Minister for Provincial Government v Guadalcanal Provincial Assembly [1997] SBCA 1; CA-CAC 003 of 1997 (11 July 1997)

COURT OF APPEAL OF SOLOMON ISLANDS

Civil Appeal Case No. 3 of 1997
(On Appeal from Civil Case No. 309 of 1996)

BETWEEN:

MINISTER FOR PROVINCIAL GOVERNMENT
Appellant

AND:

GUADALCANAL PROVINCIAL ASSEMBLY
Respondent

The Court: KAPI, (Ag) P., Williams JA, Goldsbrough JA.

Date of Hearing: 23 April 1997
Date of Judgment: 11 July 1997

Advocates: P.M. Afeau with B. Titiulu for the Appellant.
M. Rafter with C. Ashley for the Respondent.

Ex Tempore/Reserved: Reserved
Allowed/Dismissed: Allowed

Kapi P (Ag)

The High Court (Palmer J) declared that the Provincial Government Act 1996 is inconsistent with the provision of the Constitution and therefore invalid and of no effect. This declaration was made upon application made by the Guadalcanal Provincial Assembly (hereinafter referred to as the "Respondent") under s 83 of the Constitution. The Minister for Provincial Government (hereinafter referred to as the "Appellant") has appealed against the decision.

The background to the proceedings before the High Court may be summarised as follows. When the Constitution of Solomon Islands came into effect on 7 July 1978, there was no provision for a system of provincial government. The only constitutional provision in respect of provincial government is s 114 as amended reads as follows:

"114. (1) Notwithstanding anything contained in the Solomon Islands Independence Order 1978, Solomon Islands shall be divided into Honiara city and provinces.

(2) Parliament shall by law-

(a) prescribe the number of provinces, and the boundaries of Honiara city and the provinces after considering the advice of the Constituency Boundaries Commission.

(b) make provision for the government of Honiara city and the provinces and consider the role of traditional chiefs in the provinces."

There is nothing in this provision which indicates the nature or the character of provincial governments.

In accordance with this provision, the National Parliament enacted the Provincial Government Act 1981 (hereinafter referred to as the "1981 Act"). This Act established seven (7) Provincial Governments in the Solomon Islands including the Respondent (see Schedule 1). In so far as it is relevant to the present appeal, Part II of the 1981 Act provides for a Provincial Assembly for each province which shall consist of elected members (s 7(2)). Eligibility to vote is governed by a provincial franchise under s 11. The Act provides for no more than then appointed members to represent the traditional leaders of the Province (s 14).

A provincial Executive is chosen by elected members of a Provincial Assembly (s 22). The executive is therefore made responsible to the Provincial Assembly.

Subsequent amendments in 1991 and 1992 simply added new Provincial Assemblies and Executives. The nature of Provincial Assemblies and Executives remain the same as the principal Act.

On 8 August 1996, the National Parliament passed the Provincial Government Act 1996 (No. 3 of 1996) (hereinafter referred to as the "1996 Act") which repealed the 1981 Act. The Respondent was in the process of being dissolved when the application was made to challenge the validity of the 1996 Act.

Under the 1996 Act, Solomon Islands is divided into provinces (Part II of the Act). A province is administrated by a Provincial Council and it is made up of Chairman of Area Assemblies in a province (s.7).

A province may have no less than one and no more than ten Area Assemblies (s 21(1)). An Area Assembly may be divided into wards for purposes of election of members of Area Assembly (s 21(2)(a)). A ward shall have a minimum of one member and shall not exceed a maximum of five members (s 21(4)). All of these matters are determined by the Minister responsible for Provincial Government (s 21(2) & (3)).

Area Assembly is made up of elected members (the number which is determined by the Minister under s 21) and members who are appointed by chiefs and elders in the area for the Assembly (s 31(1)). The number of appointed members is equivalent to the numbers elected for the Assembly (s 31(2)).

A brief survey of the 1996 Act reveals that a Provincial Council is not directly elected. The Provincial Council may be wholly made up of indirectly elected members if all the Chairman of the Area Assemblies are elected members of the Assembly (s 22 (2)). Or it may be wholly made up of appointed members if all the Chairman of the Area Assemblies are appointed members (s 22(3)). Or it may be a mixture of members who are elected and members who are appointed.

In the High Court, the Respondent attacked the validity of Parts III, IV, V and VI of the 1996 Act. The Respondent submitted that these provisions are invalid in that they are inconsistent with an implied provision in the Constitution, namely, that the system of government such as the respondent is required to comply with the principles of representative and responsible government. That the system of government established by the 1996 Act is inconsistent with these requirements and therefore are invalid and of no effect.

Counsel for the Appellant supported the provisions of the 1996 Act on the basis that the Parliament has unlimited powers under s 114(2) of the Constitution and was entitled to make the 1996 Act in the terms it saw fit. Counsel further submitted that even if the principles of representative and responsible government is required by the Constitution, the parts of the 1996 Act under attack do not contravene those principles.

The learned trial judge accepted the submissions of the respondent and declared Parts III, IV, V and VI invalid. He further concluded that it would not be possible to sever the invalid parts from the rest of the 1996 Act and therefore declared the whole Act invalid.

Before us counsel for the parties in effect repeated their submissions in the High Court.

Several issues arise for consideration on this appeal. The first is to consider whether the Constitution requires that the system of government including provincial governments must comply with the principles of representative and responsible government. This task involves consideration of what is representative and responsible government and whether these principles can be found in the provisions of the Constitution.

If these principles are established as part of the Constitution, the next question is to consider whether Parts III, IV, V and VI of the 1996 Act contravene those principles.

It is common ground that the trial judge reached his conclusion on the basis of the provisions of the agreement and pledge in the Constitution which is commonly referred to as the preamble as follows:

"We the people of Solomon Islands, proud of the wisdom and the worthy customs of our ancestors, mindful of our common and diverse heritage and conscious of our common destiny, do now, under the guiding hand of God, establish the sovereign democratic State of Solomon Islands;

As a basis of our united nation

DECLARE that-

(a) all power in Solomon Islands belongs to its people and is exercised on their behalf by the legislature, the executive and the judiciary established by this Constitution.

(b) the natural resources of our country arm vested in the people and the government of Solomon Islands.

"AGREE AND PLEDGE that

(a) our government shall be based an democratic principles of universal suffrage and the responsibility of executive authorities to elect assemblies;

(b) we shall uphold the principles of equality, social justice and the equitable distribution of incomes;

(c) we shall respect and enhance human dignity and strengthen and build on our communal solidarity;

(d) we shall cherish and promote the different cultural traditions within Solomon Islands;

(e) we shall ensure the participation of our people in the governance of their affairs and provide within the framework of our National unity for the decentralisation of power;

AND for these purposes we now give ourselves this Constitution."

Counsel for the appellant submitted that the issue in this case is to be resolved by simply resorting to the provisions of s 114 of the Constitution. He submitted that there is no ambiguity as to the meaning to be given to s 114(2). That is to say, the power to establish provincial governments is a power given to the Parliament and it is not subject to any requirement including the general principles stated in the preamble to the Constitution.

Counsel for the respondent on the other hand submitted that the power given to the Parliament under s 114(2) is subject to the principles of representative and responsible government which are expressly stated in the preamble to the Constitution.

The trial judge in his opinion made extensive references to decisions of the High Court of Australia which support the proposition that certain terms which are not expressly stated in the Commonwealth Constitution may be implied. After having made references to these cases, the trial judge concluded:

"I am more than convinced that implications may be drawn by this court when interpreting the Constitution of Solomon Islands."

One may be led to conclude from this that the trial judge resolved the issue by implying a term in the Constitution. However, in reality, the trial judge resolved the issue in this case by reference to express provisions of the Preamble to the Constitution. This is clear from what His Lordship said:

"The task before me however, with respect is easier than what befell the High Court of Australia in the above cases. I find that I do not have to travel far from the terms of the Constitution itself to draw any implication. Deeply embedded in the terms of the Constitution are the very notions of representative and responsible government ....... But even if I am to venture out, to the terms of the Preamble, the same clear notions or principles of representative and responsible government are to be found. They stand out as clear reminders, like the carvings on top of Parliament Building (apart from aesthetic beauty), to remind Parliamentarians that the Parliament belongs to the People of Solomon Islands, like the Coat of Arms above the seat where judges seat in this court, to remind judges, lawyers and the parties who come to the Court that the Court belong to the People of Solomon Islands; lest we forget. These notions or underlying principles are so intertwined in the written Constitution, that to attempt to separate or sever them is an almost impossible task; but not impossible. To change them one must change the Constitution first, starting with the Preamble, according to section 61 of the Constitution."

Therefore the issue this Court needs to determine is the extent to which the Court may have regard to and give meaning to the Preamble to the Constitution. It should be noted that the Constitution does not use the terminology "Preamble". The Constitution simply states some underlying principles or philosophies which forms the basis of the new nation of Solomon Islands. I note that in the Report of the Solomon Islands Constitutional Conference London, September 1977 which was presented to the Parliament in England, in paragraph 6, the Conference recommended a similar set of principles which were titled "Preamble". For easy reference I shall refer to the whole introductory part of the Constitution as "Preamble" to the Constitution.

Starting point in resolving the issue of the use of a preamble is the interpretation provision, s 144 of the Constitution. However, there is nothing in there which may give some assistance as to the manner in which a preamble may be used. There is also nothing in the Interpretation Act, 1889 c. 63 (see s 144 (3) of the Constitution) which deals with use of a preamble.

We must then look to the principles of common law which are applicable as at 7 July 1978 (see Schedule 3 of the Constitution). There is authority which supports the proposition that it is permissible to have recourse to the terms of a preamble as an aid to construing the enacting provisions of a statute. However, this is only permissible where there is obscure or indefinite enacting provisions (see AG v Prince Ernst Augustus of Hanover [1957] AC 438).

Decisions from other jurisdictions are not binding on this Court but can only have a persuasive value. It is up to this Court to adopt and develop any principle which may be decided by any foreign court after 7 July, 1978 (see Schedule 3.4(1) of the Constitution). In respect of use of a preamble to a constitution, several jurisdictions have dealt with the issue. It is permissible to have recourse to a preamble as an aid to construction of the provisions of a constitution as in common law, where there is an ambiguity in the enacting provisions. These authorities, however, go beyond the common law in that a preamble may be used as an aid to construction even where the enacting provisions are not so ambiguous (see Kauesa v Minister of Home Affairs [1994] LRC 263 at 297-298).

My research of decisions from other jurisdictions confirm the proposition that a preamble to a constitution is an unqualified part of the tear and the courts will give due weight to it. Most of these decisions deal with use of the preamble with other provisions of the Constitution. We are grateful to counsel for providing us with the relevant pages of the text, The Irish Constitution by J. M. Kelly (Third edition) which discusses the cases in which the Irish Courts have used the preamble in the construction of the Irish Constitution. I do not have easy access to the Irish reports but a reading of the material provided illustrate that the preamble is part of the constitution and often stipulates the spirit of the Constitution which may help to determine the meaning or effect to be given to particular provisions of the Constitution.

The same approach can be found in decisions in other jurisdictions. In Van Wyk v The State [1992] LRC (Crim) 368 at 373 per Mohamed AJA dealing with the preamble and other provisions of the Constitution on the issue of racism said:

"'Throughout the preamble and substantive structures of the Namibian Constitution there is one golden and unbroken thread - and abiding 'revulsion' of racism and apartheid. It articulates a vigorous consciousness of the suffering and the wounds which racism has inflicted on the Namibian people 'for so long' and a commitment to build a new nation 'to cherish and to protect the gains of our long struggle' against the pathology of identity apartheid. I know of no other Constitution in the world which seeks to identify a legal ethos against apartheid with greater vigour and intensity"

This same passage was adopted in a subsequent case of Governor of the Republic of Namibia and Another v Cultura 2000 and Another [1993] 3 LRC 175 at 179-180. In this case, as in the former case, the Court was using the preamble together with other provisions of the Constitution to give effect to the philosophy of a nation's commitment against racism.

The issue we have in the present case deal with the use of preamble as the sole basis for stating a legal principle as against a law passed by the National Parliament. The closest I have come to dealing with the issue is in UDM and Another v Governor General and Another [1991] LRC 328. The facts may be stated from the headnote. The plaintiffs in a consolidated suit impugned the validity of the requirement that prospective candidates in both parliamentary and local government elections, on registering their nomination papers, were obliged to make a deposit which was forfeited if the particular candidate failed to obtain a certain percentage of the votes cast, and, alternatively, the sum of 10,000 rupees which, pursuant to the Legislative Assembly Election (Amendment) Regulations 1989, purported to be the amount prescribed as deposit. The grounds for the applications were that the plaintiff's rights under several sections of the Constitution were contravened. As far as it is relevant to the present case, the plaintiffs relied on the phrase "democratic State" in s 1 of the Constitution. In this respect the Court on page 330 said:

"Turning now to the second ground invoked, we have to resolve the question of the meaning of the phrase 'democratic state' in s 1 of the Constitution. This, we hasten to add, may or may not be the same as attempting to define the concept of a 'democratic society' in order to discover what, for the purposes of certain sections of Chapter II, is or is not reasonable. We have formed the opinion that, with respect to the other judges of this court who have been called upon to formulate such a definition for the purposes of s 1, the approach of Ramphul J, as explained is Lincoln v Governor General [1974] MR 112, is the correct one. In short, this is that it is neither necessary nor appropriate to travel outside our supreme law for the purpose of discovering what the framers of our Constitution had in mind when they used the words 'democratic state', and still less to invoke certain conventions which underlie British constitutional law. What s 1 means is that our State is to be administered in accordance with the other provisions of the Constitution, which contains the essence of the democratic principles governing us. These include the guarantee of human rights and fundamental freedoms, the acquisition and loss of citizenship, the power granted to Parliament, which includes an elected Legislative Assembly, to make laws, the responsibility of the executive to Parliament, the existence of an independent judiciary, as well as certain other provisions which it is not relevant to mention for the proposes of this case.

It is indeed significant that any Parliament may, provided the proposed measure is approved by prescribed majorities including the requirement of a vote by the three- quarters of the members of the Assembly in the case of major changes, alter the Constitution and thus change the structure of our democracy without anyone being able to content that this state has ceased to be a democratic one."

At page 330 the Court dealt with the application of these principles to local level government elections:

"Now, the Constitution does not contain any provision which prescribes a system of local government. Without for one moment wishing to create the impression that we would advocate such a course, there is nothing in our law which prevents Parliament from repealing the existing Local Level Government Act to provide that our local government areas shall be administered by councils comprised solely of appointed members. So that it is not possible to question the requirement of a deposit from candidates at elections for municipal or village council on the ground that this violates s 1 of the Constitution."

The Court then went on deal with the application of the principles to Legislative Assembly elections at page 331:

"The position is different with regard to Legislative Assembly elections, because the provisions of s 1, relating to the need to ensure that democracy prevails, must be read along with s 33 and s 34 for that matter: Those provisions not only set out the qualifications required for anyone to stand as a candidate and the circumstances under which he is disqualified from putting his name forward, but go on to lay down that any person who has the required qualifications and who is not otherwise disqualified has a guaranteed right to be a candidate, and to imply necessarily that the electors can legitimately expect that no such person is debarred from standing."

This decision established several principles. First, it confirms the view held in other jurisdictions that recourse may be had to the terms of the preamble to interpret other provisions of the Constitution. Second, the word "democratic State" is to be interpreted within the meaning and effect given to it by other provisions of the Constitution and not by resorting to any concept of democratic state outside the Constitution. Third, the Constitution does not contain any provision with regard to a system of local government and therefore it is not subject to the democratic principles in s 1 of the Constitution.

I consider that the Preamble to the Constitution of Solomon Islands is no different to the nature of preambles in other constitutions. The preamble is a general statement of jurisprudential philosophy or underlying principles or beliefs by the people as the basis of the new nation. To this extent it is permissible as has been illustrated by decisions from other jurisdictions for courts to have regard to preambles in construing provisions of constitutions. However, in my opinion, these several statements must not be read as constituting legal principles on their own. First, these general statements are incapable of precise meaning on their own. Take for example the declaration:

"DECLARE that

(a) all power in Solomon Islands belongs to its people and is exercised on their behalf by the legislature, the executive and the judiciary established by this Constitution;"

It is difficult to precisely define this principle without having regard to the enacting provisions of the Constitution. This provision expressly makes reference to the Constitution. One has to go to the enacting provisions which define the powers and functions and the relationship between three arms of government. This difficulty can be further illustrated by reference to the pledge:

"(d) We shall cherish and promote the different cultural traditions within Solomon Islands"

How can this be defined and enforced as a legal principle? It becomes more difficult to define and apply when all the principles are read together. How can a court give effect to the democratic principles in (a) as opposed to the cultural traditions in (d)? If there is any conflict, what criteria is to be used to reconcile them? To my mind these difficulties would prevent a court from treating a provision in the Preamble on its own as stating a legal principle enforcement. All the principles stated in the Preamble are subject to this difficulty and are incapable of being precisely defined and enforced. All these principles are subject to the concluding paragraph:

"AND for these purposes we now give ourselves this Constitution."

I would conclude from this that it was clearly intended by the framers of the Constitution that the purposes stated in the Preamble are to be defined and clearly set out in the enacting provisions of the Constitution. It would follow from this conclusion that one has to go to the enacting provisions to define principle and the extent to which such a Preamble may apply. The extent to which a preamble may be used as aid to construction will be determined from reading the preamble with the whole of the enacting provisions of the Constitution.

In the present case, the Preamble to the Constitution states "democratic State" as well as "democratic principles of universal suffrage and the responsibility of executive authorities to elect assemblies". In so far as the National Parliament is concerned, the enacting provisions have set out these democratic principles in Parts V and VI of the Constitution. It is only necessary to refer to one such principle which has been recognised and enforced by this Court. Under Part V, s 34 of the Constitution stipulates that Executive arm of the Government is subject to the principle of majority rule in a Parliamentary democracy. The Court of Appeal upheld this principle in the Speaker v. Danny Philip, Appeal No. 5 of 1990, a decision delivered on 30 August 1991.

In contrast to this, Part XII of the Constitution simply require that Solomon Islands shall be divided into provinces and the number and boundaries of these provinces shall be prescribe by Parliament after considering advice from the Constituency Boundaries Commission. The nature and the powers of provincial governments is left entirely up to the National Parliament (s 114(2) of the Constitution). In my opinion this provision does not require the Parliament to comply with the democratic principles as set out in Parts V and VI in respect of the Parliament. In my opinion the situation in the Solomon Islands is no different to the position in Mauritius with respect to local government as set out in UDM and Another v Governor-General and Another (supra).

The question then arises; can the democratic principles set out in the Preamble read together with Parts V and VI of the Constitution in respect of the Parliament, may be required for provincial government by way of implication? The answer to that question cannot be in doubt. If the framers of the Constitution intended similar requirements to apply to provincial governments, they would have said so, in Part XII of the Constitution. By not including these requirements, the clear intention is that they are not applicable. Section 114 is not made subject to any other provision of the Constitution.

The trial judge placed heavy reliance on authorities from the High Court of Australia. These authorities support the proposition that a term may be implied as a matter of construction of the Constitution. The circumstances in which the High Court implied such terms are different to the circumstances of the present case. As a matter of construction, no such implication can be made in respect of provincial governments by reading Parts V & VI together with Part XII of the Constitution.

Having reached this conclusion it is not necessary to consider whether Parts III, IV, V and VI of the 1996 Act are inconsistent with democratic principles that are applicable to the National Parliament.

Section 114(2) simply directs that the Parliament should "consider the role of traditional chiefs" in making provisions for government of provinces. This direction does not in way indicate the manner or the decree to which the Parliament may give effect to the role of traditional chiefs. It is entirely within the discretion of the Parliament to make provisions with respect to the role of traditional chiefs in the provincial governments. That is consistent with the powers of the Parliament under s 59(1) of the Constitution. I am satisfied that the Parliament has considered the role of traditional chiefs in the provisions of the 1996 Act. This is apparent from Part V of the Act which set out the role of traditional chiefs.

The 1996 Act also deals with "elders". They are not traditional chiefs as defined by s 30(2)(b). The Act clearly has in mind communities where there is no traditional chiefs. This may occur where through modernisation, traditional chiefs have lost their place or where new communities develop in urban areas where no traditional chiefs exist. An elder may emerge as the leader in the particular community. There is no Constitutional requirement that Parliament should consider role of such elders. The Parliament has unlimited power to make provisions for such elders in a manner it considers appropriate.

I would allow the appeal and quash the decision of the trial judge. I would order that the respondent pays the appellant's costs of and incidental to this appeal and of the proceedings below.

JUDGMENT – WILLIAMS J A.

The background to this appeal is set out in the reasons for judgment of Kapi P which I have had the advantage of reading; I will not unnecessarily repeat matters of undisputed fact referred to therein.

The Provincial Government Act 1981 established provinces (s.7) which were divided into "electoral wards" for election purposes (s.8). Section 11 of that Act provided that all citizens of the Solomon Islands who have attained the age of 18 years and were ordinarily resident in the province (and who were not otherwise disqualified) were entitled to vote at a Provincial Assembly Election. By s.14 a Provincial Assembly could by resolution appoint additional members of the Assembly, and the terms and conditions of their membership were to be specified in the resolution. Subsection (2) thereof provided:

"not more than ten of the persons appointed by a Provincial Assembly under this section shall be appointed to represent the traditional leaders of the province."

The Act also provided for there to be a Provincial Executive to be chosen from among the elected members of the Provincial Assembly.

The 1981 legislation, and the administrative framework established thereunder, were repealed by The Provincial Government Act 1996 - the legislation under attack in this appeal. Section 3 thereof provided for the establishment of provinces to be administered by "Provincial Government". For that purpose there was to be a Provincial Council in each province (s.7); that Council was to "consist of the Chairman of all the Area Assemblies in province". Section 16 provided that a Provincial Council should exercise, as regards the province, the function specified in Schedules 3 and 4; Schedule 3 refers to functions of the Provincial Council in enforcing in the province laws of the Solomon Islands, and Schedule 4 particularises matters upon which the Provincial Council can legislate by ordinance which would apply to the province only.

Beneath the Provincial Council are the Area Assemblies; each province shall be divided into between one and ten such areas (s.21). Areas are then divided into wards for election purposes; each ward could elect between one and five members to the Assembly. Citizens of the Solomon Islands who have attained the age of 18 are ordinarily resident in the area are eligible to vote at an Area Assembly election (s.25).

Then comes s.31 which is of the critical importance, relevantly it is in these terms-

"(1) Immediately after an election for an Area Assembly but not later than sevens days, the Returning Officers shall cause a meeting to be convened in each Area Assembly for the Chiefs and elders in that area to appoint from appoint from amongst themselves to that assembly.

(2) The number of appointed members shall be equivalent to the number elected for that Assembly.

(3) Persons whose names appear in the Registrar shall sit as an electoral college for the purpose of appointing members to the Area Assembly."

The reference to the register is to the register required to be established pursuant to s.30; there is to be a register known as the "Register of Chiefs and Elders" which is to contain the names of "Chiefs", being persons considered by the people in that ward to be a chief by tradition; and Elders, being persons generally recognised by the people of that ward as a leader in that community.

Section 32 then provides that within a month of the Area Assembly general election, the Provincial Secretary shall cause a meeting of the Area Assembly to be convened for the election of the Chairman.

An Area Assembly is to perform the functions set out in Schedule 5 and to legislate in accordance with Schedule 4 (s.39).

It can thus be seen that the members of the Provincial Council are not elected by universal suffrage; they are indirectly elected by the Area Assemblies. Further, the Area Assemblies are comprised of 50% elected members and 50% non-elected; the latter being chiefs and elders. Though the actual number of chiefs and elders appointed as members of an Area Assembly may be less than the number of that category formally appoint to a Provincial Assembly under s.14 of the 1981 Act, the power and influence accorded to that group under the 1996 Act is greater because thereunder they must comprise one-half of the total number of members of the Area Assembly.

The question for this court to determine is whether or not the 1996 Act infringes the constitution. Palmer J held that it did and in consequence declared the Act to be void. In so concluding he relied heavily on the introductory words of the Constitution and what he considered to be the underlying principle of representative and responsible government which formed an integral part of the constitution.

On appeal the respondent contended that the 1991 Act was inconsistent with the Constitution because it required the system of government at provincial level to comply with principles of representative democracy and responsible government. The argument was that if such was not expressly provided for by the Constitution there was a necessary implication to that effect.

The introductory words of the Constitution can conveniently be described as a "preamble"; the extract therefrom being most relevant for present purposes is the following:

"We the people of Solomon Islands, proud of the wisdom and worthy customs of our ancestors, mindful of our common and diverse heritage and conscious of our common destiny, do now, under the guiding hand of God, establish a sovereign democratic state of Solomon Islands;

As a basis of our united nation DECLARE that-

(a) all power in Solomon Islands belongs to its people and is exercised on their behalf by the legislature, the executive and the judiciary established by this constitution;

...

AGREE & AND PLEDGE that

(a) our government shall be based on democratic principles of universal suffrage and the responsibility of executive authority to elected Assemblies;

(b) we shall uphold the principles of equality, social justice and the equitable distribution of incomes;

...

(c) we shall ensure the participation of our people in the governance of their affairs and provide with the framework of our national unity for the decentralisation of power,

..."

Those words are important because they recognise that it is the people of the Solomon Islands who are the enacting authority. The quoted words clearly express the underlying spirit of the constitution and clearly define the principles within which the constitution is to be construed and implemented. Where a specific enactment of the Constitution conflicts with a statement in the preamble then, of course, the specific enactment must prevail; but subject thereto the preamble provides substantive guidelines to be followed when considering the meaning and effect of the Constitution. It may also be relevant in determining the constitutional validity of legislation passed by the National Parliament.

Counsel for the appellant argued that the learned trial judge erred in placing too much emphasis on the words of the preamble and submitted that recourse could only be had to the preamble where there was some ambiguity in the Constitution itself. In support of those submissions reference was made to Attorney-General v. Prince Ernest Augustus of Hanover (1957) A.C. 436. The House of Lords was there concerned with the construction of a statute. It was held that the enacting part of the statute was of greater significance and that the preamble, could not affect the meaning otherwise ascribable to the enacting part unless there was a compelling reason for so doing. That decision is authority for the approach to be adopted when construing a statute which is clearly divided into a preamble and an enacting part. But that is not the situation here. The Constitution of the Solomon Islands consists of the introductory words and the 145 clauses. The introductory words (for convenience sake called the preamble) are as much a part of the Constitution as any of those clauses. The whole document must be read together, subject of course to the general principle that a specific provision would prevail over a general intent derived from the use of words of wide import. That appears to be the contribution the Preamble to Irish Constitution has made to the proper construction of its substantive terms. (See Hogan and Whyte The Irish Constitution (3rd ed) at 1-7).

Section 1 of the Constitution provides that the Solomon Islands shall be "a sovereign democratic state". Chapter V deals with The Executive, and Chapter VI with The National Legislature. Section 47 provides that the Parliament "shall consist of persons elected in accordance with the provisions of this Constitution" and then s.48 provides in effect for universal suffrage with respect to such elections. That is spelt out in ss.55, 56 and 58.

Chapter XII deals with Provincial Government; s.114 section therein and (as amended) it is in these terms:

"(1) Notwithstanding anything contained in the Solomon Islands Independence Order 1978, Solomon Islands shall be divided into Honiara city and provinces.

(2) Parliament shall bylaw -

(a) prescribe the number of provinces; and the boundaries of Honiara city and the provinces after considering the advice of the Constituency Boundaries Commission;

(b) make provision for the government of Honiara city and the provinces and consider the role of traditional chiefs in the provinces."

Understandably the construction of s.114 is of vital importance present purposes. The expression "consider the role of traditional chiefs" was undoubtedly used as the basis for enacting s.14 of the 1981 Act and ss.30 and 31 of the 1996 Act. The term "consider" must in the context mean more than "think about". When one goes to the Shorter Oxford English Dictionary one finds amongst the many meanings of the word "consider" the following:

"To take into practical consideration; to recognise in a practical way".

To my mind the word must be ascribed those meanings in s.114. It follows that the constitution empowers the National Parliament to make laws establishing and defusing the role of traditional chiefs at the level of provincial government.

In his reasons for judgment Palmer J referred at some length to the distinction between "chiefs" and "elders" recognised in the 1996 Act, and noted that the Constitution only referred to "traditional chiefs". The term "traditional chiefs" is not defined in the constitution, but it will be remembered that the preamble refers to the "worthy customs of our ancestors, mindful of our common and diverse heritage" and the desire to "ensure the participation of our people in the governance of their affairs". The 1981 Act referred to "traditional leaders" but undoubtedly those of that class would be the same as the "chiefs" and "elders" under the 1996 Act. Given the definition of the terms "elder" and "chief" in s. 30 of the 1996 Act, I am of the view that, properly construed, ss.30 and 31 reflect the customs of the people of the Solomon Islands. The constitutional provision that the category of persons who according to custom would be encompassed by the expression "traditional chiefs" should be given some practical role in government at the provincial level is thus reflected in those sections.

Expressions such as "representative and responsible government", "universal suffrage", democratic principles", and "democratic state" are somewhat vague and, whilst there is a generally accepted core meaning, practical applications of those concepts can vary widely. For example, "universal suffrage" does not mean, "one man, one vote" in the mathematical sense. It has been recognised, for example, in Australia that is not inconsistent with the principles of democratic government and universal suffrage for there to be a considerable difference in the number of electors in the various electorates responsible for electing one member to the legislative assembly. Further, again taking an Australian example, there is nothing undemocratic in having each state in a federation electing the same number of senators, though the population in the states varies considerably. In other countries around the world, generally classified as being democratic, one sees instances of "indirect elections"; for example, an electoral college based on universal suffrage having in turn the right to elect the delegates or representatives to the ultimate legislature.

Even having regard to the provisions of the preamble I cannot see that there is anything contrary to the Constitution in the method of election of elected members of the Area Assembly and the method of election of members of the Provincial Council.

Given the express terms of the constitution with respect to the National Parliament's power to make provision for the role of "traditional chiefs" in provincial government there is nothing unconstitutional in providing for chiefs and elders to be appointed members of provincial government. One matter of concern is that the non-elected chiefs and elders are pursuant to the 1996 Act given equal numbers with the elected members of the Area Assembly. However, it is difficult to see that there is a material difference between providing for equal representation and providing that the elected members should exceed the appointed members by at last one. Even under the 1981 Act there could be a majority of chiefs if only because some could be elected as well as appointed. The political reality is, given the conflicting views that usually emerge in a democratic society, that questions will never be resolved by the Area Assembly dividing on elected and non-elected member lines.

There are two aspects, however, to which I should specifically refer lest it should be thought that I have not addressed them. Firstly, the traditional position is that only a male can be a "traditional chief". That means that one-half of the members of the Area Assembly must be males and that, it might be said, effectively denies females equal opportunity with males. There is certainly force in the argument, but the answer in essence is that the constitution recognises that the "traditional chiefs" should play a role in government at the provincial level. The constitution itself therefore recognises this imbalance or discrimination and it will remain until the role of "traditional chief" under the constitution is re-evaluated. Initially the role for women in government at the provincial level will be limited to standing for election to Area Assemblies, and undoubtedly when that has become more readily accepted, consideration will be given to the discriminatory effect of appointing chiefs and elders pursuant to ss. 30 and 31 of the 1996 Act.

The other matter of concern is that it is theoretically possible for each chairman of an Area Assembly to be an "elder" or "chief", and in consequence it is possible that all members of the Provincial Council could be non-elected members of the Area Assembly. That would be an unfortunate outcome, but in the circumstances it would not, in my view, render the provincial government undemocratic or the legislation establishing it unconstitutional.

Perhaps the overriding consideration in all of this is the fact that ultimately legislative power over all aspects of provincial government is vested in the National Parliament. The Minister for Provincial Government can effectively withhold consent to any legislation at Provincial Council or Area Assembly level. If the National Parliament considers that any legislation passed by a Provincial Council or Area Assembly is not in the interests of peace, order and good government of the province or the nation as a whole it can by withholding approval or, if necessary, passing legislation, rectify the situation. Ultimately it must be said that the National Parliament is the body under the constitution which is elected by universal suffrage and which is based on democratic principles including the responsibility of executive authorities to elected assemblies. It can exercise sufficient supervisory jurisdiction over government at provincial level to ensure that the basic principles underlying the constitution of the Solomon Islands are adhered to.

In all the circumstances I have come to the conclusion that the 1996 legislation does not offend any provision of the Constitution, nor is it inconsistent with the underlying principle of representative and responsible government to be discerned from the introductory words of the Constitution.

Much was said in the course of argument about the power of the Court to find implied powers or restraints on the exercise of powers arising by way of necessary implication from the Constitution. Although the learned trial judge used the expression implications from the Constitution in his judgment, I agree with the Acting-President in concluding that in essence he resolved the issue by consideration of express provisions of the Constitution, including the Preamble.

In consequence this is not the appropriate case in which to finally determine the Court's power with regard to implying terms into the Constitution or drawing implications therefrom.

In the circumstances I would allow the appeal.

GOLDSBROUGH JA

This is an appeal against decision of Palmer J. sitting in the High Court of the Solomon Islands wherein it was declared that the Provincial Government Act 1996 is invalid, it having been determined that Parts III, IV, V and VI of the Act are inconsistent with the Constitution and thereby void.

I have had the benefit of reading the judgements of Kapi P (Ag) and Williams JA and agree with them. I shall not set out the background to this appeal, which has already been amply dealt with.

Jurisdiction to consider whether this legislation offends the Constitution is to be found in section 83 of the Constitution of the Solomon Islands. The same constitution, at section 2 provides that:

"This Constitution is the Supreme Law of the Solomon Islands and if any other law is inconsistent with the Constitution, that other law shall, to the extent of the inconsistency, be void."

It is not an issue that the court had jurisdiction to determine this matter, nor that the respondent to this appeal was possessed of the necessary locus.

The Provincial Government Act 1996 (hereinafter referred to as 'PGA96') No. 3 of 1996 was passed by the National Parliament of the Solomon Islands on 8 August 1996 and assented to in Her Majesty's name on 11 September 1996. PGA96 makes provision for the establishment of a new provincial government system, at the same time repealing former provisions contained in the Provincial Government Act 1981 as amended. It is this legislation which has been called into question.

The effect of PGA96 is to replace existing Provincial Assemblies with Provincial Councils. A Provincial Council will comprise the Chairmen of all Area Assemblies in any particular Province. Area Assemblies shall comprise a number of elected members from each Ward of an Area Assembly, elected in accordance with Part V PGA96, and an equal number of appointed members chosen by an electoral college comprising chiefs and elders of that area. The appointed members will be chosen from amongst themselves from the Register of Chiefs and Elders compiled in accordance with section 30 PGA 96. Chiefs and Electors are defined in section 30(2) (a) and (b) PGA96.

The National Parliament of the Solomon Islands is required by section 114 of the Constitution to make provision for the government of the province. The constitutional issue which arises is whether the National Parliament, in deciding the manner in which it would prescribe provisions under section 114(2) of the Constitution, is fettered by other provisions of the same constitution. The basis on which this issue is raised is to be found in the agreement and pledge found at the beginning of the Solomon Islands' Constitution:-

"(a) our government shall be based on democratic principles of universal suffrage and the responsibility of executive authorities to elected assemblies."

and

"(c) we shall ensure the participation of our people in the governance of their affairs and provide within the framework of our national unity for the decentralisation of power."

During this appeal and at the initial hearing the word 'preamble' was used to describe this section of the Constitution, although such a word does not appear in this constitution, unlike others. For the sake of convenience only, I will refer to it as the preamble.

To answer the question raised, that is whether the discretion of Parliament is limited other than in accordance with the words to be found in this section itself, one first needs to consider that section of the Constitution as amended, found in Part XII, which provides that:

"(1) Notwithstanding anything contained in the Solomon Islands Independence Order, 1978, Solomon Islands shall be divided into Honiara city and provinces.

(2) Parliament shall by law -

(a) prescribe the number of provinces and the boundaries of Honiara city and the provinces after considering the advice of the Constituency Boundaries Commission.

(b) make provision far the government of Honiara city and the provinces and consider the role of traditional chiefs in the provinces."

From the judgement it appears clear that the learned trial judge found no ambiguity in the words of the section. One might have assumed that this would have been an end of the matter but the learned trial judge then went onto 'reformulate the issue'. Acknowledging that section 114 did not explicitly require Parliament to base any system of provincial government on the principles of universal suffrage, the Court went on to consider whether this requirement was a 'necessary implication' when interpreting the Constitution as a whole. This I would venture to suggest is not far removed from the danger warned against by VISCOUNT SIMMONDS IN AG v HRH Prince Ernest Augustus of Hanover [1957] 1 All ER 49 at page 55b of:

"creating or imagining an ambiguity in order to bring in the aid of the preamble."

The basis for such an implication comes from the words set out above contained in the preamble. Resort has often been made to the words of a preamble in a statute when deciding on provisions which themselves have been found to be ambiguous, and there is ample authority for this. I am not aware of any authority which permits resort to be made to a preamble, however, where no ambiguity is found. AS INNES C.J. said in Law Union and Rock Insurance Co. Ltd v. Carmichael's Executor 1917 AD 593 at 597-

"A preamble has been described by an old English Judge as 'a key, to open the minds of the makers of the Act and the mischief which they intended to redress'. But the key can be used only if the meaning of the enacting clause is clear and plain. In cases however where the wording is ambiguous, and in cases where the Court is satisfied that the Legislature must have intended to limit in some way the wide language used, then it is proper to have recourse to the preamble."

The 'agreement and pledge' found at the beginning of the Constitution, which as I said earlier is only referred to here for the sake of convenience as a preamble, is as much a part of the Constitution as any other provision. But from its words one can see that it does not set out in male specific provisions. Where such specific provisions do appear later in Constitution these later provisions will stand alone except where their meaning cannot be ascertained without reference to other material.

Nor can one conclude that the Legislature intended in this instance that the words of the section should be limited in some way as referred to in the above reference. I come to this conclusion based on the other and various provisions where the Legislature set out in detail what it required of government, for example in Chapter VI, sections 46-74 concerning the national legislature. It was open to the legislators at the time of writing to include additional provisions to section 114 but no such limiting provisions appear. It was equally open when the section itself was amended to its present form.

I would not therefore have reached the conclusion that section 114 was limited by the words found in the preamble. I would go further and say that, in reformulating the issues the learned trial judge, and thereafter failing to permit the parties to address him thereon, made a grave error. The basis on which the plaintiff asked the court to find a necessary implication was that the section itself was ambiguous, in that it did not set out the manner in which the Parliament should make such provision. The trial judge rejected the notion of ambiguity, and I am not surprised by such a finding. The present appellant responded on the basis of the case presented to the court of ambiguity. In this the present appellant was successful. There was no opportunity for the same appellant to address the court on the notion that, in the absence of ambiguity, a necessary implication might still be found.

If the Court wishes to proceed in this way it must at the very least allow the parties the opportunity to address it on the reformulated issues. This did not happen in the instant case. For that reason alone I would allow the appeal. But there is no merit in remitting this case back to the High Court for a new hearing on the old issues as they are all now before this court on appeal.

Having reached the conclusion that section 114 means that which is set out in it, one does not have to go on to consider the notions as set out in the agreement and pledge.

On the basis of the material submitted to the High Court and the assistance given to this court by counsel I do not have come to the conclusion that PGA 96 offends the constitution. Section 114 is clear and without ambiguity. Parliament has made provision for provincial government. It was required to do so. It has considered, as required, the role of traditional chiefs. Indeed it has decided to enhance their role, as compared to the repealed legislation. In this regards it is clear that women at present may be disadvantaged, given that traditional chiefs are male. This I conclude cannot be said to offend against the constitution as it is required consideration by that same constitution.

In the circumstances I would allow the appeal.

THE COURT OF APPEAL