify the candidate with an absolute majority. He is not, as in many countries, including the United Kingdom, selected by the head of state. Should he lose the support of the majority of Parliament he may be defeated on a motion of no confidence passed by an absolute majority of votes whereupon the Governor-General is required to remove him from office: s 34. Indeed this court in the Speaker v Philip (App No 5/1990, unreported) gave as a reason for limiting the application of Standing Order 36(3), which was said to deny the right to move a motion of no confidence, that if interpreted literally it could result in a government without a majority remaining in office for a long period when it no longer had popular support. The court said:

'The result could be that the mechanism provided by the Constitution for the removal of a Government may become inoperative, and even a Government which does not have the confidence of the House may continue in an unchallenged position for many months. In our judgment, such a conclusion would be quite unsatisfactory and inconsistent with the principle for which Mr Nori strongly and, as we think, rightly contended, that is, the principle of majority rule in a Parliament democracy. Mr Nori pressed us with the proposition that it is our duty to interpret the Constitution in a way which advances rather than impedes the principles of majority Government.'

His Excellency, in his Speech to the Nation on 17 October 1994 was, in our judgment, correct in saying '[t]he democratic principle of "government by majority rule" forms the bedrock of our constitutional system'. This position reflects the British practice of identifying the Prime Minister by his leadership of the majority party or political grouping in the House of Commons, although, of course, the Constitution of the Solomon Islands does not give to the Governor-General the function of identifying the candidate with majority support but substitutes the electoral procedure set out in Sch 2.

Professor Colin Howard in Australian Federal Constitutional Law (3rd edn, 1985) at p 123 describes leadership of the majority as the criterion for identification of the Prime Minister and goes on:

'It is a cardinal feature of both British and Australian parliamentary government and has the strength of many centuries of British, and more latterly Australian, constitutional development behind it. The legitimacy of this criterion of the right to govern derives from its being an expression of the opinion of a majority of the governed. It is a practical principle of government . . .'

The implications of this feature of Australian parliamentary government are discussed at pp 127 et seq. At p 128 Professor Howard commences an analysis of a possible situation in which a Prime Minister loses the support of his own party and accepts the loss of leadership but instead of resigning advises the Governor-General to call an election. While that is a more extreme form of loss of support, it is not radically different from loss of sufficient support to destroy a Prime Minister's control of the House. Of it Professor Howard observes (at pp 12& - 129):

'The Governor-General is entitled to decline to do so [call an election] and to request the Prime Minister's resignation instead because he is no longer leader of the governing party. Because he is no longer leader of the governing party he has lost his qualification for office as Prime Minister. It follows that he is under a duty to vacate that office. It follows further that if he refuses to perform that duty he is obstructing the Governor-General in the obligatory performance of his own duty, which is a fundamental constitutional imperative, to commission as Prime Minister the leader of the political grouping which commands a majority in the House of Representatives. At this point it can be seen that whether the Prime Minister has sought to avoid the issue by not giving the Governor-General any advice at all, or has accepted the situation up to a point and advised a dissolution, the Governor-General is in precisely the same position. He is dealing with a Prime Minister who has lost his qualification to hold that office. The position of the Prime Minister himself should be understood with precision too if the proper operation of the advice principle is to be appreciated. He is not entitled to reverse the argument and claim that because he is Prime Minister it is his advice that the Governor-General must listen to. The criterion of his qualification to be Prime Minister is fundamental. His personal occupancy of that office is only a temporary consequence of the application of the criterion and cannot outlive its relevance. It follows that if the Prime Minister refuses to relinquish his office, it is the duty of the Governor-General to dismiss him. This does not depend on any element whatever of personal discretion in the Governor-General. Neither does it depend on any extraneous doctrine of the unworkability of Parliament or the Governor-General being some sort of constitutional overlord who is there to see that everyone else obeys the rules. It is a simple question of the Governor-General being under a fundamental and unavoidable duty to choose as Prime Minister the person which entrenched constitutional principle identifies as entitled to that office. Any attempt to prevent his fulfilling his duty is unlawful in the sense that it goes beyond the authorities conferred by the constitution. It is a constitutional nullity. In dismissing the Prime Minister and commissioning another one under such circumstances the Governor-General is doing no more and no less than he is bound to do. The dismissal is no more than the operation of the formal machinery supplied for recognition of the constitutionally relevant facts.'

What differentiates Australian constitutional practice from that of the Solomon Islands is that dismissal of a Prime Minister by the Governor-General is provided for only in s 34, that is, after his defeat on a motion of no confidence. The Attorney General argues strongly that this is an exclusive provision. Whether this proposition is right for all circumstances can await another day. What at least is established, ii our judgement, is that a Prime Minister who hangs on to office while conceding that he has no majority is in no position to insist that the Governor-General’s functions can only be exercised on his advice.

Section 72(1) vests in the Governor-General the function of appointing the place and time of the holding of sessions of Parliament. His Excellency has ordered the Speaker to convene the National Parliament on Monday 31 October next. In the circumstances there can be no doubt about the validity of that order. The question whether the first plaintiff has been validly removed from office would appear to be academic. If he remains in office it is as a Prime Minister who has forfeited his right to advise the Governor-General and this crisis will be solved a where the Constitution intends it to be solved - in the National Parliament.

The questions asked of us and our answers are as follows:

Q1. Whether it is lawful for the Leader of the Opposition to advise the Governor-General to cause the Prime Minister to step down or otherwise remove him from office outside the floor of Parliament.

A1. The Leader of the Opposition may lawfully express such an opinion but he can give no advice within the meaning of s 31(1) of the Constitution.

Q2. Whether it is lawful for the Governor-General to act on the advice of the Leader of the Opposition to remove the Prime Minister from office outside the floor of Parliament.

A2. See answer to Q1.

Q3. Whether it is lawful for the Governor-General to remove the Prime Minister from office on the basis that he has lost majority support outside the floor of Parliament.

A3. Unnecessary to answer.

Q4. Whether it is lawful for the Governor-General unilaterally to direct the Speaker of the National Parliament to convene Parliament as directed by the Governor-General in whatever form.

A4. Yes, in the circumstances which obtained on 13 October 1994.

Q5. Whether it is lawful for the Governor-General to direct the Commissioner of Police to execute the warrant signed and issued on Thursday, 13 October 1994.

A5. Unnecessary to answer.

We find it unnecessary to discuss the existence and extent of the reserve powers of the Governor-General. Although there was no extensive argument on the point it would seem that His Excellency should not have been sued in his personal name but in that of his office.

WILLIAMS JA. The Constitution of the Solomon Islands is unique in that the Prime Minister is not appointed by the Governor-General but is elected by the members of Parliament in accordance with s 341 and Sch 2 to the Constitution. The Governor-General express power to remove a Prime Minister with respect to whom Parliament has passed a vote of no confidence.

It is argued that because of that express provision there is no reserve power in the Governor-General to remove a Prime Minister no matter what the circumstances.

No problem will arise when Parliament is meeting regularly. Indeed it could be said that the Constitution is predicated on the assumption that Parliament would meet regularly. But unfortunately there is no constitutional requirement for it to do so. It should meet at least once a year to pass an Appropriation Act (see ss 102, 103 and 104), but the Constitution itself does not provide any remedy or sanction if the government should act unconstitutionally and not convene Parliament for that purpose.

The calling of meetings of Parliament is dealt with by s 72 of the Constitution and it is also provided for in Standing Order 7 of the Standing Orders of the National Parliament of the Solomon Islands. Paragraph (3) thereof is of significance for present purposes.

Parliament has not met since January 1994 and the Prime Minister has conceded in discussion with the Governor-General, if not publicly, that he does not enjoy the support of a majority of members of Parliament. He remains hopeful that delay in support calling Parliament will enable him to muster further.

The Prime Minister has taken steps to have Parliament convene on 18 November but there is no certainty that will occur. The Governor-General is concerned that even if Parliament met on 18 November certain constitutional problems may not be overcome. If the Prime Minister lost a vote of confidence on that date there would have to be an election of a new Prime Minister and the swearing in of a new Cabinet before the new government could direct its attention to appropriation for 1995. It is unlikely that could occur before 31 December 1994. That is of particular importance because of the finding by Muria CJ in Abe v Minister of Finance [1994] 2 LRC 10 that the present government has contravened the provisions of s 5(3) of the 1994 Appropriation Act 1993 by borrowing the sum of $31.072m which sum is in excess of the $21 m stipulated in the first column of Sch 2 to the Act without first obtaining further authority from Parliament.

Given that Parliament has not met since January 1994, that the incumbent Prime Minister does not have (and has not had for some time) majority support in Parliament and that the government has been borrowing money unlawfully there is presently a constitutional crisis which demands the immediate recall of Parliament.

In the circumstances, in my view, the Governor-General has the power under s 72 of the Constitution and Standing Order 7(3) to direct that Parliament convene on a specified date. If that is not the correct interpretation of those provisions, I would be prepared to hold that he was entitled to do so pursuant to a reserve power vested in the Governor-General. If a Prime Minister without majority support in Parliament sought to continue governing without convening Parliament I am of the view that the reserve prerogative powers would authorise the Governor-General to direct that Parliament be convened.

Subject to what I have written I agree with all that has been said by Connolly P and with the answers he proposes to the questions posed.

PALMER J. On the morning of 13 October 1994 a warrant purporting to remove Francis Billy Hilly, member of Parliament for Ranongga and Simbo, from the office of Prime Minister and leader of Her Majesty's government was issued by the Governor-General of the Solomon Islands, Moses Puibangara Pitakaka, and served on Mr Hilly by the Commissioner of Police. On receipt of the order, Mr Hilly labelled the document as 'unconstitutional' and refused to step down. The learned Attorney General called it a 'worthless piece of document'. This was consistent with the advice that he had previously given to the Governor-General when he had been asked by the Governor-General on or about 11 October 1994, directing him to draft a suitable order that would provide for the removal of Mr Hilly as Prime Minister, and he had advised the Governor-General to the contrary.

The terms of the order in full read:

'TO: Hon Francis Billy Hilly MP Prime Minister

Office of the Prime Minister

PO Box G1

HONIARA.

ORDER OF REMOVAL OF THE HON FRANCIS BILLY HILLY MP FROM THE OFFICE OF PRIME MINISTER AND LEADER OF GOVERNMENT

I, MOSES PUIBANGARA PITAKAKA, Governor-General of the Solomon Islands and Personal Representative of Her Majesty the Queen, the Head of State of the Solomon Islands, hereby under the oath of my office sign this Warrant for the removal of Hon Francis Billy Hilly MP for Ranongga and Simbo, from the Office of Prime Minister and Leader of Her Majesty's Government, effective from 1000 hrs Thursday 13th October, 1994 in the year of our Lord. This order was made for the following reasons: (a) Hon Francis Billy Hilly MP, the Prime Minister no longer enjoys the majority support of Members of Parliament in accordance with section 33(1) of the Constitution; (b) To allow him to perform the function of the Office of the Prime Minister and leader of Her Majesty's Government would be in direct violation of the provisions of the Constitution referred to (a) above. Therefore as custodian of the Nation's Constitution, I can no longer allow Hon Francis Billy Hilly MP and the Executive Authority in government to continue in office without the mandate as stipulated in section 33(1) of the Constitution. Accordingly therefore as Governor-General of the Solomon Islands and personal representative of Her Majesty the Queen, the Head of State of the Solomon Islands, sign the order for the immediate removal of the Hon Francis Billy Hilly MP from the Office of the Prime Minister and from the executive function of Her Majesty's Government for he no longer has the mandate to continue to exercise executive power in Government over the people of the Solomon Islands in accordance with the Constitution.

I, MOSES PUIBANGARA PITAKAKA, Governor-General of the Solomon Islands, act in the name and on behalf of Her Majesty the Queen, the Head of State of the Solomon Islands and in accordance with sections 2, 30, 33(1) and 76(b) as read with section 2 of Schedule 3 to the Constitution, hereby made this order accordingly. I further order the Commissioner of Police and all members of the Disciplined Forces for which I am the Commander - in - Chief to ensure that this order is carried out and complied with in the Name and on behalf of Her Majesty the Queen, the Head of State of the Solomon Islands. I further order the Speaker of the National Parliament to summon the National Parliament to convene on Monday 31st October, 1994 to elect a new Prime Minister. This order became effective immediately. Given under my hand this 13th day of October 1994.

MOSES P PITAKAKA

Governor-General'

Shortly after the order had been issued and served on the incumbent Prime Minister, the terms of the order were then released to the media, for publicity to the nation of the Solomon Islands. The reactions of the people of the Solomon Islands may perhaps be described as mixed. For the more legally orientated, the question thrashed around was whether the Governor-General had the power to do what he did under the Constitution, the supreme law of this nation, and if not, whether, he had some other reserve powers to validate the actions that he had taken. This subsequently formed the gravament of the list of questions raised by the learned Attorney General for determination in an originating summons filed on 17 October 1994 before this court. The questions posed read as follows:

(1) Whether it is lawful for the Leader of the Opposition to advise the Governor-General to cause the Prime Minister to step down or otherwise remove him from office outside the floor of Parliament;

(2) Whether it is lawful for the Governor-General to act on the advice of the Leader of the Opposition to remove the Prime Minister from office outside the floor of Parliament;

(3) Whether it is lawful for the Governor-General to remove the Prime Minister from office on the basis that he has lost majority support outside the floor of Parliament;

(4) Whether it is lawful for the Governor-General to unilaterally direct the Speaker of the National Parliament to convene Parliament as directed by the Governor-General in whatever form; and

(5) Whether it is lawful for the Governor-General to direct the Commissioner of Police to execute the warrant signed and issued on Thursday 13 October 1994. On Friday 21 October 1994 this court referred the questions of law posed in the originating summons to the Court of Appeal, which happened to be in session in that week. This was done pursuant to s 14 of the Court of Appeal Act 1978. On the same date the learned Justices of Appeal convened to deliberate over the questions of law referred. Their judgment was delivered on the next day, 22 October 1994. Apart from the determinations of law raised in the originating summons, the learned Attorney General also sought declarations as follows:

'(i) Moses Puibangara Pitakaka, Governor-General of the Solomon Islands, has no power under the Constitution to lawfully remove Francis Billy Hilly from Office as Prime Minister outside the floor of Parliament;

(ii) the Warrant signed and issued by the said Moses Puibangara Pitakaka as Governor-General dated 13th October, 1994 and served upon Francis Billy Hilly as Prime Minister on the morning of Thursday 13th October, 1994 is ultra vires the powers of the Governor-General under the Constitution and is therefore null and void.'

The facts in the case are essentially not in dispute. The affidavit of Francis Billy Hilly filed on 17 October 1994, the affidavit of Frank Ofagioro Kabui filed on 18 October 1994 and the affidavit of Moses Puibangara Pitakaka filed on 22 October 1994 are all in agreement as to the events leading up to the order of removal issued by the Governor-General.

The crucial issue before this court therefore is whether, in the light of the Court of Appeal's ruling, the declarations prayed for should be allowed or not. The second issue to be determined is, simply, the question of costs.

The pertinent question of law raised in the originating summons which directly impinges upon both declarations sought is para (a) (iii) of the originating summons. This was the question asked: whether it is lawful for the Governor-General to remove the Prime Minister from Office on the basis that he has lost majority support outside the floor of Parliament. Some confusion, I think, has been engendered by the answer of the Court of Appeal, which read 'Unnecessary to answer'. What did this mean? Was it unnecessary to answer, because the answer to that question was too obvious to mention, or was it unnecessary because in the circumstances it was inappropriate? Two opposing and quite attractive arguments have been posed before this court. The learned Attorney General's approach commences with the relevant provisions of the Constitution and matching them with the relevant parts of the Court of Appeal's judgment. Mr Teutao's approach commences with the Governor-General's order of 13 October 1994 and matching that with the relevant provisions of the Constitution and the relevant parts of the Court of Appeal's judgment.

I prefer the first approach, because at the end of the day it is what the Constitution, the Supreme law of this nation, says that must prevail, with respect, over and above what the Governor-General's order might say, and even over and above what the Court of Appeal and this court may say. The law remains constant, but orders vary and change according to the requirements and circumstances of each case.

Secondly, the relevant parts of the judgment of the Court of Appeal must be read in the context of the whole judgment.

The applicable provisions of the Constitution are not in dispute. They are s 33(1) and Sch 2 to the Constitution, which deals with the set up of the office of Prime Minister and the procedure for electing a new Prime Minister; s 34, which deals with the question of a motion of no confidence, and at subs (3) other instances in which the office of the Prime Minister shall become vacant; and s 72(1) which deals with the function of the Governor-General to appoint the place and time when each session of Parliament shall commence.

What is in dispute is the correct interpretation and effect of what the Court of Appeal has stated in its judgment. For purposes of analysis, I will start at pp 31-32, ante, where the Court of Appeal stated:

'The central feature of the structure of government under the Constitution of the Solomon Islands is majority rule. The Prime Minister is elected by the procedure set out in Sch 2, a procedure conducted by the Governor-General to identify the candidate with an absolute majority. He is not, as in many countries including the United Kingdom, selected - by the head of state. 'Should he lose the support of the majority of Parliament he may be defeated on a. motion of no confidence passed by an absolute majority of votes whereupon the Governor-General is required to remove him from office: s 34.'

The first important point to note about this quotation is the distinction it draws with other countries in how a Prime Minister in the Solomon Islands is elected by Parliament as posed to being selected by the head of state. The suggestion or hint that this distinction it seems to portray is that, usually, the person who hires you is the person who also usually has the right, or the power, to fire you. So if Parliament elects the Prime Minister, then it is Parliament that is the lawful person or body to dismiss the Prime Minister, as provided for in s 34 of the Constitution. This appears to be the brunt of the learned Attorney General's submission as commented upon by the Court of Appeal at p 33, ante. However, I raise this as an aside, conscious of the comments of their Lordships at the same page, that this question can await another day.

At pp 31-32, ante, the Court of Appeal again highlights the distinctive electoral procedure set out in Sch 2 to the Constitution in the election of a Prime Minister, as opposed to the British parliamentary practice of orentiing the Prime Minister by his leadership of the majority or political grouping in the House of Commons

At pp 32-33, ante, the court referred to the writings of Professor Colin Howard in Australian Federal Constitutional Law (3rd edn, 1985), in which the learned author described the circumstances (which are quite similar to the facts of this case) in which the Governor-General is able to dismiss the Prime Minister. At p 33, ante, the Court of Appeal, however, stated:

'What differentiates Australian constitutional practice from that of the Solomon Islands is that dismissal of a Prime Minister by the Governor-General is provided for only in s 34, that is, after his defeat on a motion of no confidence. The Attorney General argues strongly that this is an exclusive provision. Whether this proposition is right for all circumstances can await another day.'

The above quotation needs a little bit of elaboration to be able to appreciate fully the true import of what has been stated, because it is my view that therein lies the crucial answer to the crucial question of law raised, and goes to answer in part the question, whether the declarations sought above should be granted or not.

The crucial submission of the learned Attorney General, as I understand it, is that s 34 of the Constitution sets out in black and white all the circumstances within which the office of the Prime Minister becomes vacant: (i) where a successful motion of a resolution of no confidence in the Prime Minister is passed by Parliament by an absolute majority of the votes of the members of Parliament and has been removed by the Governor-General; (ii) immediately after a general election, when the members of Parliament - meet to elect a Prime Minister in accordance with the provisions of Sch 2 to the Constitution (s 34(3) (a)); (iii) if he ceases to be a member of Parliament, other than by a dissolution of Parliament (s 34(3)(b)); (iv) if he is elected as Speaker or Deputy Speaker (s 34(3)(c)); and (v) if he resigns such office by writing under his hand addressed to the Governor-General (s 34(3)(c)).

The submission of the learned Attorney General is that that list in s 34 is h exhaustive. Apart from s 34, there is no other provision in the Constitution whereby the Governor-General is authorised to do what he did in the circumstances prevailing as at 13 October 1994. In other words he had no power under the Constitution, including any reserve powers that he may claim to be possessed with, to remove the incumbent Prime Minister from office.

The answer of the Court of Appeal to this proposition is very clear. It must await another day! What does this mean? It simply means indirectly that the learned judges of the Court of Appeal had purposely declined to make any ruling on the crucial question of law posed before it. But before hasty criticism is made, one needs to ponder carefully what was said in the next sentence and the subsequent paragraph at p 33, ante. The very next sentence reads:

'What at least is established, in our judgment, is that a Prime Minister who hangs onto office while conceding that he has no majority, is in no position to insist that the Governor-General's functions can only be exercised on his advice.'

To get a proper understanding of the meaning of the above sentence, it must be related to the provisions of s 31(1) of the Constitution, in the first part, which reads:

'In the exercise of his functions under this Constitution or any other law, the Governor-General shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet. . .' (My emphasis.)

One of the clear functions of the Governor-General is as spelled out in s 72(1) of the Constitution.

Now coming back to the sentence quoted in the judgment of the Court of Appeal at p 33, ante, it is also vital to be able to get a proper understanding of it, to read it together with the very next paragraph in the judgment. It commences as follows:

'Section 72(1) vests in the Governor-General the function of appointing the place and time of the holding of sessions of Parliament.'

Now, keeping in mind what had been said in the preceding sentence in the preceding paragraph, what the Court of Appeal was saying in effect was:

'What at least is established, in our judgment is that a Prime Minister who hangs onto office while conceding that he has no majority is in no position to insist that the Governor-General's functions [specifically, the function vested in the Governor-General of appointing the place and time of the holding of sessions of the Parliament] can only be exercised on his advice.' (My emphasis.)

The above is clearly what has been established in the judgment of the Court of Appeal. The court then continued (at p 33, ante): 'His Excellency has ordered the Speaker to convene the National Parliament on Monday 31 October next'. It does not continue on to say 'to elect a new Prime Minister' as stipulated in the order of the Governor-General. That is perfectly correct for the simple reason that he does not have the power under s 72(1) to dictate to Parliament what business and order of business is to be deliberated upon by the House. Section 72(1) simply gives him the power to convene Parliament at such time and at such place as he may by proclamation appoint as published in the Gazette or, as has been indorsed in the Court of Appeal's judgment, by way of an order directing the Speaker to convene Parliament on 31 October 1994.

I do note, however, that in the circumstances where the office of the Prime Minister had become vacant, then it is a matter of fact that on the first sitting of Parliament it will have to elect a new Prime Minister. I do note also that the view of the Governor-General is that the office of the Prime Minister had become vacant as a result of his order.

What was therefore meant by the court when it said that '[i]n the circumstances there can be no doubt about the validity of that order'? The answer is found in the preceding sentence, in which the court had stated 'His Excellency has ordered the Speaker to convene the National Parliament on Monday, 31 October next'.

If, as contended by Mr Teutao, the order in toto was the order which the court had stated was valid, then that must necessarily be based on the assumption that the order of removal of Mr Hilly was also valid, lawful and proper. However, we have seen in the preceding paragraph that the Court of Appeal had declined to make a ruling on that issue. The question, therefore, as to whether Mr Hilly had been lawfully removed remains unanswered. It does not follow then, in my view, to assert that the order in toto was what was declared to be valid by the Court of Appeal. The contextual interpretation of those statements favour more the view that it was simply the summoning of Parliament to meet on 31 October 1994 that was declared by the d Court of Appeal to be valid.

One of the submissions raised by Mr Teutao before this court relates to the way in which Question 4 was worded and the answer of the court to that question.

'Q4. Whether it is lawful for the Governor-General unilaterally to direct the Speaker of the National Parliament to convene Parliament as directed by the Governor-General in whatever form.'

Mr Teutao seeks to submit that the term 'in whatever form' must mean the form in which the order had been couched, specifically, that Parliament be convened to elect a new Prime Minister, which would imply that the sacking had been valid. And the answer of the court was 'Yes, in the circumstances which obtained on 13 October 1994'. That answer, he says, must imply that the whole terms of the order were valid. This is quite an attractive argument. However, it has been made out of the context in which the court had stated emphatically and clearly what the functions of the Governor-General, as specifically provided for under s 72(1) of the Constitution, were.

Section 72(1) of the Constitution simply gives the Governor-General power to summon Parliament on the advice of the Prime Minister, but in the extreme circumstances prevailing on 13 October 1994 he was no longer obliged to do so. It does not give him the power to sack the Prime Minister. To say that s 72(1) of the Constitution gives the Governor-General power to sack the Prime Minister is anathema to the Constitution. On that simple analysis, it cannot be used to support the contention that the Prime Minister therefore had been deemed sacked, pursuant to the order of the Governor-General made under s 72(1) of the Constitution.

This view is supported strongly by the opinion of the third member of the Court of Appeal, Williams JA. He states (at p 35, ante):

‘In the circumstances, in my view, the Governor-General has the power under s 72 of the Constitution and Standing Order 7 (3) to direct that Parliament convene on a specified date. If that is not the correct interpretation of those provisions, I would be prepared to hold that he was entitled to do so pursuant to a reserve power vested in the Governor-General. If a Prime Minister without majority support in Parliament sought to continue governing without convening Parliament I am of the view that the reserve prerogative powers would authorise the Governor-General to direct that Parliament be convened.'

What the Court of Appeal clearly saw as the confusing factor in the whole episode was whether the Governor-General had the power to summon Parliament so that the resolution of a motion of no confidence can be raised in the House against the Prime Minister. Had the Governor-General known that in the circumstances prevailing, specifically on 13 October 1994, but which had been dragging on for some time, as early as the beginning of the month, then he could perhaps have invoked his powers under s 72(1) to summon Parliament at an earlier date to solve the crisis early.

What is clear from his Lordship's judgment is that nowhere does he say or even hint that the sacking was valid, lawful and constitutional. He also did not say that the power under s 72(1) included the power to sack. There was no mention too that the convening was for the purpose of electing a new Prime Minister. The omission is not by coincidence. It simply reflects, in my view, the correct construction of the functions of the Governor-General as specified under s 72(1) of the Constitution.

This then raises the question as to what was meant by the court when it stated immediately after '[t]he question whether the first plaintiff has been validly removed from office would appear to be academic'. Why would it appear to be academic? The reason, in my view, is because there is an answer or solution within the express provisions of the Constitution which the Court of Appeal was satisfied with, and which will meet the political impasse between the parties head - on. That solution is, as has already been outlined - that the Governor General had the power, in the circumstances, to summon Parliament, contrary to the advice of the Prime Minister under s72(1) of the Constitution. What this simply meant is that by having Parliament called T& r the political crisis can then be solved in the floor of Parliament, by way of a motion of no confidence on the incumbent Prime Minister. This is why in the very next sentence the court stated (at pp 33 - 34, ante):

'If he remains in office it is as a Prime Minister who has forfeited his right to advise the Governor-General and this crisis will be solved where the Constitution intends it to be solved - in the National Parliament.'

This brings me to raise the question 'what were the circumstances which obtained on 13 October 1994?' These were: (i) the Prime Minister no longer had the support of the majority of the members of parliament, and despite conceding this fact; (ii) he refused to resign and convene parliament as soon as possible, despite being asked to do so; and (iii) after being advised by the Governor-General that he would no longer take advice from him (the Prime Minister), he still refused to resign.

In those circumstances, under s 31(1) of the Constitution, which required that in the exercise of his (Governor-General's) functions he shall act in accordance

'If he remains in office it is as a Prime Minister who has forfeited his right to advise the Governor-General and this crisis will be solved where the Constitution intends it to be solved - in the National Parliament.'

Let me break down this sentence into several parts. The first part is: 'If he remains d in office'. It is common knowledge and a fact that has not been disputed (though I do note that the Governor-General might think otherwise) that the incumbent Prime Minister has not resigned and therefore, as far as he is concerned, he still remains in office. Bearing in mind that the Court of Appeal had categorically refused to make a ruling as to the lawfulness of the actions of the Governor-General in purporting to remove Mr Hilly from office, the second part of the sentence goes on to say 'it is as a Prime Minister who has forfeited his right to advise the Governor-General'. So by remaining in office and refusing to resign as would normally have been expected, he remains in office as a Prime Minister whose advice may no longer be accepted and acted upon by the Governor-General. It, however, does not necessarily follow that in those circumstances the Governor-General was entitled to dismiss or remove the Prime Minister, or that the fact that he had purported to do so was valid. He may have the power to do that or he may not. The Court of Appeal has simply refused to rule on that question, it being unnecessary. I will say something later on why I believe that the Court of Appeal ruled in that manner. But coming back to the third part of the sentence which reads 'and this crisis will be solved where the Constitution intends it to be solved - in the National Parliament'. What crisis is being referred to by their Lordships in. their judgment? Let us take first the interpretation propounded by Mr Teutao. Assuming that when the court stated that the order directing the Speaker to convene Parliament was valid, and that it meant that Parliament was to be convened for the sole and specific purpose of electing a new Prime Minister, and that therefore impliedly the court was saying that the sacking of the Prime Minister on 13 October 1994 was valid, what crisis then was the Court of Appeal referring to that will be solved in the National Parliament? If the sacking of 13 October 1994 was valid, then it seems that the crisis is basically over. All that Parliament will do when it convenes on 31 October 1994 is to elect a new Prime Minister in accordance with Sch 2 to the Constitution. There would appear to be no crisis to solve on 31 October 1994. Rather, it is my view that the crisis referred to within the contextual meaning of the preceding i sentences, paragraphs and the totality of the judgment, is the current crisis that still subsists, where the Prime Minister has refused to resign in circumstances where he ought to resign to pave the way for Sch 2 to the Constitution to be activated. In those circumstances the proper course of action to be taken by the Governor-General is to summon Parliament to pave the way for a motion of no confidence to be moved against the Prime Minister, as expressly provided for by the Constitution, and to allow Parliament to solve the political crisis 'where the Constitution intends it to be solved'.

The assumption or the interpretation propounded by Mr Teutao that the ruling by the Court of Appeal was to validate the order of the Governor-General in toto, with respect to the direction to the Speaker of National Parliament, in order to be valid, must necessarily be subject to the validity of the order to remove Mr Hilly from office. But all that has been submitted in support of that proposition is that it is to be implied from the ruling of the Court of Appeal. That is not good enough. The foundation must be firm, before anything else can be built on it, and not merely based on some implied statements or conclusions. The order in toto to the Speaker should stand on the initial order to remove the Prime Minister and not vice versa.

However, what is very clear, as earlier stated, is that the learned justices of Appeal have declined to make a ruling on the validity of the sacking of Mr Hilly from office.

I will now turn to address the question as to what in effect was meant by their lordships when answering the crucial question of law posed (Q3) as 'unnecessary to answer'. The answer lies, in my view, in how the Court of Appeal and this court have consistently stated in previous cases, when dealing with questions of law arising from the interpretation of the Constitution, that the Constitution is a workable, practical and operable document. Where there is a workable and practical solution expressly provided for in the Constitution then it is unnecessary for the courts to get tangled up in lengthy treatises on the law or mere academic pursuits.

The Court of Appeal had identified a mechanism within the express provisions of the Constitution in which a practical solution to the political impasse can be solved. And true to the approach that it had consistently upheld and followed, in the circumstances it was unnecessary for it to say whether the actions of the Governor-General in sacking the Prime Minister were lawful under the Constitution or under whatever reserve powers that he may possess as the representative of Her Majesty, the head of state of the Solomon Islands. That million dollar question must remain unanswered until such time as the court should deem it appropriate to consider, if ever that opportunity will again arise.

Where does this leave the, actions of the Governor-General in purporting to sack the incumbent Prime Minister from office, and which it seems he firmly believes was valid, lawful and constitutional? Although the questions as to its validity, lawfulness and constitutionality must remain in suspense, the questions as to its effectiveness it seems, in my view, may be noted, hopefully for purposes of clarification. I do note that I have to be wary in what I say because it may be interpreted wrongly. For instance, if I say that the order of removal is ineffective against a stubborn Prime Minister, as a result of the way the Court of Appeal had ruled, that does not necessarily mean that the order was invalid, unlawful or unconstitutional. All it means is that the order is neither here nor there and if a that still causes confusion then we can simply conclude that both are entitled in the circumstances of this case, and from the way the Court of Appeal has ruled, to take the stance or the positions that they have adopted since 13 October 1994 until the present time, and right up until 31 October, when Parliament can then convene to solve the crisis on a vote of no confidence as expressly provided for under the Constitution. If the above is still confusing, then let me put it in another way. The actions of Mr Hilly in refusing to resign in the circumstances prevailing at the beginning of the month of October 1994 were unusual, unexpected, perhaps umpon with the advice of the Prime Minister as to when and where Parliament shall be convened, he (the Governor-General) was no longer obliged to accept the advice of the Prime Minister as to when Parliament shall be convened, which advice had been to convene Parliament on 18 November 1994. Those peculiar circumstances necessitated the actions of the Governor-General to direct that Parliament be convened at an earlier date, on 31 October 1.994, in defiance of the Prime Minister's advice. That was the only order that the court was prepared to say in its judgment was valid. It did not say that the removal of Mr Hilly from office was valid.

The final sentence is also of equal importance. The correct interpretation of it can only be obtained if it is read in the context of what had been stated earlier on. Once again it reads:

litical, and may be unconstitutional. It was therefore most natural for the Governor-General to be agitated by that back - pedalling. His subsequent actions, however, in purporting to sack the incumbent Prime Minister as far as the Court of Appeal was concerned, were unnecessary, because there is clear provision in the Constitution in which the Governor-General had the requisite power to facilitate the solution of the crisis. And now that that power had been invoked pursuant to the order to convene Parliament on 31 October 1994, it must be allowed to take its normal course as provided for by the Constitution. So where the incumbent Prime Minister has refused to step down in the interim period, then the order for his removal must he where it has fallen.

In short, what the Court of Appeal is saying is, now that that matter will be dealt with by Parliament, let Parliament sort the matter out. If the Prime Minister remains in office, then he does so as a Prime Minister who has forfeited his right to advise the Governor-General. He, however, still remains in office as the Prime Minister if he refuses to resign until he has been voted out by Parliament on 31 October 1994 on a resolution of no confidence, as expressly provided for under s 34 of the Constitution. If there have been unpleasant consequences that have arisen from the Constitution, then it is incumbent upon Parliament to make them pleasant.

The only declaration, therefore, that I feel at liberty to make in view of the ruling of the Court of Appeal is that in the circumstances of this case, if Francis Billy Hilly, the incumbent Prime Minister, refuses to resign before the meeting of Parliament on 31 October 1994, then he remains the Prime Minister in the terms described by the Court of Appeal, until he is voted out on a motion of no confidence.

Apart from the above, any other declarations sought, including the declarations sought under para B(i) and (ii) of the originating summons, in my view, would not be proper to make.

On the question of costs, since the parties have appeared in their official capacities, the appropriate order is to make no order for costs. However, it is obvious that the government will have to foot whatever costs there are.

The Governor-General of the Solomon Islands then appealed to the Court of Appeal.

29 October 1994. The following judgment of the court was delivered.

CONNOLLY P. A week ago today the Court of Appeal gave its judgment in a case 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 JJA) 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 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-General 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 the 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 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 pp 38-39, ante) that the Court of Appeal has purposely declined to rule whether Mr Hilly had been lawfully removed or not; and at p 41, ante, that the question remained unanswered. These statements are plainly quite correct.

This court affirmed the power of the Governor-General to summon 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 p 44, ante, as being that when there is a workable and practical solution especially 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 not a full statement of the constitutional position and that there exist 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 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 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 1978 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 the 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. 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 order will be made.