Huniehu v Attorney-General [1997] SBCA 9; CA-CAC 5 of 1996 (24 April 1997)

IN THE COURT OF APPEAL
OF SOLOMON ISLANDS

Civil Appeal Case No. 5 of 1996

EDWARD HUNIEHU
Appellant

V

ATTORNEY-GENERAL
First Respondent

AND

SPEAKER OF NATIONAL PARLIAMENT
Second Respondent

Kapi P (Ag)
McPherson JA
Casey J

Date and Place of hearing: 12 December 1996, Honiara
Date of delivery of-judgment: 24 April 1997

Kapi P (Ag)

The background giving rise to this appeal is set out in greater detail in the judgment of Casey JA and therefore it is not necessary to set it out fully in my judgment.

By originating summons in the High Court the appellant sought the following declarations:

"1. A declaration that the sitting of the National Parliament on 21 December 1995 lacked a quorum.

2. A declaration that the Second Defendant acted unconstitutionally when he refused to adjourn Parliament following objection by the Plaintiff that there was no quorum.

3. A declaration that the absence of quorum from the sitting of the National Parliament on 21 December Tasivaronga-Mavo Development Bill 1995 unconstitutional and therefore void."

The Chief Justice heard the application He concluded in the following terms:

"In the circumstances it would not be within the proper exercise of the Court's discretion to grant the relief sought by plaintiff in paragraphs (1) and (2) of the Originating Summons. The order sought in paragraph (3) is not within the competence of this Court to grant. "

The appellant has appealed against this decision.

The particular actions which arose for consideration in this case were (1) that the Speaker refused to adjourn the Parliament for want of a quorum (2) that the National Parliament subsequently passed the Mamara-Tasivarongo-Mavo Development Agreement Bill 1995 in absence of a quorum.

Interpretation of the Constitution

The issues raised in this appeal involve important questions relating to the proper interpretation of the Constitution and its application to the circumstances in the present case. Before proceeding to deal with the Specific issues, it would be helpful to set out the general principles that should guide this Court in interpreting the provisions of the Constitution.

Constitution is the Supreme Law of the country and therefore any other law that is inconsistent with it is void to the extent of the inconsistency (s 2). It is the very foundation of the system of our government and all laws and any action taken by any person or authority must be examined or read subject to it. It has a special status and character and therefore must be treated differently.

The Constitution has adopted the Westminster model which is a term used to describe constitutions of ex-British colonies or territories in the 60s and the 70s in Africa and the Caribbean. One such constitution is the Constitution of Bermuda. Lord Wilberforce delivering the opinion of the Privy Council in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] A.C. 319 at 329 in interpreting the provisions of the Constitution of Bermuda said it:

"..calls for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism', suitable to give to individuals the full treasure of the fundamental rights and freedoms referred to. "

Those remarks were made in relation to the human rights provisions. In referring to the Constitution generally, the Board adopted a radical approach to the interpretation of the Constitution at 329:

"..it would be to treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law."

Lord Diplock in delivering the judgment of the Privy Council in Ong Ah Chuan v Public Prosecutor [1981] A.C. 648 at 669 said:

"...their Lordships would repeat what this Board has said on many previous occasions and most recently through Lord Wilberforce in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] A.C. 319: that the way to interpret a constitution on the Westminster model is to treat it not as it were an Act of Parliament but 'sui generis, calling for principles of interpretation of its own, suitable to its character... without necessary acceptance of all the presumptions that are relevant to legislation of private law'.."

The principles referred to in these cases have been adopted by this Court in The Speaker v Danny Philip (Appeal No, 5 of 1990) delivered on 30 August 1991.

The practical result of this approach may be summed up in the words of Kearney J (as he then was) in The State v The Independent Tribunal; Ex Parte Sasakila [1976] PNGLR 491 at 506-507:

"... in interpreting the laws, the judges are urged to use 'judicial ingenuity' in appropriate cases, to do justice. One consequence of its approach to interpretation is that the Court should not fail to give a provision the effect it considers the Parliament intended, by applying a literal or 'plain meaning' test nor should it attribute to the legislature an intention to produce a capricious or unjust result. The search throughout is for the intention of Parliament, a process which remains, formally at least, one of interpretation and not legislation, and one which the best guide remains the provisions of the Act itself "

I bear these general principles in mind in interpreting the provisions of the Constitution which arise for consideration in this case, Jurisdiction.

In a constitutional democracy such as Solomon Islands, the system of government is established and regulated by the provisions of the Constitution. On matters concerning rules of procedure of Parliament, Constitution appear to adopt one of two approaches. The first is that the Constitution may simply make provision for rules of procedure of Parliament to be prescribed by the Parliament (see s 62 of the Constitution). Such rules are usually designated as Standing Orders. Where such an approach is adopted, the Courts have held that there is no jurisdiction to enquire into the internal proceedings of Parliament in applying the Standing Orders.

Secondly, the Constitution itself may make provision for some rules of procedure of Parliament or where Standing Orders are made subject to the Constitution. Where such provisions are made, the Courts have held that there is jurisdiction to interpret the meaning of such a provision as well as determine its applicability to internal proceedings of the Parliament.

There are authorities from comparative jurisdictions around the South Pacific which support the two propositions set out above. I do not find it necessary to refer to these authorities as they are persuasive only. It is only necessary to refer to local authority. Danny Philip v The Speaker of the National Parliament, Civil Case No. 224 of 1990), a decision of Ward CJ delivered on 23 November 1990 in which he sets out the circumstances in which the Court may or may not enquire into the internal proceedings of the Parliament. The decision was appealed and the Court of Appeal affirmed the decision (see The Speaker v Danny Philip, Appeal No. 5 of 1990, a decision delivered on 30 August 1991).

It is clear in the present case that s 67 of the Constitution prescribes the question of quorum and the procedure for dealing with the question of a lack of a quorum. Even Standing Order 12 expressly makes reference to s 67 of the Constitution on matters relating to quorum. The only matter which may be prescribed by rules of procedure is the duration of are "interval" that is required to attempt to make up the quorum. This interval has beers determined by Standing Order 12 (2) to be a period of 15 Minutes. No issue arose with regard to the question of Interval.

It follows from what I have stated so far that authorities which support the proposition that the Courts have no power to enquire into the internal proceedings of the Parliament are not relevant and can have no application in the present case.

In the present case, the application before the High Court involves a question of whether the Speaker and the National Parliament have contravened s 67. It is clear that the High Court has jurisdiction to deal with any allegation that a provision of the Constitution has been contravened and then to consider whether appropriate declarations should be made under s 83 of the Constitution. After setting out the terms of s 83 the learned Chief Justice concluded:

"The jurisdiction of the Court is clear under that section. That the High Court has power to enquire into and to ascertain whether a provision of the Constitution has been contravened even if that involves examination of the internal workings of the National Parliament and that had been established in this jurisdiction in The Speaker v Danny Philip (supra)."

With respect the learned Chief Justice reached the right conclusion in law. The question is; what is the extent of this jurisdiction in the circumstances of this case? In my view this includes (a) the power to define the meaning of s 67 and to determine what quorum is required for a meeting of the National Parliament in order to transact any business (b) the power to consider whether or not s 67 has been contravened by the Speaker and the National Parliament (c) the power to determine what consequences may flow from any contravention of s 67 of the Constitution.

Interpretation of s 67 of the Constitution

In my opinion this provision prescribes two things. The first is that it prescribes the minimum number of members of the Parliament that is required to form a quorum in order to transact its business. The number required is expressed as "half of all the members" of the Parliament. According to the Speaker, there are presently 47 members of the Parliament (see para 6 of the Affidavit of the Speaker, Paul Joseph Toua, sworn 28 June 1996 on page 85 of the record). The required quorum in the circumstances would be half of that number. Speaker has calculated this to be 24 members,

Paragraph (l) of the originating summons simply sought a declaration that the sitting of the National Parliament on 21 December 1995 lacked a quorum. That simply required the High Court to declare what the quorum is under s 67 and whether the National Parliament complied with that requirement when it passed the Act on 21 December 1995.

In his reasons for decision the learned Chief Justice did not expressly deal with these issues. The reason is that all parties were agreed that the required quorum was "half of all the members" of Parliament and that there was no such quorum when the Parliament passed the Act on 21 December 1995. The concessions made by counsel for the respondents are set out in the Judgment (see page 122 of the record). The concession made by counsel for the Speaker is expressed in the following teams:

"The second defendant did not argue against the point that when there is no quorum, section 67 requires the Speaker to adjourn Parliament but contended that all that the Court can do in a situation where the section 67 requirements have not been complied with is declare that there seas no quorum "

The leaned Chief Justice did not reject these concessions and in fact proceeded to deal with other related issues on the assumption that the required quorum under s 67 was not complied with. The parties have not changed their positions on these issues before us on appeal.

With respect, the concessions made by the parties that the required quorum under s 67 is "half of all the members" of Parliament was correct in law. It was also not disputed as a matter of fact that there was no quorum when the Act was passed on 21 December 1995. In the Circumstances, I would have no difficulty in making the declaration sought.

Section 67 is expressed in general terms and therefore must be applied to all business that may be conducted by the National Parliament. I cannot find any expression in this provision which may limit its application to a particular business of the Parliament. A reading of s 67 of the Constitution together with Standing Order 12 points to the inevitable conclusion that the Constitution has exhaustively dealt with the question of quorum in respect of conduct of all business in Parliament. There is no gap in the law.

The second matter s 67 prescribes relate to the procedure for dealing with lack of a quorum. Where the number of members is less than half the members of Parliament, s 67 prescribes the procedure for overcoming the problem. Conversely, if there is lack of a quorum, a member of Parliament should raise the objection, the Speaker should suspend or adjourn the sittings for an interval to enable the members to make up the required quorum. If after the interval the required quorum is established, the National Parliament may then proceed to deal with the business placed before it. If on the other hand, the required number is not established, the Speaker shall adjourn the Parliament.

In this case the Speaker suspended the sittings of the Parliament for an interval of 15 minutes when there was no quorum. However, he refused to further adjourn the Parliament after the interval when there was still no quorum on the floor of Parliament. The question then arises; whether the Speaker breached s 67 when he refused to adjourn the Parliament? This is the subject of paragraph (2) of the originating summons. In dealing with this specific issue, the Chief Justice said (see page 125 of the record):

"In exercise of that right, the plaintiff in this case, raised the objection on the lack of quorum and having, raised that, the Speaker was under obligation, so it is argued on behalf of the plaintiff, to comply with section 67. As we have seen in this case, the Speaker, having suspended the sitting for fifteen minutes interval, refused to adjourn Parliament as required by section 67. That is clearly acting contrary to the requirement of section 67 of the Constitution which requires the Speaker to adjourn Parliament after ascertaining that there is still less than half of all the members present in Parliament. Indeed counsel for the first and second defendants have not sought to argue to the contrary." (emphasis added)

Later in his judgment (at page 137 of the record) the learned Chief Justice further repeated the same conclusion:

"In the present proceedings, as I have found, section 67 had been breached and that the plaintiff had a right to raise the issue that it was so breached by Speaker. That I can see no difficulty in so holding."

It is clear from these two passages that the Chief Justice was clearly of the view that the Speaker breached s 67. With respect the Chief Justice was correct in his conclusion on breach of s 67.

The Chief Justice then considered the question of whether the Parliament could pass the Act in question despite the fact that there was a lack of quorum. He concluded (see page 129 of the record):

" ... it would be perfectly in order if Parliament were to proceed and pass the Bill even though less than half of all the members of Parliament were present as it did in this case, as long as a 'majority' of the members 'present and voting' supports it. The underlying principle being that Parliament can still meet and transact businesses irrespective of whether a quorum is present or not. The decision to do so belongs to Parliament alone, falling in line with the privileges of its own proceedings without interference by anybody including the Courts. "

"The learned Chief Justice relied on several grounds for this conclusion. First he found support in s 68 and 71 of the Constitution. He also found further support for his conclusion from the common law cases which deal with powers of Courts and the Parliament in the United Kingdom. With respect the Chief Justice fell into error in coming to this conclusion. I will deal with each of the grounds upon which the Chief Justice based his conclusion.

First I will deal with the relevance of s 68:

"68. Subject to the provisions of the preceding section, Parliament shall not disqualify from the transaction of business by reason of any vacancy in its membership, and any proceedings in Parliament shall be valid notwithstanding that some person who was not entitled to do so took part in those proceedings."

This provision deals with two situations. The first is that there may be a vacancy in the Parliament when any business comes up for consideration in Parliament. A vacancy may occur by virtue of any of the circumstances set out in ss 49, 50, 51 or 52 of the Constitution. The provision does not deal with the question of quorum. It simply says that the Parliament shall not be disqualified from transacting business by virtue of any such vacation in its membership.

The second situation is that where a person who was not entitled to take part in the proceedings of the Parliament in fact took part in the proceedings. This envisages a member who participates in the proceedings of Parliament and is subsequently declared by the High Court to be invalidly elected as a member under s 57 of the Constitution. In those circumstances, this provision stipulates that such a subsequent ruling would have no effect on the validity of the proceedings of the Parliament. This provision does not deal with the question of quorum.

In respect of the former situation, there may be so many vacancies that it may effect the question of quorum. Where such a situation occurs, the section is clear about what provision should regulate the situation. The introductory words of s 68 are relevant. It says:

"Subject to the provisions of the preceding section..."

That is a direct reference to the requirement of quorum under s 67. This means that where the Parliament sits with any vacancy or vacancies, if the question of quorum arises, the question of quorum will be determined in accordance with s 67. I find that s 68 does not lend support for the conclusion reached by the Chief Justice.

Section 71 is in the following terms:

"71.-(1) Subject to the provisions of this Constitution, all questions proposed for decision in Parliament shall be determined by a majority of the votes of the members present and voting."

This provision deals with how a Parliament may decide a question put before it. It provides that it may be determined by a majority of votes. That is as far as this provision goes. It does not deal with the question of quorum. Like s 68, this provision is made subject to other provisions of the Constitution. This means that when matters relating to quorum arise, this must be determined in accordance with s 67.

Both s 68 and 71 are to be read subject to the requirement under s 67. Whether there is a vacancy or vacancies in its membership the Parliament is required to comply with the requirement of a quorum. Where there is a quorum under s 67 any question before the Parliament in those circumstances can be decided by a majority of votes.

In further support of his conclusion, tine learned Chief Justice relied on passages from the textbook, Parliamentary Practice by Erskine May which deal with the practice of Parliament in the United Kingdom. He also relied upon the principles of common law in the English cases. With respect, the common law cases and the textbook which deal with the English parliamentary practice can have no application to the case before us. It is only necessary to refer to a local authority on this point. In dealing with the same subject in Danny Philip v The Speaker of the National Parliament (Civil Case No. 224 of 1990, a decision of Ward C.J delivered oi1 23 November 1990) His Lord ship said:

"The question here is whether such a rule applies and if so, the extent to which it applies in Solomon Islands where we have a written Constitution as the supreme law. Study of the law in England is of undoubted value but where the principles of an unwritten constitution have been, to a great extent, supplement by a written constitution, such precedents must be adopted with care. This warning was given by White J. in Kenilorea v Attorney General (1984) SILR 179 @ 181 when he suggested a section of our Constitution –

'should not be interpreted in strict conformity with the situation as it has developed in the United Kingdom. This question was considered by the Privy Council in Liyangage v Reginam [1965] UKPC 1; [1966] 1 All E.R. 650, at 658 Lord Pearce said:-

'during the argument analogies were naturally sought to be drawn from the British Constitution. The British Constitution is unwritten whereas in the case of Ceylon their Lordships have to interpret a written document from which alone the Legislature derives its legislative power.'

On the other hand, I consider that it is clear the position existing before the adoption of a written constitution in Solomon Islands has an important hearing. As was pointed out by Lord Diplock in Hinds v The Queen [1976] 1 All E. R. 353 at 359:

'The new Constitutions.... evolutionary not revolutionary...provided for continuity of government through successor institutions, legislative, executive, and judicial, of which the members were to be selected in a different way but each institution was to exercise powers which, although enlarged, remained of a similar character to those that had been exercise by the corresponding institution that had replaced. "'

His lordship then set out the background to the struggle by the Parliament in England and the reluctance of the Courts to interfere with the internal proceedings of the Parliament. He then went on to say:

"However, as has been said, these matters now largely from part ref our Constitution and that written Constitution should not be negated or reduced to fit the situation in the United Kingdom unless that is the intention of our law. The Constitution defines, provides and protects many of the rights of people of Solomon Islands. By Schedule 3, it embraces the rules of the common law but only insofar as those rules are not inconsistent with its provisions. "

His lordship then made reference to s 83 of the Constitution and continued:

"By that section the jurisdiction of the High Court is clear. If an action is brought seeking a declaration on those grounds the Court must enquire into it to ascertain whether there has been a contravention and whether the applicant's interests are affected. A strict observance of the common law rule that the Courts cannot enquire into the internal proceedings of Parliament would preclude such an inquiry and is therefore inconsistent with section 83."

This decision was appealed and the Court of Appeal dismissed it (The Speaker v Danny Philip, Appeal No. 5 of 1990 dated 30 August 1991).

With respect I find that the learned Chief Justice erred in relying on the English cases.

Furthermore, the conclusion reached by the Chief Justice is contrary to the earlier conclusions that where procedures of the Parliament are set out in the provisions of the Constitution, the Courts have power to review the proceedings of the Parliament in accordance with the terms of the Constitution.

In the result I find that the learned Chief Justice erred in concluding that the National Parliament could transact business without a quorum in the circumstances of this case.

Before I leave this issue, I wish to refer to all opinion expressed by Casey JA "that unless and until a member objects, ordinary business can proceed with less than that number present." This statement addresses a slightly different question; is the Parliament required to comply with requirement that there are present in Parliament not "less than half of all the members thereof when no member of the Parliament makes an objection. It is not necessary to express a view on this question because in the present case the appellant raised the objection twice in accordance with s 67. The question is; where a member raised the objection twice and established that each time the objection is made there was less than half of all the members of Parliament, whether the Speaker was bound to adjourn the Parliament. It is this issue which I turn to consider now.

What Is The Effect of Nom-Compliance?

The major issue which arose for consideration was, what is the effect of non-compliance with s 67. The first point that should be made in this connection is that there is no express provision which stipulates what consequences may flow in the event that there is a breach of s 67.

In my view the proper approach in determining this issue is set out in the majority judgment of the High Court of Australia in Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 at 246:

"The principles of the common law distinguish sharply between invalid attempts to exercise a legislative power and departures from the prescribed course for its exercise which may not or do not bring invalidity as a necessary consequence. In the end the distinction must be governed by the intention expressed by the legislature conferring the power and prescribing the steps to be taken in the course of its exercise. But commonly no express declaration is to be found in the statutory power as to the effect on validity of departures from the procedure laid down. The question is then determined by reference to the nature of the power conferred, the consequences of its exercise, the character and purpose of the procedure prescribed" (emphasis added)

The Court there was concerned with the effect of non-compliance with a provision of a constitution. The issue before the High Court of Australia was not exactly the same as has arisen here in the case before us. However, the general principles with regard to the approach to the construction of the Constitution are sound and should be adopted as applicable in Solomon Islands.

What then is the nature of the power and the purpose of the requirement under s 67? The purpose of this requirement can be determined from the construction of the whole of s 67. Where there is no quorum this provision provides for the Speaker to suspend or adjourn the Parliament for an interval to give the members an opportunity to make up the required quorum. If the Parliament resumes after the interval and there is still no quorum the section provides that the Speaker shall adjourn Parliament. The intention is clear that the Parliament cannot transact any business until the required quorum is established. The requirement must be complied with as a matter of constitutiona1 law. This matter was not left to be decided by the Parliament as a matter of politics or an internal procedure of the Parliament. If the Constitution intended this, it would have allowed this matter to be prescribed by Standing Orders as in other matters.

The purpose of a quorum is not hard to find. The National Parliament is a representative body of the people of Solomon Islands. The representation on this body is carefully divided into constituencies under s 54 of the Constitution. Every constituency is represented by a member in the Parliament. In order to effectively represent the interests of all the constituencies in Parliament, a sufficient number of members should be required to enable the Parliament to transact any business. The Constitution has determined the minimum number of members of at least "half of all the members" of Parliament. In this context a quorum is important before the Parliament can transact any business.

What consequences should flow from non-compliance? If any business that is conducted without a quorum (as in the circumstances of the present case) is not invalidated, the Parliament can transact any business with any number of members present. This means that a small group of members could meet to transact business of Parliament. In an institution where politics is the dominant factor a small number of members motivated by political considerations could abuse the role of the Parliament. That cannot have been the intention of the Constitution. I find that the requirement of quorum is essential and must be complied with. Failure to comply with it would render any subsequent business invalid and of no effect. I so rule in respect of Mamara-Tasivarongo-Mavo Development Agreement Bill which was passed on 21 December 1995.

The Learned Chief Justice in his judgment made reference to the provisions of Crown Proceedings Act (Cap 7) and in particular s 18. His Lordship reached two conclusions with respect to the application of this Act. The first relate to the application of s 18. His Lordship at page 137 of the record said:

"I am disposed to the view that under paragraph (a) of subsection (1) of that section, declaratory relief is clearly available against the Crown and where in any proceedings it is established, it must be granted. That relief however is in a form of a declaration as to the rights of the parties.

In the present proceedings, as I have found, section 67 had been breached and that the plaintiff had a right to raise the issue that it was so breached by the Speaker. That I can see no difficulty in so holding.

Whilst this Court can exercise its discretionary power under section 83 (1) and (2) and grant a declaration against the Crown, I am in considerable difficulty in acceding to any suggestion that this Court can equally proceed and to grant the consequential relief in the form sought by the plaintiff in this case. Section 18 (2) of the Crown Proceedings Act makes it clear that the Court shall not make 'any order' if the effect of making the order would not be to give any relief which could not be made against the Crown. "

I have read the draft judgment of Casey JA in this respect and I agree that the learned Chief Justice misinterpreted s 18 (1) (a) and as the application in this case did not involve an injunction or specific performance, the High Court was entitled to exercise its jurisdiction and make the declarations sought.

The second matter the Chief Justice decided with respect to proceedings against the Crown involve the non justifiability of actions taken by the Governor-General At page 136 of the record His Lordship said:

"The validity of the assent to the Bill exercised on Her Majesty's behalf of the Crown by the Governor-General and performed in accordance with the Constitution. In short this case is clearly one which can be regarded as an action against the Crown. Although not specifically put by Mr. Waleilia, but I take it from his contention that the validity of the Bill having been passed by Parliament and assented to by the Governor-General cannot be impugned."

Section 59 (2) requires that where a Bill is passed by the Parliament it shall be presented to the Governor-General who shall assent to it forthwith. It may be argued that assent to a Bill may come under s 31(3) of the Constitution and the validity of a Bill which has been assented to by the Governor-General may not be questioned in any court of law. The issue in this case is not whether the Governor-General has acted in accordance with s 59 (2) of the Constitution. The question is whether the Parliament had the required quorum under s 67 when it passed the Bill. That is a different question altogether and s 31 (3) can have no application. I have already held that the Bill enacted by the Parliament is invalid and of no effect. An assent given by the Governor-General to such a Bill under s 59 (2) cannot make it valid.

I would allow the appeal and would make orders in terms proposed by McPherson JA. As the Attorney-General supported the appeal, I would order that the second respondent pays the appellant's costs of and incidental to this appeal and of the proceedings below.

McPherson J.A.

I have had the advantage of reading the reasons of Casey J.A. For the most part, I respectfully agree with what he has written. However, on some questions of law I have reached conclusions which lead in some respects to a different result on the appeal.

The relevant provisions of the Constitution are set out in the reasons of Casey J.A. I will repeat them here no further than is necessary. To my mind there are three principal questions on this appeal. The first is whether the Speaker was bound to comply with s. 67 of the Constitution adjourning Parliament once objection was taken by the appellant to the absence of a quorum and the requisite period of time had elapsed without a quorum being constituted. The second is whether the omission to comply with s. 67 had the consequence that the Bill (to which I will refer here as "the impugned Act") that was being debated on 21 December failed to attain the status of an Act of Parliament, or, in other words, is invalid or void. The third is whether the Court has jurisdiction which it ought to exercise to declare that to be the result. The three questions do, to some extent merge into one another; but it is desirable, even if not altogether possible, to consider them separately.

With respect to the first question, s.67 is expressed in mandatory form. It provides that if objection is taken that less than half of all the members of Parliament are present, the person presiding "shall thereupon adjourn Parliament". The person presiding, who in this case was the Speaker himself, must first allow such interval to elapse "as may be prescribed in the rules of procedure"; but, having done so, if he then ascertains that the number of members is still less than half of all members", he is required by s.67 to adjourn Parliament. The "rules of procedure" referred to in Con. s.67 are those contemplated in Con. s. 62, which provides that "subject to the provisions of this Constitution, Parliament may ... make ...rules for the regulation and orderly conduct of its proceedings ...".

With respect to the first question, s.67 is expressed in mandatory form. It provides that if objection is taken that less than half of all the members of Parliament are present, the person presiding "shall thereupon adjourn Parliament". The person presiding, who in this case was the Speaker himself, must first allow such interval to elapse "as may be prescribed in the rules of procedure"; but, having done so, if he then "ascertains that the number of members is still less than half of all members", he is required by s.67 to adjourn Parliament. The "rules of procedure" referred to in Con. s.67 are those contemplated in Con. s. 62, which provides that "subject to the provisions of this Constitution, Parliament may ... make ... rules for the regulation and orderly conduct of its proceedings... ".

Pursuant to that power, Parliament has made Standing Orders for the regulation of its proceedings. The relevant Standing Order for present purposes is Standing Order 12. It provides in para. 12(1) that any question as to the quorum of Parliament shall be determined in accordance with Con. s.67 "as supplemented by this Order". Standing Order 12(2) provides that, for the purpose of s.67 of the Constitution, the interval after which the Speaker may ascertain the number of members present shall be 15 minutes. It goes on to say that if the Speaker adjourns Parliament in pursuance of s.67, he shall do so without the question being put, "and the Assembly shall then stand adjourned to the next sitting day in accordance with Order 9". Standing Order 12(1) and Standing Order 12(1) both expressly recognize the dominant force of Con. s.67. Even if they did not, it would not matter. The power of Parliament under Con. s.62 to make Standing Orders for regulating its proceedings is itself expressed to be "subject to the provisions of this Constitution ...". One of those provisions is Con. s.67, the interval prescribed under Standing Order 12(2) is 15 minutes. The Speaker here was therefore allowed 15 minutes within which to ascertain the number of members present, after which he was required to adjourn Parliament, which in the present case he failed to do.

Section 2 of the Constitution provides that:

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

There can be no doubt about the meaning of s.2. In speaking of the Constitution as "supreme law", it means that it is binding on all the national organs of government, whether legislative, executive and judicial. As such, it is binding on the National Parliament and on the Speaker. The Constitution is of course, liable to be amended by Parliament provided the requirement of s.61 of the Constitution are complied with. The method laid down varies according to the nature or identity of the provisions proposed to be altered. If it is one of the provisions referred in then the Bill to alter it must be supported at the final voting on two separate readings in Parliament by the votes of not less than three-quarters of all members of Parliament. Otherwise it is sufficient under Con. s. 61(3) if it is supported at such final voting by the votes of not less than two-thirds of all members.

Section 67 is one of the provisions that falls outside the scope of Con. s.61(2). It is therefore within the ambit of Con. s.61 (3), which on a final vote requires the support of two-thirds of all members of Parliament in order to effect an alteration of its provisions. It is not suggested that any such alteration of s.67 has at any time taken place. Yet if the Speaker's action in the present case is allowed to stand, the result will be that s.67 of the Constitution will, at least for the purpose of passing the impugned Act, have been altered without complying with the requirements of Con. s.61(3). There is nothing in the Constitution that permits it to be amended, altered or disregarded by the unilateral action of the Speaker.

When these matters are considered, there is, it seems to me with respect, no valid reason for assigning to the provisions of Con. s.67 a lesser place or significance in the constitutional scheme than is allowed to other provisions of the Constitution. The Constitution does not distinguish between various provisions on the basis that some are, and some are not, binding in differing degrees. Section 61 introduces a difference in the procedure for altering constitutional provisions that may well make it more difficult to amend those included in s.61(2) than those in s.61(3). But, until amended, or after the required process of amending has been gone through, the status of each provision of the Constitution is, legally speaking, of equal force with any other. On the face of it, each of them is, within the meaning of Con. s.2, "supreme law" in Solomon Islands.

It is Primarily for this reason that I do not consider that much is to be gained on this point by reference to the decision of the High Court of Australia in Clayton v Heffron (1960)) [1960] HCA 92; 105 C.L.R 214, to the effect that a provision of the New South Wales Constitution Act was directory only in requiring as it did a conference of both Houses of the legislature of that State before holding a referendum on legislation to abolish the Legislative Council. Speaking generally, the constitutions of the Australian States are, or at the time of that decision were considered to be, freely alterable. They were "flexible" as distinct from "rigid", and so generally capable of being altered by simple Acts of parliament. See :McCawley v. The King [1920] A.C. 691. The only material exception to that general rule was imposed by s.5 of the Colonial Laws Validity Act 1865 (U.K.) concerning compliance with the "manner and form" in which a constitutional amendment was to be carried out. The High Court held that the provision for holding such a conference was not an imperative requirement of the "manner and form" procedure for a referendum to abolish the Legislative Council. See Clayton v. Heffron [1960] HCA 92; (1960) 105 C.L.R. 214, 248.

It is true that in reaching that conclusion, Dixon C.J., McTiernan, Taylor, and Windeyer JJ. stressed the inconvenience that would follow if a contrary view of it were to be adopted. The Legislative Council could readily stultify the procedure that was provided for its abolition by, refusing as it had done in that instance, to participate in the requisite conference. It may perhaps be said that, by analogy, members of the parliament of Solomon Islands might deliberately absent themselves from proceedings in parliament in order to prevent the passing of a legislative measure or measures of which they do not approve. It is an argument that is not without force; but it is largely offset by the presence of the provision in s.50(e) of the Constitution that a member vacates his seat if he is absent from two consecutive meetings of Parliament without having obtained from the person presiding permission to be or remain absent. It would scarcely be possible for a member to persist in absenting himself from meetings of Parliament without incurring the risk of ceasing to be a member under Con. s.50(e). What would result then would be a "vacancy" under Con. s.68, which would not be an obstacle to the transaction of business. If, on the other hand, he and a sufficient number of other members resolved to absent themselves in order to prevent Parliament from proceeding, it would be evidence that the Prime Minister and Cabinet lacked the support of the majority in Parliament. The result then would surely be that some other person would be elected Prime Minister in accordance with the provisions of s.339(1) and Schedule 2 to the Constitution. See, with respect to these provisions, Billy Hilly v. Pitakaka (Civil Case No. 299/94; Oct. 29 1994, CA); and Governor-General of Solomon Islands v. Billy Hilly (Civil App. No. l0/994; Oct. 29, 1994, C.A.).

It is not. I think, possible to say that in no circumstances could inconvenience follow from giving effect to s.67 of the Constitution according to its tends. But that is the more or less inescapable result of having a constitution that embodies riles of government. Not having any constitution at all is liable to produce even greater inconvenience. In my respectful opinion Con. s.67 must be given its natural meaning and effect, which in the present case is that the Speaker was in the circumstances that prevailed on 21 December 1995 bound to adjourn Parliament once he ascertained, after the interval prescribed in Standing Order 12(2) had elapsed, that the number of members present was still less than half of all the members of Parliament. If that is not the intention explicit or implicit in s.67, then it is difficult to see what useful function was served in singling it out for specific inclusion in the Constitution. It could instead have been left simply as a matter to be provided for, along with other rules of procedure by the Standing Orders made under Con. s.62 for the regulation and orderly conduct of proceedings of Parliament.

The question that follows, which is the second of those identified at the beginning of these reasons, is to determine the validity or otherwise of the impugned Act which was adopted after the absence of a quorum was confirmed by the Speaker. From what I have already said, it follows almost as a matter of course that I consider it to be invalid. Invalidity is the ordinary consequence in law of enacting or purporting to enact a legislative measure in breach of a mandatory requirement of a constitution amounting to "supreme law". What was said by the High Court of Australia in Cormack v. Cope (1974) 131 C.L.R. 432, 454, is sufficient authority for that purpose; but it is useful to refer to the decision of the Privy Council in Rediffusion (Hong Kong) Ltd. V Attorney-General of Hong Kong [1970] UKPC 12; [1970] A.C. 1136, which is also relevant to the further submission on appeal that Parliament is master of its own procedure and that Court should not and will not enquire into the internal workings of Parliament. In the case of the British Parliament, the rule to that effect is well established and was re-affirmed in British Railways Board v. Pickin [1974] UKHL 1; [1974] A.C. 765; [1974] 1 All E.R. 609. Whether it applies in Solomon Islands, or does so to the same extent as in the United Kingdom, is another matter.

Clause 2(1) of Schedule 3 to the Constitution provides that the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as any of three specified exceptions apply. Of these, the first is that: "(a) they are inconsistent with this Constitution or any Act of Parliament". The effect is to confer on the Constitution primacy over the common law and equity. To the extent of any inconsistency between a rule of the common law or equity and a provision such as Con. s.67, the constitutional provision must prevail.

It is, in any event, open to some doubt whether the rule affirmed in British Railways Board v. Pickin can properly be characterized as one of common law or equity. It is probably more accurately described as being part of what is commonly called the law and custom of Parliament (lex et consuetude Parliamenti) which in Fenton v. Hampton [1858] EngR 321; (1858) 11 Moo P.C. 347, 397; [1858] EngR 321; 14 E.R. 727, 745, was held not to have been introduced into a colony (in that case Tasmania) by a statutory provision providing for the application of English law. See also Kielly v. Carson [1842] EngR 593; (1842) 4 Moo P.C. 63; 13 E.R. 225 (on appeal from Newfoundland); and Doyle v. Falconer [1866] EngR 184; (1866) L.R. 1 P.C. 328 (on appeal from Dominica). In all three cases the point resolved was that the legislatures of those colonies had not received the power exercisable by the two Houses of British Parliament of punishing for contempt, which on the contrary was said to be part of the lex et consuetude Parliamenti applicable excusively to the Lords and Commons unless specifically adopted by local legislations: cf. Speaker of the Legislative Assembly of Victoria v. Glass [1871] EngR 7; (1871) L.R. 3 P.C. 560. Nowadays, however, it is probably more accurate to express the position in the terms in which it was stated by Lord Diplock in Rediffusion (Hong Kong) Ltd. v. Attorney-General [1970] UKPC 12; [1970] A.C. 1136, 1154-1155. In referring there to the question whether the courts were entitled to enquire into the affairs of a legislative body (in that case the legislature of Hong Kong) his Lordship said:

"This question cannot be answered by applying to Hong Kong the legal principles which govern the jurisdiction of English courts to interfere in the conduct of proceedings in the fully sovereign Parliament of the United Kingdom. It is well settled that the common law of England which is introduced into a colony does not include the whole of the lex et consuetude parliamenti. Members of a legislative assembly in a colony do not enjoy all the privileges and immunity from control by courts of justice which are enjoyed by members of Parliament of the United Kingdom, but only such of those privilege and so much of that immunity as are essential to enable them to carry out their functions under the colonial constitution (Kelly v. Carson (1842) 4 Moo. P.C.C. 63; Doyle v. Falconer (1866) [1866] EngR 184; L.R. 1 P.C. 328)."

Having referred to the decision of the Privy Council in Barton v. Taylor [1886] UKLawRpAC 13; (1886) 11 App. Cas. 197, Lord Diplock proceeded ([1970] A.C. 1136, 1155):

"This case is of twofold significance to the jurisdiction summons. First, neither the Supreme Court nor the Judicial Committee hesitated to entertain an action in which relief was sought for unlawful acts committed by members of a legislative assembly in the course of deliberative proceedings in the chamber itself. Secondly, the court exercised jurisdiction to inquire into and to determine not only the lawfulness of a resolution of the assembly but also the legal right of a person to take part in its legislative proceedings, a determination which directly affected the conduct of the legislative process itself. Although the argument that a court of justice had no jurisdiction 'to enquire as to what is done within the walls of Parliament' had been advanced at the hearing in the Supreme Court it received no mention in the judgment. Both that court and the Judicial Committee treated it as axiomatic that the court had jurisdiction to inquire into and to grant relief for unlawful conduct by members of a legislative assembly in the course of legislative proceedings in the chamber."

The National Parliament of the Independent Solomon Islands is not to be confused with a mere colonial legislature of the kind considered in the Privy Council decisions referred to. It is in every way the sovereign law-making body of the nation. Equally, however, it is not to be confused with the Parliament of the United Kingdom, which is a product of a long process of historical evolution and revolution, having rules, practices and customs that are not necessarily to be taken as having been transplanted to legislatures in other parts of the world, even if in many respects they are based on the Westminster model. It is a fundamental difference between the British Parliament and the Parliament of Solomon Islands that our Parliament is the creation of written Constitution that is declared in Con. s.2 to be the supreme law of the land. In this respect it may be said to resemble the legislatures of the United States, Canada, Australia, and India rather than that of the United Kingdom.

In Rediffusion (Hong Kong) Ltd. v. Attorney-General [1970] UKPC 12; [1970] A.C. 1136, the questions for decision were whether certain copyright legislation that was being passed in that colony was repugnant to the British Copyright Act 1956, and, if so, whether the Supreme Court had jurisdiction to declare it void as being contrary to s.2 of the Colonial Laws Validity Act 1865 (U.K.). In answering both questions in the affirmative, the Privy Council regarded s.2 of the Colonial Laws Validity Act as binding on the colonial legislature as a species of fundamental law, which to the character of imperial legislation it undoubtedly then was. By parity of reasoning, in the present case the Constitution is the supreme or fundamental law, which, if it is not complied with, invalidates a measure like the impugned Act in this instance that was not passed at proceedings of Parliament conducted in conformity with the provisions of s.67. It was not the authentic expression of the will of Parliament constituted as required by that section of the Constitution.

It must be acknowledged that in arriving at the decision in that case, Lord Diplock said ([1970] A. C. 1136, 1160) that s.2 of the Colonial Laws Validity Act was "not concerned with the procedure followed in the law-making process before a proposed measure becomes law." It was on that footing that their Lordships held it was not competent to grant an injunction to restrain the measure from being presented for signification of the Governor's assent. Repugnancy, his Lordship said, "falls to be determined at the date of the enactment, not before"; and "it cannot be said to be ultra vires in any proper sense of that expression for a Legislative Council to debate and pass a bill, merely because its terms are repugnant to existing provisions of an Act of Parliament extending to Hong Kong". There is, as Lord Diplock recognised in that case ([1970] A.C. 1136, 1157), a difference between merely debating and actually passing a bill, and a court may have jurisdiction to enquire whether or not it would be unlawful for a legislature to pass a bill, even if it would not interfere with the process of debating it. Having regard to the form of s.67 of the Constitution, a question may one day arise as to whether or not in Solomon Islands the Court would have or would exercise jurisdiction to intervene in the law-making process at the stage of debate, if it was still under way, in a case where s.67 was being contravened. But it is not necessary to consider or to decide that question The impugned Act was dealt with on 21 December 1995; and its validity or otherwise now falls to be determined is the light of all the events that have happened, and not as if it were now still under debate in Parliament.

As to that, some reliance was placed on the provisions of s.59(4) of the Constitution, which provides that all laws made by Parliament are to be styled "Acts of Parliament", and that the words of enactment shall be "Enacted by the National Parliament of Solomon Islands". Section 59(4) assumes, however, that by that stage the law-making process contemplated by the Constitution has been validly carried out. Section 59(2) provides that the laws referred to in that section shall take the form of Bills "passed by Parliament", which are to become "law" when assented to by the Governor-General on presentation to him. Section 59(1) which confers on Parliament the power to make laws for the peace order and good government of Solomon Islands is, like various other provisions that have been considered here, also expressed to be "subject to the provisions of the Constitution". A measure that has not been passed in accordance with the provisions of the Constitution is not a law at all, and neither the Governor-General's assent to it, nor the statement that it has been enacted by Parliament, can make it so. Indeed, again having regard to the form of Con. s.67, it is perhaps more correct to say that the Bill was never passed by "Parliament" at all. When Parliament is not sitting because it is adjourned, as by Con. s.67 it ought to have been in this instance, it is not capable of passing any Bill into law.

A somewhat similar point has been raised in two decisions of which I am aware. Harris v. Minister .for the Interior 1952 (2) S.A. 428 concerned an attempt to remove voters of mixed race from the electoral roll in South Africa without observing the constitutional requirement of the South Africa Act 1910 that their rights could be taken away only by a two-thirds majority of both Houses of the South African Parliament sitting together. Instead of following that procedure, the Bill was passed (or purported to be passed) by a simple majority of each House sitting separately. The Bill was assented to by the Governor-General, but the Appellate Division of the Supreme Court of South Africa held it was void on the ground that it had not been passed by "Parliament" sitting and acting as required by the constitution embodied in the South Africa Act (see 1952(2) S.A.428, 463). In the course of argument, reliance was placed by counsel on the fact that the Bill had been assented to, and must therefore be taken to be valid (see 1952(2) S.A. 428, 445-446); but that did not prevent the Court from holding it void.

The second case is the decision in Namoi Shire Council v. Attorney-General [1980] 2 N.S.W.L.R. 639, where an Act of the New South Wales Parliament was claimed to be invalid by reason of non-compliance in passing it with standing orders of the New South Wales Legislative Assembly. In the end, McLelland J. held that the validity of the Act was not affected by the non-compliance alleged. There was nothing in the State constitution or standing orders of New South Wales resembling s.2 of the Constitution of Solomon Islands which conferred on them the character or status of supreme law. However; before reaching that conclusion, his Honour held that the question whether the Act was valid depended, in the case of a legislature deriving its existence or authority from statute, on whether "some act or event is made a condition of the authentic expression of the will of the legislature, or otherwise of the validity of a supposed law" ([1980] 2 N.S.W.L.R. 639, 643); and that that question was examinable in a court in which the validity of the supposed law was placed in issue, notwithstanding it might involve the internal proceedings of one of the constituent Houses of the legislature. In support of this conclusion, his Honour referred to Clayton v. Heffron [1960] HCA 92; (1960) 105 C.L.R. 214, 234-2;5; Bribery Commissioner v. Ranasinghe [1964] UKPC 1; [1965[ A. C. 172, 194, 195; Rediffusion Hong Kong Ltd. v. Attorney-General [ 1970] A.C. 131 C.L.R. 432. 453,454, 466, 467, 1136 1154, Cormack v. Cape (1974) 131 C.L.R. 432, 453-454, 466-467, 471-473; and Victoria v. Commonwealth [1975] HCA 39; (1975) 134 C.L.R. 81, 117, 162, 180-182. The learned judge also rejected a submission that, as regards the passing of a bill; the Parliamentary record was conclusive. He held that this was a rule derived from the mediaeval origin of the British Parliament as a court exercising judicial functions, which was a status not shared by a legislature like that of New South Wales; and that it was inconsistent with the undoubted power of a court to declare Acts of Australian legislatures invalid as going beyond legislative power ([198012 N.S.W.L.R 639, 642-643).

This introduces what is really the third of the three principal questions identified at the outset of these reasons. It is, of course, not only Australian courts that exercise the power to declare legislation invalid. In the United States Supreme Court the Power was first asserted in Marbury v. Madison (1803) 1 Cranch [1803] USSC 16; (5 US.) 137, 177, where Marshall CJ said it was "emphatically the province and duty of the judicial department of government to say what the law is". As a matter of history, it may be possible to trace the source of that power back to pre-Independence American colonial times, where the Privy Council not infrequently held enactments of colonial legislatives to be invalid. See Joseph H. Smith, Appeals to the Privy Council from the American Plantations, at 537-551. Adopting such a course in a matter like this involves no unwarranted intrusion by the courts into the proceedings of Parliament, nor any such interference with the privilege of members of Parliament to exercise their right of freedom of speech to the full: see Cormack v Cope (1974) 131 C.L.R. 432, 453-454, 466-467, 471-473; Namoi S.C. v Attorney-General [1980] 2 N.S.W.L.R. 639, 643-644. Indeed in the present case the objection taken under Con. s.67 arose not from anything that was said in Parliament, but from the fact that over half of all the members were not there to say or do anything at all.

In any event, the facts, so far as relevant here, are not in dispute and call for no inquiry by the courts. The only question is their legal consequences, which, as Marshall C.J. observed in 1803, it is "emphatically" for the Court to determine. The task of determining those consequences is imposed by the Constitution itself. Subject to exceptions not relevant here, s.83 of the Constitution vests in the High Court of Solomon Islands jurisdiction to determine "whether any provision of the Constitution ... has been contravened and to make a declaration accordingly" : see s. 83(2). The Jurisdiction may under Con. s.83(1) be invoked "if any person alleges that any provision of this Constitution has been contravened ... and that his interests are being or are likely to be affected by such contravention ... ". There is a proviso to s.83(2) which requires the High Court to refrain from making such a declaration unless affirmatively satisfied that the interests of the applicant under s.83(1) are being or are likely to be affect. I do not consider, there is any doubt that the appellant Hon. Edward Huniehu satisfies the "interest" requirements of those provisions. He is an elected member of Parliament and was himself the member who raised the objection that the requisite number of members under Con. s.67 were not present, and that the proceedings must therefore be adjourned. It is perhaps not perfectly clear on the material before the Court that the applicant also voted against the Bill; but it is plain that he was objecting to the proceedings in Parliament on the constitutional ground now relied on. In my respectful opinion, he had an "interest" (which in this particular context is obviously not confined to a pecuniary interest) sufficient for the purposes of ss.83(1) and 83 (2) to enable him to make the present application. As the Attorney-General observed, if a member of Parliament, who is present when such a question arises and who raises the objection himself, does not have the standing to apply to the Court under those provisions, it is difficult to conceive of anyone else who would have the requisite interest.

The discretion of the Court to make declarations and grant relief of the kind sought here ought to be exercised with great care and attention.

Nevertheless, it is a discretion that, when invoked as it is here, ought in an appropriate case to be exercised without undue hesitation in order to ensure that in Solomon Islands the Constitution remains the supreme law.

I would allow the appeal and make the following declarations:

1. A declaration that the sitting of the National Parliament on 21 December lacked a quorum, in that there were at all times after the appellant took objection under section 67 of the Constitution less than half of all the members of Parliament present in Parliament.

2. A declaration that the second respondent defendant acted in contravention of section 67 of the Constitution refusing or failing to adjourn Parliament in accordance with that section.

3. A declaration that in consequence of the matters referred to in paragraphs 1 and 2, a Bill described as the Mamara-Tasivarongo-Marvo Development Act 1995 and purporting to have been enacted by the National Parliament of Solomon Islands:

(a) is not a valid enactment of the National Parliament; and

(b) is void and of no legal effect.

In proposing these declarations, I have departed slightly from the form, but not I believe the substance, of those sought by the appellant. I trust that the alteration will not be taken amiss by Mr Nori of counsel; but I consider it gives more precise effect to the relief that is being sought and may properly, be granted in this Court.

The second respondent defendant should be ordered to pay the appellant's costs of and incidental to this appeal and of the proceedings below.

Casey J.A.

This Appeal from the judgment of Muria C J delivered on 29 August 1996 involves the meaning and effect of S. 67 of the Constitution dealing with the procedure to be followed in Parliament when a member has objected that there are less than half the members present.

The relevant facts extracted from His Lordship's judgment are that on the 21 December 1995 the Mamara-Tasivarongo-Mavo Development Agreement Bill 1995 was presented for a second reading and members proceeded to debate it. Some of them criticised the failure to consider recommendations by the Bills and legislative Committee. The appellant, who was a member present, objected that there was no quorum and cotended that the Bill should not be debated. In compliance with S. 67 and the relevant Standing Order; the Speaker suspended the sitting for 20 Minutes. On its resumption there was still no quorum and the appellant repeated his objection. The Speaker ruled that the debate on the Bill should continue and it was passed on its third reading later that day, during which there never was a quorum. It was duly assented to by the Governor-General and published as an enactment of the National Parliament.

Section 67, under the side note "Quorum" reads:-

If objection is taken by any member of Parliament present that there the present in Parliament (besides the person presiding) less than half of all the members thereof and, after such interval as may be prescribed in the rules of procedure of Parliament, the person presiding ascertains that the number of members is still less than half of all the members, he shall thereupon adjourn Parliament.

It should be noted that apart from the side-note the Constitution does not use the word "quorum" and there is no other provision requiring the presence of a minimum number of members for the conduct of ordinary Parliamentary business. Accordingly that word is used in this judgment as a reference to half the members prescribed in S 67.

On 29 February 1996 the appellant issued an Originating Summons against the respondents seeking the following:-

1. A declaration that the sitting of the National Parliament on 21^st day of December 1995 lacked a quorum.

2. A declaration that the second defendant acted unconstitutionally when he refused to adjourn Parliament following the objection by the Plaintiff that there was no quorum.

3. A declaration that the absence of a quorum from the sitting of the National Parliament on 21^st day of December, 1995 renders the subsequent passage of the Mamara-Tasivaraongo-Mavo Development Agreement Bill, 1995 unconstitutional and therefore void;

His Lordship discussed S. 67 and its place in the constitution. He was satisfied that, by way of exception to the Common Law rules, the Court has power to examine the proceedings of the National Parliament to ascertain whether there had been a breach of S. 67. He concluded that there was such a breach where the Speaker failed to adjourn Parliament, but that this did not prevent it from debating the Bill and passing it into law, because he considered that Parliament is entitled to absolute privilege over its internal proceedings, and that the Court has no power to pronounce on the validity of what happens in the House. Further, he regarded the words in the published Act - namely, "Enacted by the National Parliament of the Solomon Islands" (required by S. 59(4) of the Constitution) - as conclusive evidence that the Act was authentic, preventing the Court from going behind it and questioning how it was enacted and became law.

In the result he exercised his discretion not to make the declarations sought in paras l and 2 of the summons, notwithstanding his conclusion that there had been a breach of S.67. He ruled that the declaration of invalidity sought (para 3) was not one within the competence of the Court to grant, and refused it. Having regard to the genuine motives of the Appellant, he thought it appropriate that each party should bear his own costs and made no order.

In his Notice of Appeal the Appellant sought a variation of the declarations applied for in the Originating Summons. In substitution he now asks for declarations that:-

(a) The sitting of the National Parliament on 21st day of December 1995 lacked a quorum.

(b) The action of the second defendant in refusing to adjourn Parliament as required by section 67 of the Constitution was unconstitutional.

(c) The meeting of Parliament held on 21 December 1996 (sic) subsequent to the Second Defendant's refusal to adjourn Parliament was unlawful, unconstitutional and lacked the powers to enact laws for "the peace order and good government of Solomon Islands."

(d) The passage of the Mamara- Tasivarongo-Mavo Development Agreement Bill 1995 was unconstitutional and void.

Apart from the need to correct "1996" to "1995" in (c), these changes do not affect the substance of the judgment under appeal or the nature and application of the relevant principles.

Mr. Nori's submission for the Appellant was straightforward: S. 67 was mandatory and in the circumstances the Speaker was obliged to adjourn Parliament, which would then stand adjourned until the next sitting day under the relevant Standing Order 12(2), The members present for the rest of the day were not there in Parliamentary session and could not transact any Parliamentary business. Accordingly, the purported passage of the Bill on its third reading that day was ineffective and its enactment as legislation was void.

With commendable independence, the Attorney-General supported the Appellant's case. On the other hand, Mr Waleilia for the Speaker (the second respondent) generally supported the reasoning and conclusions expressed in the Judgment.

It was accepted that the High Court had jurisdiction under S. 83 to determine whether Parliament had contravened S. 67; and that the appellant, as a sitting Member, was a person whose interests were likely to be affected by such contravention, and as such was entitled to apply to that Court for a declaration and relief. This is so, notwithstanding the well-settled principle that the proceedings in Parliament cannot be questioned in the Courts. They have a duty to interfere "if the constitutionally required process of law-making is not properly carried out" - per Barwick C.J in Cormack v Cope (1974) 131 CLR 432, 453. In the Judgment under appeal His Lordship cited to the same effect The Speaker v Danny Philip Civ. App. No 5 of 1990; Sanft v Fotofile [ 1987] LRC (Const, 247 and Siale v Fotofile [1987] LRC (Coast) 240. He noted that the respondents did not argue that the Speaker had not contravened S. 67 in the way alleged, and nor did they in this Court. The issue was the effect of that non-compliance.

In dealing with this question the Chief Justice said that the Courts will normally interpret a statutory or a constitutional requirement as being imperative and requiring full compliance; and that non-compliance will render invalid an action which is not taken in accordance with it. He added that there were exceptions and mentioned the familiar - and often confusing - concepts of – "mandatory" and "directory" requirements, entailing invalidity on breach of the former, but not of the latter. With respect, I think he may have over-stated the Courts' approach in suggesting that full compliance is normally required, with consequent invalidity on default. There is a helpful summary of the position in Vol 1 (l) of Halsbury's Laws of England (4th Edn) at para 80 p.147 dealing with the effect of non-compliance with procedural statutory' requirements:

In many cases the legal consequence of non-compliance with procedural or formal requirements has been regarded as wholly or partly dependent upon the answer to the question whether the requirement in question is to be classified as mandatory or directory, but a variety of different meanings have been attached to this distinction..... In classifying a provision as mandatory or directory, the court must look to its purpose and its relationship with scheme, subject matter and objective of the statute in which it appears, and must attempt to assess the importance attached to it by Parliament. It is broadly true that such provisions will be more readily be held to be directory if they relate to the performance of a statutory duty, especially if serious public inconvenience would result from holding them to be mandatory...."

This approach is applicable notwithstanding that the relevant provision may be couched in imperative language (as is the case with S.67), or that there is no stipulation forbidding action in breach, or declaring such action invalid, it affords a useful guide in determining the effect of a breach of a procedural Constitutional requirement, but the analogy with ordinary statute law must not be carried too far, in view of the special character of the Constitution, requiring the Court to respect and uphold its integrity.

In a passage in p 7 of his judgment the Chief Justice appeared to accept the submission by appellant's counsel that S. 67 imposed a mandatory requirement, but in the context of the judgment as a whole, I think he was saying no more than that the section was couched in imperative terms, which are not conclusive on the question of validity of the legislation. He went on to mention the decision of the High Court of Australia in Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214, to the effect that a requirement under the New South Wales Constitution Act was only directory when it called for a conference of both Houses as a condition of holding a referendum on legislation to abolish the Legislative Council. In their judgment the Majority said at p 247:

Lawyers speak of statutory provisions as imperative when any want of statutory compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfill them does not mean that resulting act is wholly ineffective, is null and void. It is almost unnecessary to say that the decided cases illustrating the distinction relate to much humble matters than the validity or invalidity of the constitution of the Legislature of a State. But in them all the performance of a public duty or the fulfillment of a public function by a body of persons to whom the task is confided is regarded as something to be contrasted with the acquisition or exercise of private rights or privileges and the fact that to treat a deviation in the former case from the conditions or directions laid down as meaning complete invalidity would work inconvenience or worse on a section of the public is treated as a powerful consideration against doing so.

This approach is reflected in the extract from Halsbury quoted above.

His Lordship discussed the practical consequences of a ruling invalidating legislation passed after a breach of S. 67, emphasising the ability of self-interested members to thwart the business of the House by absenting themselves to ensure there was no quorum, and that they could do this on successive days. With respect, I think this problem is more apparent than real. If members were able to act regularly in this way, it would indicate a government unable to command a majority in Parliament, and it should resign.

After considering the place of this section in the law-making provisions of the Constitution, His Lordship concluded it would be taking its effect too far to accept that non-compliance rendered invalid the process of the passage of the Bill and the subsequent assent to it by the Governor-General as law. He considered S.67 "must be interpreted in a manner which advances rather than impedes the principle that Parliament is the supreme law-making body in Solomon Islands as recognised by the Constitution (See section 59)". With respect, I think "must" is too strong a word, but I would agree with a proposition that where the circumstances allow it, the Court should favour an interpretation of S. 67 protecting the position of Parliament as the supreme law-making body. But regard must be had to its place in the Constitution, which is declared to be Supreme law (S.2); and to the fact that Parliament derives its law-making powers from that Constitution, and they are subject to its provisions (S.59). This Constitutional origin of the Solomon Islands' Parliament must always be borne in mind when considering English cases dealing with the privileges and powers of the United Kingdom Parliament at Westminster, which has very different origins.

His Lordship saw in Sections 68 and 71 some support for Mr Waleilia's submission that non-compliance with S.67 did not invalidate the passage of the Bill into law. The former states: "Subject to the provisions of the preceding section [S.67], Parliament shall not be disqualified from the transaction of business by reason of any vacancy in its membership..." The introductory words "Subject to ..." indicate that when there are vacancies, a quorum requirement is still applicable if the matter is raised under S.67; presumably it would constitute half the number of those eligible to be present as members. To the extent this provision recognizes that a full quorum is not necessary in those circumstances, it may be seen – perhaps rather faintly – as a pointer to the general proposition that non-compliance with the requirements of S.67 is not necessarily fatal.

Section 71(l) contains the provision already referred to, that questions are to be determined by a majority of the votes of members present and voting. They are free to abstain if they wish and need not be present. This provision has no direct bearing on quorums, although the Chief Justice suggested at p 12 of his judgment that it would be in order for Parliament to pass the Bill, "as it did in this case" even though less than half the members were present, so long as there was the requisite majority supporting it. However, the section is declared to be subject to the Constitution, which includes the provisions of S.67, indicating that the voting provisions must operate within the framework of the quorum requirements of that section when it applies. I think His Lordship was merely indicating that in general a Bill could be passed without a quorum being present, and I return to this point later.

His Lordship referred to passages from Erskine May's Parliamentary Practice and the observations by the House of Lords, in British Railways Board v Pickin [ [1974] UKHL 1; 1974] 1 All ER 609, to the effect that Parliament is master of its own procedure which cannot be subject to scrutiny by the Courts. As noted above, he was also of the opinion that the Court cannot go behind the official copy of what purports to be the Act. There was no challenge to the procedures followed after the passage of the Bill through Parliament, and it contains the Statements that it was passed by National Parliament on 21 December 1995, and was assented to by the Governor-General on 22 February 1996, concluding with the words of enactment prescribed by S. 59 (4) of the Constitution "Enacted by the National Parliament of Solomon Islands". He regarded them as conclusive evidence that the Act was authentic and duly passed, in the light of what was said in British Railways Board v Pickin to the effect that the function of the court was to consider and apply the enactments of Parliament, and it was not lawful to impugn the validity of a statute by seeking to establish that Parliament, in passing it, was misled by fraud or otherwise. This was the basis of the attack in that case, which was very, different from the present allegation of constitutional breach resulting in the Bill never having been validly passed by Parliament.

As I have already remarked, the situation is different where Parliaments derive their powers and procedures from constitutions to which they are subject and with which they may be in conflict. The Court's power to intervene in these circumstances, notwithstanding that the law has been enacted, was made abundantly clear by Barwick CJ and Menzies J in their judgments in Cormack v Cope (1974) 131 CLR 432. The former said at p 454 that there was no parliamentary privilege which can stand in the way of the High Court's right and duty to ensure that the constitutionally prodded methods of law-making are observed, and lie added that ordinarily the Court's interference to ensure this is effected by declaring void what purports to be an Act of Parliament after it has been passed by the Parliament and received the Royal assent. Menzies J said at p 464 that when the proposed law has been affirmed by the required majority and assented to, it is open to challenge in the courts.

The law-making process stipulated by S. 59(2) reads:

The laws referred to in this section shall take the form of Bills passed by Parliament, and when a Bill has been passed by Parliament it shall be presented to the Governor-General who shall assent to it forthwith on behalf of the Head of State, and when such assent is given the bill shall become law.

Was this law validly passed by Parliament at a time when it should have been adjourned, so that it could be properly presented to the Governor-General for his assent? This calls for consideration of matters relevant to whether the requirement on the speaker to adjourn was "mandatory" or merely "directory", in line with what has been said earlier in this judgment. The following passage from the majority judgment of the High Court at p 246 of Clayton v Heffron affords another helpful summary, applicable to powers conferred by a Constitution:

The principles of the common law distinguished sharply between invalid attempts to exercise a legislative power and departures from the prescribed course for its exercise which may not or do not bring invalidity as a necessary consequence. In the end the distinction must be governed by the intention expressed by the legislature conferring the power and prescribing the steps to be taken in the course of its exercise. But commonly no express declaration is to be found in the statutory power as to the effect on validity of departures from the procedure laid down. The question is then determined by reference to the nature of the power conferred, the consequences of its exercise, the character and purpose of the procedure prescribed.

As I have said at the outset of this judgment, apart from the side-note to s 67, there is no reference in the Constitution itself to a quorum, or any general requirement for a minimum number to be present in Parliament for the transaction of ordinary business. (Section 61 contains special provisions dealing with alterations to the Constitution). A provision somewhat analogous to s 67 can be found in s 36 (3) dealing with Cabinet meetings, in which it is stated that no business other than that of adjournment shall be transacted if a member objects that there are less than a majority present. Instead of the positive requirement that could be expected if the Constitution intended that there must always be a minimum number present for the transaction of business, the non-committal way in which S67 is framed indicates that unless and until a member objects, ordinary business can proceed with less than that number present. This approach to a quorum may well have been adopted to take account of the fact that members move in and out of the chamber, as remarked on by the Appellant in para 14 of his affidavit.

Section 67 was evidently modelled on the pre-1971 practice of the House of Commons, as is apparent from a study of the 18^th Edition of Erskine May's Parliamentary Practice. (That practice was later changed). The topic of quorums was dealt with there at pp 299-300, with the introductory statement that the House is presumed to be made at the beginning of the sitting. If notice is later taken that 40 members are not present and are not disclosed by a count taken after a specified interval, the House is adjourned to the next sitting day. In the light of this likely derivation, a similar presumption about the presence of the prescribed minimum number in the National Parliament can be spelt out from S 67, which can be rebutted if a member objects. If it is then ascertained that there is less than the minimum present, there must be an adjournment, the purpose of which can only be to ensure that no further business is conducted during that period.

It seems clear that the Constitution has given this special power to individual members as means of control to ensure the presence of the minimum number thought appropriate for the proper transaction of Parliamentary business, even though it might otherwise have been permissible to conduct it with less than that number present. Accordingly, the requirement that the Speaker adjourn Parliament can be seen as an important safeguard of the system of representative democracy which the Constitution is designed to achieve, leading to the conclusion that the requirement is "mandatory", in the sense that "non-compliance results in invalidity, so that the Bill could not be validly passed during the period that Parliament should have been adjourned.

A factor regarded as relevant in some of the reported cases is the inconvenience which a finding of invalidity would work on the public. But when there has been a clear breach of an important Constitutional requirement, as I think was the case here, it is the duty of the Court to uphold the integrity of the law-making process, even at the expense of public inconvenience. Otherwise it would be virtually impossible to obtain a declaration of invalidity of a contravening statute, because some inconvenience to the public can always be expected in that event.

Although the Chief Justice accepted there had been a breach of S.67 in relation to the following matters, he thought it would not be a proper exercise of discretion to grant the relief sought in paras 1 and 2 of the Originating Summons, namely:

1. A declaration that the sittings of the National Parliament on 21^st day of December 1995 lacked a quorum.

2. A declaration that the Second Defendant acted unconstitutionally when he refused to adjourn Parliament following objection by the Plaintiff that there was no quorum.

I do not think the Court could make a declaration that the sitting on 2lst December lacked a quorum (using that word in the S 67 sense as meaning the presence of half the members), because the only evidence about numbers was contained in the affidavits of the Appellant and of the Speaker. Both of them confirmed that there was no quorum present in the chamber at the time the objection was raised and for the rest of the day, while the Bill in question was debated and passed. However, before the Appellant's objection, the Minister had moved the second reading of the Bill and had spoken to it, and we do not know how many members were present then. Furthermore, I do not see what relevance a declaration about the existence of a quorum during the rest of the day has to the central question in this case - namely, whether there was one at the time the Speaker had to ascertain the number present pursuant to S 67.

More fundamentally, I consider it inappropriate for the Court to make the declaration sought in para 1 of the Summons because a determination under S67 about whether the necessary number of members are present is left to the Speaker to make, as part of Parliament's internal procedure. The Constitution has nothing to say about how this should be done, and there is no suggestion of any conflict with it in the way the Speaker dealt with this aspect. As the Western Samoa Court of Appeal (Lord Cooke, Sir Gordon Bisson and Sheppard J) said in Ah Chong v The Legislative Assembly and Ors (C.A. 2/96; 17.9.96):

It is recognized that the respective constitutional roles of the Courts and Parliament normally require the Courts to refrain from intervening in Parliamentary proceedings. Conflicts between the judicial and legislative organs of the State are to be avoided as far as possible. Generally speaking, a body such as the Legislative Assembly of Western Samoa is left free to regulate and determine its own internal procedure from time to time.

The Court added that this principle is accepted in all comparable jurisdictions, citing Australian, New Zealand and other South Pacific cases in support, and I am satisfied that it also applies to the National Parliament. For these reasons I consider that it would not be appropriate to make the declaration sought in para 1 of the Summons and repeated as para (a) in the Notice of Appeal.

The position is different with the declaration sought in para 2 (amended para (b)), that the Speaker acted unconstitutionally when he refused to adjourn Parliament. Here the Court does have jurisdiction under S. 83 and a breach was clearly established; indeed, no counsel argued otherwise in this Court. In exercising his discretion against making the declaration, the Chief Justice appears to have been influenced by a reluctance to usurp the supremacy of Parliament or to interfere with its proceedings, in the desire to reduce any conflict between it and the Courts. With respect I do not think these considerations are of any real significance in the present situation where the Court has been properly asked to rule on the constitutionality of the Speaker's action. It is in the interests of Parliament itself to have the Court's guidance in the form of a declaration, and I do not see it as the source of any conflict between the two institutions. While an Appellate Court is always reluctant to interfere with the exercise of a Judicial discretions, nevertheless in this case I think the Chief Justice should have made the declaration sought in para 2.

Notwithstanding his conclusion that the Bill was validly passed, His Lordship thought it was not within the competence of the Court to make the declaration of invalidity sought in para 3 of the Summons (amended paras (c) and (d)). He regarded the action as one effectively brought against the Crown, and in view of the Attorney-General's involvement as a Respondent, this must be so. Although the Speaker was joined in his personal capacity, I agree that he effectively represents Parliament. Section 83 deals with the High Court's jurisdiction in Constitutional matters, and under subsection (1) a person whose interests are affected may apply to that Court for a declaration and for relief. The Court has jurisdiction under subsection (2) to determine whether any provision of the Constitution (other than Chapter II – not relevant here) has been contravened and to make a declaration accordingly. Where the Court makes a declaration and the party seeks relief, the Court may grant that person such remedy as is available against any person in any proceedings in the High Court as it thinks appropriate.

His Lordship treated the declaration sought in para 3 (that the Act was unconstitutional and void) as a prayer for relief which would be consequential upon a declarations under para 2 that the Speaker had contravened the Constitution. He then asked whether that relief by way of declaration would be available against the Crown, and referred to relevant provisions of the Crown Proceedings Act (Cap 7). holding that under S.18 (1) (a) thereof the Court could make a declaration as to the rights of the parties only, so that it could not be regarded as a remedy "available" (per S.83(3) of the Constitution) in proceedings against the Crown. With respect, I think he misinterpreted subsection (1) (a), which qualifies the general jurisdiction of the Court under S.18(1) to make all such orders against the Crown as it has power to make between subjects. That subsection stipulates that it shall not grant an injunction or order specific performance against the Crown, but in lieu may make an order declaratory, of the rights of the parties. As there was no question of an injunction or decree being sought in this case, the High Court was entitled to exercise its ordinary jurisdiction and make the declaration sought under para 3, and for the reasons given earlier in this judgment I am satisfied that such a declaration should have been made.

In the result, I would partially allow the appeal by making declarations in terms of those set out in paras 2 and 3 of the Judgment of McPherson J.A., but I am not persuaded that the declaration sought in para 1 of the Summons about the existence of a quorum should be made, and would refute it. I agree with the award of costs proposed by the other members of the Court.