Prime Minister v Governor General [1999] SBCA 6; CAC No 14 of 1998 (1 September 1999)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

NATURE OF JURISDICTION:
An appeal from judgement of the
High Court of Solomon Islands (Muria CJ)

Civil Appeal Case No. 14 of 1998
(High Court Civil Case No. 150 of 1998)

BETWEEN

THE PRIME MINISTER
(Appellant)

AND

THE GOVERNOR-GENERAL
(Respondent)

THE COURT
Mason P
McPherson JA,
Williams JA

ADVOCATES
For Appellant: Mr P. Afeau
For Respondent: Mr A. Nori, MR. C. HAPA

Date and Place of Hearing: 23^rd October 1998 at Honiara
Date of Delivery of Judgment: 1^st September 1999

KEY WORDS Constitutional law – power of Governor General to convene meeting of Parliament to consider motion of no confidence in Prime Minister – whether authorised by Constitution of Solomon Islands, s. 72, or impliedly or as an exercise of reserve power – power of Court of Appeal to reconsider a prior decision of the Court – whether Hilly v Pitakaka (CC 299/94CA, 22 October 1994) was correctly decided – whether declaratory relief should be refused and appeal struck out on ground that the question was rendered moot by the convening of a fresh meeting at which the motion of no confidence was dismissed – interpretation of Constitution ss. 16, 27, 31(1), 34(1), 71(1), 72, 83, 103 – Parliamentary Standing Order 7

JUDGMENT

MASON P: This is an appeal by the Prime Minister against the determination by Muria CJ of certain questions stated in an originating summons filed by the Prime Minister against His Excellency the Governor-General of the Solomon Islands.

The questions and determination and the determination by Muria CJ

The questions stated and the relief sought in the amended originating summons were as follows:

1. Whether or not in the circumstances that prevailed or obtained on 1 September 1998, it was lawful for the Governor-General by proclamation to convene a special meeting of Parliament on 8 September 1998 contrary to the advice of the Prime Minister for the sole purpose of debating a motion of no-confidence in the Prime Minister.

2. Whether or not in the circumstances that prevailed or obtained on 1 September 1998, it was lawful for the Governor-General to convene a special meeting of Parliament on 8 September 1998 in total disregard of the Parliament Standing Orders.

3. Whether or not it was lawful for the Governor-General to alter the decision of his office made by the Acting Governor-General on 11 August 1998 not to have a special meeting of Parliament, as a Parliament meeting has already been set for 12 October 1998.

4. If the answer to all or any of the above questions is in the negative the Court to make the following consequential orders:

(a) Any meeting of Parliament held pursuant to the said Proclamation is null and void;

(b) Any actions, proceedings or decisions taken pursuant to the said Proclamation or taken at any such meeting is null and void;

(c) Any expenditure or costs incurred on, for or in respect of such a meeting is unauthorised and unlawful.

The Chief Justice answered the questions as follows:

Question 1: Yes

Question 2: Yes

Question 3: Yes.

In the light of the answers given, there was no occasion to make consequential orders except that there was an order that any expenses incurred in instructing counsel to represent the Acting Governor-General were to be paid out of the public fund.

The circumstances giving rise to the proceedings

The judgment of the Chief Justice sets out the circumstances in which the proceedings arose. The account which follows is taken from that judgment. Following the general election in August 1997, the Hon. Bart Ulufa'alu MP was elected Prime Minister on 27 August 1997. Almost a year later six members of the SIAC Government (three Ministers and three backbenchers) were understood to have defected to the Opposition. The Prime Minister advised that parliament was to meet on 12 October 1998 to consider the 1999 Budget and several Government Bills. The Clerk of Parliament advised all members of Parliament of the proposed meeting of Parliament on 12 October 1998.

On 7 August 1998 the Opposition wrote to the Acting Governor-General advising him that the Government did not have majority support in the House and urging His Excellency to convene an urgent meeting of Parliament so that a motion of no-confidence could be moved against the Prime Minister. The Acting Governor-General advised the Prime Minister of the Opposition's letter and thereafter wrote to the Opposition on 11 August 1998 stating that the Parliament would still meet on 12 October 1998. The Opposition responded by requesting the Acting Governor-General to re-consider his decision and to convene Parliament at an earlier date.

The Governor-General, who had been overseas, resumed the duties of his office on 15 August 1998. The Prime Minister then consulted with His Excellency on two occasions. In his affidavit in the proceedings, the Prime Minister stated that on the two occasions he

"tendered advice to the Governor-General as required as follows:

(1) The Prime Minister was not required by the Constitution to submit a list of his supporters to the Governor-General. That would be determined on the floor of Parliament.

(2) Parliament was set to meet on 12 October 1998 and there was no justification for an urgent special meeting.

(3) There were no funds for such special meeting of Parliament.

(4) The Acting Governor-General had decided to have Parliament meeting on 12 October and he himself had confirmed it and there was no reason or justification to alter the decision.

(5) A decision to call a special meeting of Parliament just for a motion of no-confidence in the Prime Minister in these circumstances will set a bad precedent for political instability in this country.

(6) Must take into account the national interest and that political stability at this time was crucial now that the Government was beginning to put things right by selling some of the country's huge debts, as well as undertaking the Structural Reform Programme Exercise. Maintaining the confidence of our development partners was critical.

(7) The Government continued to perform its duties and was not doing anything unlawful."

On 1 September 1998, at the invitation of His Excellency, the Prime Minister attended at Government House. After some discussion about the political situation, His Excellency handed to the Prime Minister a letter dated 31 August 1998 in which His Excellency stated that he had decided to convene a meeting of parliament 8 September 1998 for reasons stated in that letter.

By proclamation dated 1 September 1998, His Excellency, purporting to act under s. 72(1) of the Solomon Islands Constitution, appointed 8 September 1998 at 9.30am as the date and time upon which a special meeting of Parliament should be held at National Parliament House

"to consider and debate the motion of no confidence in the Prime Minister notice thereof having already been given to the Speaker of the Parliament".

The proceedings

The proceedings were commenced by originating summons on 4 September 1998. On 10 September 1998 Muria CJ delivered his judgement affirming the right of the Governor-General to convene the special meeting of Parliament and upholding the validity of the proclamation.

By reason of the proceedings and an order made by the High Court, the debate on the motion of no-confidence did not take place on 8 September. Muria CJ in his judgment said:

"The Speaker of the National Parliament would now have to fix a new date so that Parliament can resume and have the motion debated in the House which is the place where the people of this nation through their constitution intend the present dispute to be resolved."

A little earlier in the judgment, the Chief Justice had stated that the situation

"must be resolved a soon as possible".

On 11 September 1998, the Speaker convened Parliament to on meet 25 September 1998 to consider the no-confidence motion. Proceedings challenging the validity of the Speaker's decision to convene on 25 September resulted in the dismissal of the proceedings on 16 September 1998 by Lungole-Awich J.

On 17 September 1998, His Excellency issued a fresh proclamation under s. 72(l) of the Constitution convening a special meeting of Parliament on 18 September to consider the no-confidence motion. The meeting was held and the no-confidence motion was defeated.

The motion to strike out the appeal

By notice of motion dated 16 October 1998, filed on 19 October 1998, the Governor-General sought orders striking out the appeal and that the appeal be dismissed on the ground that the matter sought to be determined in the appeal, namely the declaratory relief sought, was rendered moot by the meeting of Parliament on 18 September 1998 and the defeat of the no-confidence motion. The application is resisted by the Prime Minister.

The availability of declaratory relief is largely influenced by the limits of the judicial power (see Bass v Permanent Trustee (1999) 161 CLR 399 at 413-418). The judicial power is the power of every sovereign to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property: Huddart Parker & Co. Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 at 357. The power naturally extends to the decision of a controversy between high officials of the State when the subject matter of their dispute relates to the existence or the exercise of a power claimed to be conferred by the Constitution.

Notwithstanding that the traditional definition of judicial power stated above is expressed in terms of the resolution of controversies, it has been accepted that the resolution of a controversy interpartes is not an essential element in the exercise of judicial power: R v Davison [1954] HCA 46; (1954) 90 CLR 353 at 380-381. Orders relating to the maintenance and guardianship of infants, consent to marriage of award of court, orders for letters of administration and judicial advice to a trustee are instances of the exercise of judicial power, these powers having been traditionally exercised by court. Apart from cases such as these, it has been accepted that judicial power involves a determination of actual disputes about rights and obligations: In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 394.

Insistence on confining the exercise of judicial power to the determination of actual disputes about rights and obligations has led to the conclusion that abstract, academic or hypothetical controversies cannot sustain an exercise of judicial power, at least in the absence of constitutional authority to deal with them: In re Judiciary and Navigation Acts (supra); Luna Park Ltd v Commonwealth [1923] HCA 49; (1923) 32 CLR 596 at 600; Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia [1925] HCA 27; (1925) 36 CLR 442 at 451; University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10; Bass v Permanent Trustee Co [1999] HCA 9; (1999) 161 ALR 399 at 413-415. One instance of an academic or hypothetical question which does not sustain the exercise of judicial power, an instance said to represent the present case, is a case where the actual controversy between the parties has been resolved by judicial decision or otherwise but one party seeks to secure an answer to a legal question which constituted an element in that controversy. Resolution of the controversy renders the question moot and precludes the exercise of judicial power in relation to it.

It would, however, be a mistake to treat that instance as having a universal rather than a general application, for to give it a universal application would unnecessarily restrict the exercise of judicial power. The scope of that power in modern times is to be ascertained by reference to the development of the power to grant declaratory relief that the Prime Minister seeks in these proceedings.

In Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, the joint judgment stated (at 582):

"The person seeking relief must have 'a real interest' (Forster v Jododex Aust Pty Ltd ((1972) [1972] HCA 61; 127 CLR 421 at 437; Russian Commercial and Industrial Bank v British Bank of Foreign Trade Ltd [1921] 2 AC 438 at 448) and relief will not be granted if the question 'is purely hypothetical', if the relief is `claimed in relation to circumstances that [have] not occurred and might never happen' (University of New South Wales v Moorhouse (supra) or if `the Court's declaration will produce no foreseeable consequences for the parties' (Gardner v Dairy Industry Authority (N S W) ((1977) 52 ALJ R 180 at 188)."

In Ainsworth, Brennan J referred (at 596) to the observations of the Privy Council in lbeneweka v Egbuna [1964] 1 WLR 219 and those of Viscount Dunedin in Russian Commercial and Industrial Bank (supra). In lbeneweka, the Privy Council remarked (at 225):

"... the power to grant a declaration should be exercised with a proper sense of responsibility and a full realization that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration."

And in Russian Commercial and Industrial Bank, Viscount Dunedin said (at 448):

"The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought."

The requirement that the person seeking a declaration must have a real interest to raise the question is reflected in the provisions of s. 83(l) of the Constitution. Section 83(2) confers jurisdiction on the High Court to determine whether any provision of the Constitution (other than Ch. 11) has been contravened and to make a declaration accordingly. But the proviso requires that a declaration shall not be made unless the Court:

"is satisfied that the interests of the person by whom the application is made

... are being or are likely to be affected".

The last two criteria enunciated by Viscount Dunedin in Russian Commercial and Industrial Bank are satisfied in the present case. The Prime Minister has a real interest in raising the question because the exercise by the Governor-General of the power to convene a meeting of Parliament to consider a motion of no-confidence in the Prime Minister exposes the holder of that office to loss of office and government in circumstances which would not otherwise take place, at least on the date on which the meeting is convened by the Governor-General. The making of the two proclamations in 1998 were not isolated instances of the exercise of the power. There was an earlier exercise of the power to which I shall refer. Moreover, in the light of the decision of the Chief Justice upholding the validity of the first proclamation on 1 September, following the earlier decision of this Court in Hilly v Pitakaka (CC 299/94 CA, 22 October 1994), there is the distinct possibility that the power may be exercised in the future against a Prime Minister, whether it be the present or a future holder of that office. The interests of the Prime Minister are therefore likely to be affected within the meaning of the proviso to s. 83(2) unless a declaration of the kind sought is made.

The last criterion is satisfied by the joinder of the Governor-General as defendant. As the person who claimed to have the power and who exercised it, His Excellency is the appropriate contradictor. In that capacity he advanced arguments through his counsel.

It is the first criterion that presents the problem. Is the question real or theoretical? The question does not immediately arise in the sense that there is no exercise of the power which is presently operative and no threat on the part of His Excellency to exercise the power again. There is no meeting of Parliament convened by the Governor-General presently in prospect which would expose the Prime Minister to the possibility of loss of office and government. Indeed, the proclamation, the validity of which was determined by Muria CJ, was superseded by the later proclamation. It follows that there is no actual controversy on foot about existing rights and obligations arising from a purported exercise of the power which requires determination (see In re Judiciary and Navigation Acts at 265).

In ordinary circumstances that proposition would result in the conclusion that the dispute is academic or theoretical rather than real. See the decisions of the House of Lords in Sun Life Assurance Co. of Canada v Jervis [1944] 1 All ER 469 at 470-471 and Ainsbury v Millington [1987] 1 All ER 929 at 930-931. However, those decisions enunciate common law principles applicable to private law cases not constitutional cases (but cf. Tindall v Wright (1992) 38 TLR 521). Here, as I have already pointed out, the dispute is about the existence of a power said to b e conferred by the Constitution on His Excellency and it is a power which, if validly exercised, has the consequences for the Prime Minister and government which have already been mentioned. The answers to the questions have important consequences for the working of Parliament and upon the relationship between the Governor-General on the one hand and the Parliament and the executive government respectively.

If, as has been held by the Chief Justice, the power exists, the possibility that it may be invoked and exercised will have a significance for the political process and for political stability or instability. If the power be held not to exist, the knowledge that it does not exist will have a different significance for the political process and for political stability or instability. It is undesirable that the answer to the question should remain in doubt when there is an opportunity to resolve it. The decision in Hilly v Pitakaka (supra) has been the subject of criticism so that the decision cannot be regarded as necessarily determining the question authoritatively.

The questions, for reasons already given, are important constitutional questions affecting the working of Parliament and the political process and questions which may well arise again. There is, in my view, a powerful case for saying that this Court has a responsibility to decide such questions when the answers to them may resolve constitutional and political uncertainty, at any rate when the questions are continuing questions as these questions are, for they may well arise in the future and they can be conveniently and appropriately resolved in proceedings between the parties having a real interest in the subject of the dispute and in presenting the conflicting arguments on facts as found or agreed. Moreover, the questions are not abstract; they can be determined in the light of the facts as I have stated them with the result that a declaration in this case will be binding on the parties.

The traditional statements made in private law cases to which I have referred do not have an unqualified application to constitutional questions of the kind that arise here. A constitutional court, and this Court is effectively the constitutional court of the Solomon Islands, has a responsibility to respond to constitutional questions if it can conveniently and appropriately do so. The circumstances of this case therefore call for the granting of declaratory relief. And the case for granting that relief is even stronger should it transpire that the Court's judgment differs from that of the Chief Justice. It would not be right for the Governor-General to exercise the power in question in the future, in reliance on the Chief Justice's judgment, if it does not rest on a true interpretation of the Constitution.

For the foregoing reasons I would dismiss the respondent's motion to strikeout and for dismissal of the appeal.

The appeal

(a) The judgment of Muria CJ

In his judgment, the Chief Justice considered that the Governor-General, in convening the special meeting of Parliament on 8 September 1998, was relying not on any reserve powers, but on s. 72(1) of the Constitution. That sub-section provides that each session of Parliament shall be held at such place and shall commence at such times "as the Governor-General may appoint by proclamation published in the Gazette". The Chief Justice went on to hold that

"when the normal machinery provided by the Constitution becomes unworkable or impracticable, the Governor-General is entitled to exercise the powers under section 72(1) without the advice of the Prime Minister".

In reaching this conclusion, the Chief Justice was of the view that s. 31(1) of the Constitution contemplated such a situation. That sub-section, after providing that

"the Governor-General shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of Cabinet ..."

goes on to say that the Governor-General, in cases where he is required by the
Constitution so to do, shall act

"in his own deliberate judgment".

The Chief Justice was strongly influenced by the decision of this Court and the reasoning in the joint judgment in Hilly v Pitakaka (supra). In that case, the then Prime Minister, who had been elected by a majority of 24 votes to 23, suffered a loss of parliamentary support to the extent that his supporters numbered no more than 19, the defectors having joined the Opposition. The loss of support may well have been associated with the fact that the Government had been borrowing money without the authority of Parliament in excess of the sum authorised by the Appropriation Act 1993. The excess borrowing was in breach of s. 105 of the Constitution. The Prime Minister admitted to the Governor-General that he had lost support and that he had deliberately delayed the convening of Parliament because he was uncertain that he had the numbers to pass legislation or to resist a motion of no-confidence. He conceded that he had two options, to delay a sitting of Parliament indefinitely or to resign. The Governor-General dismissed him and convened a meeting of Parliament to elect a Prime Minister. The Court of Appeal held that the Governor-General had power to convene a meeting of Parliament so that it could consider a motion of no-confidence in the Prime Minister.

The Chief Justice acknowledged that there were some differences between Hilly v Pitakaka and this case. His Lordship nevertheless considered that they did not constitute a reason for distinguishing that decision. It was authority for the proposition that the Governor-General has power under s. 72(1) without, even against, the advice of the Prime Minister, to convene a meeting of Parliament. The situation, in the view of his Lordship, in the present case, was no less serious than in Hilly v Pitakaka, there being an intimation from the Opposition that it would not support the Budget.

(b) The arguments of the parties

The Attorney-General, for the Prime Minister, submits that the appeal should succeed on the following principal grounds:

(1) that Hilly v Pitakaka was wrongly decided;

(2) that his Lordship erred in following Hilly v Pitakaka which was, in any event, distinguishable;

(3) that his Lordship erred in extending Hilly v Pitakaka beyond the circumstances to which it related;

(4) that his Lordship misconstrued sections 31 and 72 of the Constitution.

Mr Nori for His Excellency seeks to support the judgment for the reasons advanced by the Chief Justice. He submits that the Court should not depart from its decision in Hilly v Pitakaka. Further, he submits that the proclamation can b e supported as an exercise of reserve power.

(c) The effect of Hilly v Pitakaka

It is necessary, first, to ascertain the effect of Hilly v Pitakaka. The question asked of
the Court of Appeal in that case was:

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

The answer given by the Court was:

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

Those circumstances included the following matters, not all of which are present in the case now before the Court:

(i) the Prime Minister acknowledged to the Governor-General that he lacked majority support in Parliament;

(ii) the Prime Minister refused to advise the convening of Parliament in the hope that in the meantime his support would grow;

(iii) a period of ten months had elapsed since the previous meeting of Parliament and there was no certainty when he would advise the calling of the next meeting; and

(iv) the excess appropriations had resulted in a breach of s. 105 of the Constitution and there was the problem of ensuring an appropriation for 1995.

In the present case, the absence of factors (i), (iii) and (iv) above provides an adequate basis for distinguishing Hilly v Pitakaka.

But, to distinguish that decision would leave unresolved the question whether the Court was right in holding that s. 72(l) conferred power on the Governor-General to direct the Speaker to convene a meeting of Parliament. The question therefore arises whether the Court should reconsider its earlier decision.

Courts of ultimate appeal generally proceed on the footing that they are not bound by their earlier decisions. In 1966, the House of Lords asserted its intention to depart from its previous decisions if it held them to be erroneous (Practice Direction [1966] 1 WLR 1234). The Privy Council is not bound by its previous decisions (Nkambule v King [1950] A C 379); neither is the Supreme Court of Canada (Ministry of Indian Affairs v Ranville (1982) 2 SCR 518); nor the High Court of Australia (John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417); nor the Supreme Court of India (Dwarkadas Shrinivas v Sholapur Spinning & Weaving Co Ltd (1954) AIRSC 119). Just as there me strong reasons why a constitutional court, such as the Supreme Court of the United States, does not regard itself as bound by its previous decisions, a court of ultimate appeal, in a constitutional case, should be at liberty to reconsider its previous decisions. In my view, this Court, as a court of ultimate appeal, is entitled to reconsider Hilly v Pitakaka, if it concludes that it was erroneously decided.

In expressing this view, I would not wish it to be thought that the Court is under a duty on every occasion on which a party seeks to challenge a previous decision of the Court, to hear lengthy argument in support of that contention. There will be cases in which, after the presentation of an outline of the proposed grounds of challenge, the Court is able to conclude that there is no sufficient case for reconsideration. This is not such a case. The Court has had the advantage of comprehensive arguments on the question whether Hilly v Pitakaka was correctly decided.

(d) Constitutional interpretation

Before I examine the reasoning in Hilly v Pitakaka, it is convenient to state the guiding principle of constitutional interpretation. That principle is that the courts should adopt a purposive interpretation of a constitution (Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319 at 328, per Lord Wilberforce). A constitution is necessarily expressed in general terms and the Constitution of the Solomon Islands is no exception. To the extent to which the provisions of the Constitution, as a result of the generality of those provisions, fail to deal specifically with a particular question, it is the task of this Court to determine the constitutional meaning by reference to the language of the Constitution, considered in the light of the relevant context and the objects of the Constitution itself.

In conformity with that approach to interpretation, I turn to the nature and objects of the Constitution before dealing with the particular provisions which concern the question which now arises.

(e) The nature and the objects of the Constitution

The Constitution provides for a system of democratic government and incorporates guarantees of fundamental rights and freedoms and a separation of powers. The Constitution adopts the Westminster model of parliamentary government and provides for a system of both responsible and representative government. The preamble to the Constitution includes a declaration 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."

The preamble also recites an agreement and pledge that:

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

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

The declaration and the recitals reinforce the principles of responsible and representative government for which the Constitution provides. Section 1 of the Constitution, in conformity with the recitals, affirms the establishment of "the sovereign democratic State of Solomon Islands".

(f) Modifications of the Westminster model conventions

Although the Constitution adopts the Westminster model, a number of modifications are made to that model. The modifications which are relevant to the question under consideration are modifications relating to the constitutional conventions. First, the Constitution codifies the conventions but, in some respects, modifies them. No doubt the decision to codify was taken because, the Solomon Islands having formerly been a British protectorate, there was no previous experience of the conventions before independence. In any event, it may well have been considered desirable to ensure that the Constitution was as explicit as possible, thereby avoiding the necessity of ascertaining what were the conventions by reference to practice in the United Kingdom and other relevant jurisdictions. It is not without significance that the Constitution was adopted after the Australian constitutional experience in November 1975 when Sir John Kerr, the Australian Governor-General, dismissed Mr E.G. Whitlam, the Prime Minister, in circumstances which generated much controversy about the conventions and the reserve powers of the Crown.

The first modification of the conventions relates to the appointment and dismissal of the Governor-General. The Governor-General is appointed by the Head of State in accordance with an address by Parliament, not on the advice of the Prime Minister (see Constitution, s. 27(l)). The Head of State's power to dismiss the Governor General is qualified by the requirement that it be in accordance with an address by Parliament supported by the votes of at least two thirds of all the members of Parliament for misbehaviour or such other cause as may be prescribed by Parliament (s. 27(3)(b)). This requirement replaces dismissal by the Head of State on the advice of the Prime Minister.

The second modification relates to the appointment and dismissal of the Prime Minister. As in Papua New Guinea, the Constitution provides that the Prime Minister is to be elected by the members of Parliament from amongst their number (s. 33(l)). The absence of a developed political party system in the Solomon Islands meant that the Governor-General would have no means of knowing whether a particular candidate for the office of Prime Minister enjoyed the requisite parliamentary support. The procedure governing the election of the Prime Minister is governed by the provisions of Sch, 2 to the Constitution.

Corresponding with parliamentary election of the Prime Minister is the constitutional
provision for his dismissal. Section 34(l) provides:

"(1) If a resolution of no confidence in the Prime Minister is passed by Parliament by an absolute majority of the votes of members thereof the Governor-General shall remove the Prime Minister from office ..."

This provision displaces the convention according to which a Governor-General could dismiss a Prime Minister who had lost the confidence of Parliament. Again, in the absence of a developed party system, it was considered that the Governor-General could not rely on a Prime Minister's loss of support within his own party as evidence of his loss of the support of Parliament.

The third modification relates to the Governor-General's power to prorogue and dissolve Parliament. Section 73, which is the sole provision in the Constitution dealing with this matter, provides in so far as is material:

"(1) If at any time Parliament decides by resolution supported by the votes of an absolute majority of the members of Parliament that Parliament should be prorogued or dissolved, the Governor-General shall forthwith prorogue or, as the case may be, dissolve Parliament by proclamation published in the Gazette.

(2)...

(3) Parliament, unless sooner dissolved under sub-section (1) of this section, shall, continue for four years from the date of the first sitting of Parliament after any general election and shall then stand dissolved."

The three modifications have the effect of reducing and limiting what would
have been the discretionary powers of the Governor-General under the Westminster model. Quite apart from the effect of these modifications, Ch. V of the Constitution, under the heading of "The executive", further circumscribes the powers of the Governor-General.

(g) Other constitutional provisions relating to the functions and powers of the Governor-General!

The executive authority of the people of the Solomon Islands is vested in the Head of State (s. 30(1)). Save as otherwise provided in the Constitution, the executive authority may be exercised on behalf of the Head of State by the Governor-General either directly or through officers subordinate to him (s. 30(2)). Section 31 deals with the exercise of the Governor-General's functions. The section provides:

"(1) In the exercise of his functions under this Constitution or any other law, the Governor-General shall act in accordance with the advice of Cabinet or of a Minister acting under the general authority of Cabinet except in cases where he is required by this Constitution to act in accordance with the advice of, or after consultation with, any person or authority other than the Cabinet or in his own deliberate judgment.

(2) Where the Governor-General is required by this Constitution to exercise any function after consultation with any person or authority other than the Cabinet, he shall not be obliged to exercise that function in accordance with the advice of that person or authority.

(3) Where the Governor-General is required by this Constitution to act in accordance with the advice of, or after consultation with, any person or authority, the question whether he has in any matter so acted shall not be called in question in any court of law."

The Constitution contains a series of miscellaneous provisions which, in a variety of situations, provide that particular functions and powers of the Governor-General shall be exercised "in his own deliberate judgment". The functions and powers so exercisable by the Governor-General are set out in detail and they are extremely limited powers:

(1) under s. 38(2), he may authorise a Minister to act on behalf of the Prime Minister (where he is unable, by reason of illness or absence to perform his functions), if it is impracticable to obtain the advice of the Prime Minister;

(2) under s. 45(2)(a), the Governor-General's appointment of the members of the Committee on the Prerogative of Mercy and his revocation under s. 45(4)(b) of such an appointment;

(3) under s. 80(8), the appointment of a tribunal to consider the removal of a judge of the High Court (but not the decision whether the conduct of the judge should be referred to a tribunal);

(4) under s. 87(8), the appointment of a tribunal to consider the removal of a judge of the Court of Appeal (but not the decision whether the conduct of the judge should be referred to a tribunal);

(5) under s. 115(2), deciding whether a society or an association "is of a political nature", for the purposes of the disqualification for appointment as a member of the Public Service Commission of an officer of such a society or association;

(6) under s. 116(4), in giving his concurrence to an exercise of powers by the Public Service Commission in relation to any office or officer on the personal staff of the Governor-General;

(7) under s. 116A(4)(c), in deciding the question mentioned in (5) above, for the purpose of ascertaining whether the office of a member of the Teaching Service Commission becomes vacant when he is an officer of such a society or association.

(8) under s. 129(7), the exercise of powers in relation to the tenure of office of the Commissioner of Police;

(9) under s. 132(2)(a), the exercise of power to grant any award under any pensions law, and to withhold, reduce in amount or suspend any such award in the case of a public officer who was a judge of the High Court or the Court of Appeal or Commissioner of Police; and

(10) under Sch. 2, paragraph 11, in exercising his powers in connection with the election of a Prime Minister.

None of these provisions touches the question which arises for determination in this case.

The existence, however, of these detailed provisions concerning the very limited functions and powers where the Governor-General is to "act in his own deliberate judgment", along with the many specific provisions providing for particular functions and powers of the Governor-General to be exercised with the advice of the Cabinet or a Minister, or another person or authority, is extremely significant. They strongly support the view that the Constitution constitutes an exclusive and exhaustive code in so far as it deals with the question whether the functions and powers of the Governor-General are to be exercised with advice or in his own deliberate judgment. The detailed prescription in the Constitution of this aspect of the exercise of the Governor-General's functions and powers is consistent only with an intention to confine those functions and powers to those conferred expressly by the Constitution. In its detailed treatment of the functions and powers of the Governor-General, the Constitution of Solomon Islands presents a striking contrast with the Constitutions of Australia and Canada.

(h) Section 72

Section 72, which is the critical provision, provides:

"(1) Subject to the provisions of this section, each session of Parliament shall be held at such place within the Solomon Islands and shall commence at such time as the Governor-General may appoint by proclamation published in the Gazette.

(2) Sessions of Parliament shall be held so that a period of twelve months does not intervene between the end of one session and the first sitting of Parliament in the next session."

This is the only provision in the Constitution which confers power on the Governor - General to convene a session, sitting or meeting of Parliament, apart from Sch. 2 which requires the Governor-General to convene a meeting of members of Parliament for the purpose of electing a Prime Minister.

Section 144 defines, unless the context otherwise requires, the terms "session", "sitting" and "meeting". "Session" is defined to mean

"the sittings of Parliament commencing when Parliament first meets after its prorogation or dissolution at any time and ending when parliament is prorogued or dissolved without having been prorogued".

"'Sitting' means, in relation to Parliament, a period during which Parliament sits without adjournment and includes any period during which Parliament is in committee."

"`Meeting' in relation to Parliament means any sittings of Parliament commencing when Parliament first meets after being summoned at any time and terminating when Parliament is adjourned sine die or at the conclusion of a session."

The Constitution, accordingly, draws a distinction between the three terms.

The term "meeting" does not appear in s. 72 or in the definitions of "session" or "sitting". The definition is, however, important in the context of Sch. 2 which provides for the convening of a meeting of members of Parliament for the purpose of electing a Prime Minister. The definition also has significance for Standing Order 7 which deals with the commencement of sessions and meetings.

For present purposes the significance of these provisions is that the Constitution does no more than confer power on the Governor-General to proclaim a time and place for the commencement of a session under s. 72 and convene a meeting under Sch. 2 for the purpose of electing a Prime Minister. Section 72(1) confers power to appoint a time and place for the holding of a "session" of Parliament; it does not purport to confer power to convene a "meeting" of Parliament to consider a particular motion. Yet that is the purpose for which the Governor-General sought to exercise the power. The Constitution contains no provision which authorises the Governor-General to convene a meeting (whether for a particular purpose or not) while Parliament in session, apart from Sch. 2.

What is more, the exercise of the power to convene a session under s. 72 is subject to s. 31(l) which requires that the Governor-General shall act in accordance with the advice of the Cabinet, there being no provision requiring or authorising the Governor-General to act in his own deliberate judgment when convening a session of Parliament under s. 72(1). No doubt advice tendered by the Prime Minister is to be taken as being tendered with the general authority of Cabinet.

If follows that, if the Governor-General has power under the Constitution to convene, in his own deliberate judgment, a meeting of Parliament for the purpose (of considering a motion of no confidence in the Prime Minister, that must be power implied.

(1) Is a power to convene a meeting of Parliament to consider a vote of no confidence in the Prime Minister to be implied?

The existence of such a power in the Governor-General might be supported on one of two bases: first, that it exists as a matter of implication from the express provisions and general nature and objects of the Constitution (the approach taken by Connolly P and Los JA (with which Williams JA agreed) in Hilly v Pitakaka); or, secondly, that such a power forms part of the reserve powers of the Governor - General (the additional ground taken by Williams JA in Hilly v Pitakaka).

It is convenient to deal, first, with the argument based on implication because it was that argument that led Connolly P and Los JA to the conclusion that s. 72(1) authorised the Governor-General to convene a meeting for the purpose of Considering a motion of no confidence in the Prime Minister. The argument takes as its foundation the proposition that the central feature of the structure of government under the Constitution is majority rule. Majority rule is reflected in s. 71(1) which provides that, subject to the Constitution itself, all questions proposed for decision in Parliament:

"shall be determined by a majority of the votes of the members present and voting".

Majority rule is also reflected in the provisions of s. 34(1) of the Constitution, to which I have already referred. It provides for the removal of a Prime Minister if a resolution of no confidence in him is passed by an absolute majority of the votes of members of Parliament.

The relevance of the central principle of majority rule is that a Prime Minister, who has lost the support of the members of Parliament should resign from office. Connolly P and Los JA take the matter further by quoting Professor Colin Howard's Australian Federal Constitutional Law (3rd ed 1985) p. 123 to the effect that, if a Prime Minister loses the support of his party and refuses to resign, the Governor-General is under a duty to dismiss him. However, as their Lordships recognised, s. 34 of the Solomon Island Constitution makes specific provision for the removal of the Prime Minister on a vote of no confidence. The reasons for the adoption of this provision have already been discussed.

Other circumstances which might attract the power to dismiss a Prime Minister under the Westminster model itself are loss of party support, a failure to secure supply and illegality.

But the existence of the express provision in s. 34(l) is, in my view, consistent only with an intention that the Governor-General's removal (or dismissal) of the Prime Minister must be preceded by a resolution of no confidence in accordance with that subsection, at least in cases where no confidence is the basis of the dismissal. The effect of this requirement is to avoid any problem which might otherwise arise of the Governor-General ascertaining whether the Prime Minister had lost the confidence of Parliament. His Excellency is to act and to act only on a tangible demonstration of no confidence in the form of a Parliamentary resolution. He is then under a duty to act; he has no discretion.

Connolly P and Los JA leave open the question whether s. 34 makes exclusive provision for the removal (or dismissal) by the Governor-General of the Prime Minister. By leaving this question open, their Lordships implicitly recognise that the proposition stated by Professor Howard is not an essential step in the reasoning to the ultimate conclusion which they reach.

What is essential to that reasoning is the following statement made by their
Lordships:

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

No authority has been advanced by counsel to support this proposition. More importantly, there is no provision in the Constitution which authorises the Governor-General to disregard the advice of the Prime Minister or to act in contravention of it on matters in relation to which the Governor-General is required to act in accordance with the advice of Cabinet.

It is possible that a difficulty might arise in the event that the advice tendered to His Excellency involves an illegality. There is no occasion to consider that question in this case.

Their Lordships held that the Governor-General's order that Parliament meet on 31 October 1994 was valid because s. 72(1) vests in the Governor-General the function of appointing "the place and time of the holding of sessions of Parliament". Yet, as I have already pointed out, according to s. 31(1), this function is exercisable by the Governor-General on the advice of Cabinet, not in his own deliberate judgment.

In my view, there is no basis at all for ignoring s. 31(1) in its application to s. 72(1) or for reading into s. 31(1) some qualification so as to give it an operation which is contradictory of what it expressly says. It follows that I am unable to agree with the conclusion reached by Connolly P and Los JA or with the reasons by which they seek to support that conclusion.

There are other cogent substantive arguments which are inconsistent with their Lordships' conclusion. In the absence of an indication of intention to the contrary or a necessary implication, the Court should not interpret the Constitution in such a way as to authorise the Governor-General to intervene in the parliamentary political process either by making a judgment that the Prime Minister has lost, or appears to have lost, the confidence of Parliament or by convening a meeting of Parliament on the initiative of the Opposition. The ordering and the management of the business of Parliament is, in the nature of things, a matter for Parliament itself or for the Government itself to determine. This general principle is recognised by the Constitution in its provisions which condition the exercise of the Governor-General's powers to summon Parliament on the advice of Cabinet or the Prime Minister.

Any departure from this principle which would give the Governor-General, in exercising his own deliberate judgment, a role in determining the business of Parliament, especially in requiring Parliament to consider a motion of no confidence in the Prime Minister, would also give the Governor-General a political role and expose him and his office to political controversy. Such a departure would demand the making of a political judgment by His Excellency on the question whether the Prime Minister enjoys the confidence of Parliament, a judgment which His Excellency is ill-equipped to make, the political milieu being one of rapidly shifting alliances and personal allegiances. What is more, a judgment made on a question of this kind in advance of the actual vote on' a no confidence motion is apt to be flawed.

To read the Constitution as authorising the Governor-General to act in his own deliberate judgment in such a way is to pay scant regard to the specific and detailed attention given by the Constitution to the exercise of powers by the Governor-General. As I have noted, the Constitution expressly limits the occasions on which His Excellency is to act in his own deliberate judgment to the particular matters which are identified in the Constitution. It is scarcely to be supposed that those who framed the Constitution, having given such careful and detailed attention to those matters, left as a matter of unexpressed implication a power to convene a meeting of Parliament to consider a motion of no confidence against the advice of the Prime Minister.

In Adegbenro v Akintola [1963] 3 WLR 63, Viscount Radcliffe, speaking for the Judicial Committee of the Privy Council, acknowledged the dangers of involving a Governor in making a judgment on the question whether a Premier has lost the support of a House when the loss of support is not manifested by a resolution of no confidence. However, his Lordship considered that the dangers were not sufficient to preclude an exercise of the power to dismiss a Premier without the testimony of recorded votes. His Lordship's observations were made in the context of s. 33(10) of the Constitution of Western Nigeria which contained a proviso prohibiting the Governor from removing the Premier from office:

"unless it appears to him that the Premier no longer commands the support of a majority of members of the House of Assembly..."

That Constitution did not contain a provision similar to s. 34 of the Constitution of the Solomon Islands; nor did it contain the specific and detailed provisions regulating the exercise of the functions and powers of the Governor-General to be found in the Constitution of the Solomon Islands. It is to be noted that, in the case of the Constitution of Sarawak, which has a closer resemblance to the Constitution of the Solomon Islands, Harley Ag. CJ (Borneo) declined to follow Adegbenro, v Akintola (see Stephen Kalong Ningkau v Tun Aban Haji Openg and Tawisli [1966] 2 MLJ 187; see also Tun Datu Haji Mustapha v Tun Datu Haji Mohamed Adnan Robert (No. 2) [1986] 2 MLJ 420).

The principal substantive argument against the views which I have expressed is that a power to convene a meeting of Parliament for the purpose of considering a no confidence motion should be implied in order to deal with a crisis. For reasons which have already been advanced, as a matter of interpretation, I find it extremely difficult to justify such an interpretation because it does not seem to be a necessary power and implication must be "necessary". Neither the circumstances of this case, nor those of Hilly v Pitakaka were, in my view, such as to require the implication to be made on the basis of necessity or "crisis". However, it would perhaps be unwise to assert that in the light of experience in the workings of the Constitution to be gained in the future, a case for a necessary implication could never be made out.

In the present case, the suggestion that the power was necessary to meet a situation of crisis, with respect, lacks compelling force. The suspected lack of confidence in the Prime Minister was unfounded when it came to a vote. The failure to pass an Appropriation Act before the commencement of the financial year was not an insuperable difficulty.

Section 103 of the Constitution makes provision for a situation in which an Appropriation Act has not come into operation by the beginning of the financial year. In that event, the section provides that:

Parliament by resolution may empower the Minister of Finance to authorise the issue of money from the Consolidated Fund far the purpose of meeting the expenditure necessary to carry on the public services at a level not exceeding the level of these services in the previous financial year, until the expiration of four months from the beginning of that financial year or the coming into operation of the Appropriation Act, whichever is the earlier".

True it is that there can be no such resolution, just as there can be no Appropriation Act, without a meeting of Parliament. But the necessity for funding the operations of government and, for that matter, of Parliament, will inevitably generate the convening of Parliament for that purpose, without the need for implying a particular power to be exercised by the Governor-General. Moreover, there is the requirement in s. 72(2) that sessions of Parliament shall be convened so that a period of twelve months does not intervene between sessions. And, in the circumstances of this case, the making of the proclamation was unrelated to an appropriation. It was confined to the no confidence motion. What is more, the meeting on 12 October, which had already been convened, was to consider the 1999 Budget and Government Bills. There was no evidence to suggest that the October meeting would not take place. Further, there was in this case no threat of non-compliance with s. 72(2). A period of five months only had elapsed since the end of the last session of Parliament. So, granted that the circumstances of Hilly v Pitakaka were quite different, there was here no foundation for the conclusion that a crisis had arisen.

The Standing Orders

Standing Order 7(3), which was mentioned by Williams JA in Hilly v Pitakaka, has been identified as a possible source of power in the Governor-General to convene a meeting, independently of s. 72. Standing Order 7 appears in Part C under the heading:

"SESSIONS, MEETINGS, SITTINGS AND ADJOURNMENTS OF PARLIAMENT".

Standing Order 7(1) repeats the provisions of s. 72(1). Standing Weirs 7(2) and
7(3) provide:

"(2) Written notice of every meeting of Parliament shall be given to Members by the Clerk at least thirteen clear days before the day of the meeting except in the case of the first meeting following the constitution or re-constitution of Parliament or in a case of emergency where the Governor-General, acting on the advice of the Prime Minister, may dispense with such notice in which event the longest possible notice shall be given.

(3) The Governor-General may, after consultation with the Prime Minister, at any time after he has determined the day and time upon which a meeting is to begin, change the day or time so determined to a later day or time or in cases of emergency to an earlier day or time."

Standing Order 7(2) entrusts the giving of written notice of every meeting to the Clerk and requires that at least thirteen clear days notice shall be given except in two cases: (a) the first meeting following the constitution or re-constitution of Parliament and (b) the case of emergency. In this respect, three aspects of the provision should be noticed. First, although the power given to the Governor-General in the excepted cases is expressed not as a power to convene the meeting but to dispense with the stipulated thirteen clear days notice, Standing Order 7(3) appears to proceed on the footing that it is for the Governor-General to determine the day and time of a meeting, perhaps by convening the meeting. Secondly, the power given to the Governor-General in the excepted cases, including the case of "emergency", is exercisable only on the advice of the Prime Minister. And, thirdly, it is possible that the word "emergency", which appears in both Standing Orders 7(2) and 7(3), should be read in the light of the definition of "period of public emergency" in s 16 of the Constitution, in which event the word "emergency" would refer either to a period in which Solomon Islands is at war or there is in force a declaration made under s.16

However, it may be significant that the Standing Orders do not use the words "period of public emergency". The Standing Orders may contemplate a state of affairs, failing short of a s. 16 public emergency, which calls for something less than the stipulated notice of a meeting. Be this as it may, Standing Order 7(2) is concerned with dispensing with the stipulated notice of a meeting. It is not directed to authorising the Governor-General to convene meetings of a particular class or category.

Standing Order 7(3) does no more than authorise the Governor-General, after consultation with the Prime Minister, to change the day or time of a meeting to a later day or, if in case of emergency, to an earlier day. The proclamation of the meeting to be held on 8 September 1998 was expressed to be based on s.72(l), not on Standing Order 7(3). That was because the proclamation did not change the day or time of the meeting which had already been convened. A meeting had already been convened for 12 October for the purpose of considering the 1999 Budget and several Government Bills, not to consider a motion of no confidence. Accordingly, Standing Order 7(3) was not a source of authority for the proclamation of 1 September 1998.

Reserve powers

Williams JA else reached the same conclusion by a different route, namely the reserve powers. His Lordship stated that as a result of factors which he mentioned and I have discussed:

"there is presently a Constitutional crisis which demands the immediate recall of Parliament".

His Lordship continued:

"In the circumstances the Governor-General has power under section 72(l) and Standing Order 7(3) to direct that the Parliament convene on a specified date. If that is not the correct interpretation of those provisions I would be prepared to hold that he was entitled to do [so] pursuant to a reserve power vested in the Governor-General."

The concept of reserve powers, being powers of the Sovereign under the Westminster Model not exercisable on the advice of the Prime Minister, but exercisable according to the Sovereign's judgment, is associated also with those constitutions which have adopted the Westminster model and have not attempted to define and delimit the powers of the Head of State or the Governor-General. It is because the reserve powers are vague, uncertain and contentious that endeavours have been made, as in the Constitution of the Solomon Islands, to make them specific.

In the context of this Constitution, with its specific provisions, it seems to me to be a mistake to treat powers which are not expressed as reserve powers, existing independently of the Constitution itself. The correct approach, as a matter of constitutional interpretation, is to pose the question whether an unexpressed power can be justified as a manifestation of intention or necessary implication. No doubt in answering that question, it will be relevant to inquire whether, under the Westminster model, a particular power has been exercised or has been acknowledged to exist as a reserve power. Even if that question be answered in the affirmative, it will be necessary to determine whether, as a matter of constitutional interpretation, the implication can be made.

In the light of the uncertainty surrounding the reserve powers, recourse to them will not commonly prove helpful. That is so in the present case. Counsel did not provide an instance of the power to convene a meeting to consider a no confidence resolution having been recognised as a reserve power and I am unaware of such an instance. The absence of evidence of such an exercise of reserve power reinforces my view that the question is best dealt with as a matter of constitutional interpretation.

Once the matter is considered in that light, the question is to be resolved in
accordance with what I have already said.

Orders

For the foregoing reasons, I would allow the appeal and set aside the orders made by the Chief Justice, except the order that the expenses incurred in instructing counsel on behalf of His Excellency he paid out of the public fund.

In lieu thereof, I would answer the questions asked in the originating summons as follows:

Q. 1 No

Q. 2 No

Q. 3 No

I would order that the costs incurred in instructing counsel in this appeal, including the motion to strike out the appeal, on behalf of his Excellency be paid out of the public fund.

Mason P