Ulufa'alu v Attorney General [2004] SBCA 1; CA-CAC 015 of 2001 (2 August 2004)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

Case Number 015 of 2001

BETWEEN

HON BARTHOLOMEW ULUFA'ALU
Appellant

AND

ATTORNEY GENERAL
First respondent

AND

HON MANESSEH SOGAVARE
Second respondent

AND

CHARLES DAUSABEA
Third respondent

AND

ANDREW NORI
Fourth respondent

AND

MEMBERS OF THE JOINT MALAITA EAGLE FORCE/PARAMILITARY FORCE
Fifth respondent

CORAM: Lord Slynn of Hadley (President), McPherson J.A., Ward J.A.

HEARING: 2^nd September 2003

JUDGMENT: Read by the Registrar of the High Court on 2^nd August 2004

1. By Notice of Motion dated 5 June 2001 the Hon Bartholomew Ulufa'alu sought from the High Court orders under section 18(1) of the Constitution of Solomon Islands declaring:

(a) that "after his resignation and pursuant to section 34(4) of the Constitution" he was entitled to continue to perform the functions of Prime Minister until a person was elected to that office in accordance with the provisions of the Constitution;

(b) that inter alia Members of Parliament and their families had been deprived of liberty, security of the person and the protection of the law in or in connection with meetings of members of Parliament on 28 and 30 June 2000 and that their rights under sections 3, 4, 5, 8, 9, 11, 12, 13 and 14 of the Constitution had been contravened;

(c) that the purported election of the Hon Manasseh Sogavare on 30 June 2001 was not valid.

2. The respondents to the Notice of Motion were the Attorney General, the Hon Manasseh Sogavare MP, the Hon Charles Dausabea MP, Mr Andrew Nori; with leave given on 23 July 2001, members of the Joint Malaita Eagle Force/Paramilitary Force were joined as fifth respondents. In the statement accompanying the application for leave it was alleged that on 5 June 2000 Mr Sogavare as Leader of the Opposition in Parliament (and in association with Mr Dausabea and Mr Nori) led elements of the Malaita Eagle Force/Paramilitary Force to seize property from the police authority and they began a coup to over-turn the government by force of arms. On 5 June and subsequently the two forces and regular members of the police force occupied the grounds of the Prime Minister's residence and unlawfully imprisoned him. Supporters of the alleged coup demanded Mr Ulufa'alu's resignation and made threats against him and Members of the Cabinet. Many people were injured as a result of the activities of those involved in the attempted coup.

3. By letter to His Excellency the Governor General dated 13 June 2000 and acting under duress Mr Ulufa'alu unwillingly tendered his resignation as Prime Minister with effect from 4 pm on the 14 June. By letter dated 14 June 2000 the Governor General set out the conditions for the holding of a meeting so that members of Parliament could elect a Prime Minister, but the conditions he indicated were rejected by Mr Sogavare on behalf of the Opposition. The Governor General then convened a meeting of Members of Parliament on 28 June 2000, which meeting was adjourned by the Governor General to 30 June 2000.

4. The Motion came before the Hon Justice Palmer ACJ on 15 and 16 October 2001. He heard together with the Motion an application by the second and third respondents for an order that they cease to be parties in the action on the ground that none of the claims sought to be made could be made under section 18 of the Constitution. The fourth respondents also asked that they cease to be parties to the action on the ground that the applicant had no locus standi to seek the declarations which he sought.

5. The learned judge, after a very detailed judgment, ordered that the second, third and fourth respondents cease to be parties: he further ruled that the Notice of Motion be dismissed in its entirety against all the respondents.

6. He stressed that what had happened was not an isolated event.

"It is important to appreciate, however, that what happened that morning was a culmination of unforeseen, unfortunate and unprecedented train of events which rocked the country and continued to shake its foundations. ... The situation in the country prior to the 5 June was not stable. The rule of law in the country had been severely undermined by rebel groups and criminals on Guadalcanal Island who showed no respect for the law. Many people had been injured, had lost relatives and their property. Their patience was running out. Some disaffected members of the Police Prison Force joined up with disaffected members of those who had been displaced, a group now known as the Malaita Eagles Force ("MEF") and hereinafter jointly referred to as "the Joint Force". It is this body which raided the police armoury on 5 June and which threatened the Prime Minister after he had been placed under house arrest. He was "told to resign or his life would be at risk". The Governor General whose guards had been disarmed, knew it was common knowledge then that the Prime Minister had been forced to resign under the barrel of a gun".

7. As the learned judge found "it became extremely urgent henceforth to have the situation brought under control. This could only be done by summoning Parliament t elect a new Prime Minister who would form a new Government, that would take the bull by the horns and address the vital pressing issues confronting the country"'. The judge continued "with wide-spread looting, stealing, harassment and intimidation on innocent citizens in the Capital, the absence of an effective police force".... His Excellency decided in his own deliberate judgment to activate the provisions of Schedule 2 of the Constitution, and call a meeting of Members for the urgent task of electing a Prime Minister in spite of the fact that the pre-conditions set by him had not been complied with.

8. Despite all this, the judge found that 44 out of the possible 50 Members attended and voted. Four it is said were either intimidated or not provided with the transport that should have brought them to the meeting and two were in Australia. Following the vote by all 44 of the members who attended the meeting, Mr Sogavare had 23 votes, the Rev Mr Boseto 21. Mr Sogavare was declared to be Prime Minister by the Governor General and his appointment was published in the Gazette on 5 July 2000.

9. The respondents contend that since the appellant seeks only the declaratory orders specified in his original Notice of Motion, and does not seek "other orders" which are there not identified, and in view of the fact that there was elected a new Prime Minister on 17 December 2001, the appellant has already achieved the redress he sought and further redress cannot be granted. In other words "the grant of leave to appeal and/or the hearing and determination of the appeal will not achieve any practicable or useful purpose". Alternatively, it is frivolous and vexatious. If this were only an application for leave to bring proceedings then there might be force in the first of these submissions in regards to some of the declarations sought. It is, however, now more than that. The judge has already considered and ruled on the orders sought and the legal arguments in favour and against an order being made.

10. It is true that the judge accepted, as the respondents contend, that the appellant resigned as a result of threats made "under the barrel of the gun", but that is not challenged on the appeal and is a clear finding of fact. The appellant, however, seeks to challenge the judge's findings as to the legal consequences of his resigning under duress.

11. It is also true as the respondents say that the Amnesty Act 2000 Constitution (Amendment) Act 2001 provided protection from criminal prosecution for various groups of persons involved in the acts done at the times relevant to these proceedings. It cannot, however, be said that this obviously renders the declarations sought here to be moot if there is otherwise jurisdiction for them to be dealt with.

12. It is agreed as the respondents contend that the appellant continued to act as caretaker-Prime Minister between the 14 and 30 June 2000 when a new Prime Minister was elected, but there remains the issue under the declarations sought as t whether that was a valid election in all the circumstances and indeed whether the resignation is to be treated as a valid resignation. It is also true that the appellant was able to be a candidate for the office of Prime Minister following the elections in December 2001 although he was not successful in that election. Nothing, however, is raised specifically as to that in these proceedings. The contention, if it is raised, that such an election result flowed from his resignation under duress, if it is raised, would be subject to difficulties as to remoteness and causation.

13. It is thus true that much of what is raised in these proceedings is therefore, as the respondents contend, history and that there may have been more effective routes available to the appellant to vindicate his rights (as eg seeking damages for false imprisonment rather than seeking a declaration that he and others had been detained in violation of their Constitutional rights). In all the circumstances, however, the Court considers that it would not be appropriate to accede to the second and third respondents' claim that this is all moot and that it should therefore apply in this case the decision of the Canadian Supreme Court in Borowski v. Attorney General of Canada (xxxx). It is accordingly in the view of this Court necessary to deal with the substantive issues raised on this appeal.

14. The learned judge dealt with the issues in three categories. The first category he labelled objections to locus standi; the second non-justiciability and the third the doctrine of necessity as applicable to the facts of the situation.

15. As to the first category, it is clear from the Notice of Motion that the applicant proceeded only under section 18 and not under section 83 of the Constitution. Section 18 provides

"Subject to the provisions of sub-section (6) of this section, if any person alleges that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress".

16. Palmer ACJ ruled that this Article permitted allegations only of contraventions or likely contraventions of section 3 to 16 of Chapter II of the Constitution and those contraventions must relate directly to or personally affect the applicant. It was not enough that someone else's rights had been contravened, or that contravening someone else's rights might have an effect on the applicant. See United Parties v. Minister of Justice, Legal and Parliamentary Affairs [1998] ILRC 614 (Zimbabwe). The judge ruled that where declaration was sought in respect of alleged contraventions of the rights of other persons (Members of Parliament and their families) they were in the first place defective because they did not sufficiently identify the individuals relied on. Moreover, the applicants sought to make claims in a representative capacity. The section did not permit that. The person who alleges that his rights had been contravened had to bring the claim himself. Finally, the applicant was not a candidate for election so he could make no complaint in that capacity. Nor since he had voted at the meeting of the Members of Parliament on 30 June could be complain that his right to vote had in any way been affected.

17. The judge also rejected arguments that section 83(2) gave the court a supplementary jurisdiction when an application was made under section 18(1). Section 83(2) provides:

"The High Court shall have jurisdiction, in any application made by any person in pursuance of the preceding subsection or in any other proceedings lawfully brought before the Court, to determine whether any provision of this Constitution (other than Chapter II) has been contravened and to make a declaration accordingly:

Provided that the High Court shall not make a declaration in pursuance of the jurisdiction conferred by this subsection unless it is satisfied that the interests of the person by whom the application under the preceding subsection is made or, in the case of other proceedings before the Court, a party to those proceedings, are being or are likely to be affected."

18. The judge held that section 18(1) was confined to allegations of contravention of Chapter II: contravention of other sections of the Constitution had to be alleged in proceedings under section 83(1). The second issue (non-justiciability) begins with the second and third respondents' contention that assuming that the appellant's resignation letter was valid, no challenge could be made as to the calling or conduct of the election of the new Prime Minister. That could only be brought under paragraph 10 of Schedule 2 to the Constitution. This provides:

"Any dispute arising out of or in connection with the calling or conduct of any election meeting or the election of the Prime Minister under this Schedule shall be determined by the Governor General whose determination of the matter in dispute shall be final and conclusive and shall not be questioned in any proceedings whatsoever".

19. The argument of the applicant was that the threats and harassment which sought to prevent Members from attending the meeting or voting invalidated the legitimacy of the meeting and the vote. Palmer ACJ ruled that these allegations related or were connected with the calling and conduct of the meeting. The applicant could have challenged the validity of the meeting at the time by referring the dispute to the Governor General but he did not do so. The Governor General was acting without any impropriety and was acting within his jurisdiction; paragraph 10 which ousted the court's jurisdiction must therefore be applied. On any review no complaint was made about the Governor General's conduct of the election and nothing has been said to suggest that such a complaint could be raised or be justified.

20. Palmer ACJ decided that in view of the fact that the Governor General remained in office, was not joined as a party to the proceedings and that his actions had not been challenged there was no need to apply the doctrine of necessity (as explained in the Republic of Fiji v. Shanbrike Prasad CAC (No ABUWO78/2000SI/O3/2000) to the present case. There was no suggestion that the Governor General had committed any jurisdictional error or that any legislation was contrary to the Constitution. No reliance could therefore be placed on the principle set out in cases like Ridge v. Baldwin [1963] UKHL 2; [1964] AC 40 or Anisminic Ltd v Foreign Compensation Commission [1969] 2AC 147. He also rejected the contention that Constitutional rights and Chapter II are enforceable between individuals as well as against the state "since other means of redress are available other than those provide for in Section 18(1)". He therefore refused the application against all the respondents.

21. It was to him clear that Section 18(l) did not give the right to apply for the declaratory orders sought in paragraphs (a)(2)(i)(2)(x) inclusive and (3) of the applicant's Notice of Motion filed on the 19 June 2001.

22. When the matter came before this court the appellants contended that Palmer ACJ had erred in those conclusions of law on which he based his decision that the second, third and fourth parties should cease to be parties to the action, that the second and third parties names be struck out of the application and the Notice of Motion be dismissed in its entirety against all the respondents. The second and third respondents moved that the appeal be struck out on the grounds which this Court has already indicated. The respondents sought in addition to uphold the judgment of Palmer ACJ.

23. It is convenient first to consider the objection raised by the second and third respondents that Section 18(1) of the Constitution (the only section relied on) does not cover the claims made by the appellant in the paragraphs of the Notice of Motion to which the court has just referred.

24. Section 18(1) of the Constitution provides:

(1) Subject to the provisions of subsection (6) of this section, if any person alleges that any of the provisions of section 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.

(2) The High Court shall have original jurisdiction:

(a) to hear and determine any application made by any person in pursuance of the preceding subsection;

(b) ...

and may make such orders, issue such writs and give such directions, including the payment of compensation, as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 16 (inclusive) of this Constitution:

Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.

25. The appellant contends that this is wide enough to cover threats made to family members or Parliamentary colleagues if they can be described as breaches of Constitutional conventions and if they did have an effect on the Prime Minister or if they were likely to have an effect or if they were intended to have an effect on him. Thus the pressure of threats to family members or colleagues which prompted his resignation would be covered, as would pressure on colleagues to withdraw their political support for his continuance in office by leaving the coalition which he led or by not turning up at the meeting to vote for him as Prime Minister.

26. This all turns on the scope of the qualification that it must be alleged that the provision has been, is being or is likely "to be contravened in relation to him''. The only express exception to that is where a person "is detained" when an allegation to the detained person may be made "in relation to him" by another person. The appellant relies particularly on the comment of Lord Macnaghten in Inland Revenue Commissioners v. Maple & Co (Paris) Limited [1907] UKLawRpAC 63; [1908] AC 22 at 26 where the words "in relation to" appeared. Lord Macnaghten said "there is no expression more general or far reaching than that".

27. In that case the issue was whether the conveyance on a sale executed abroad should be charged with duty when it related to "any matter or thing done or to be done in the United Kingdom". These words were not surprisingly held to have a general and far-reaching meaning. In the present case the words are different and more precise. The act alleged must be "in relation to" the applicant. Recognising this distinction Mr Greenwood contended that an act done to someone else can or can be likely to have or may be intended to have an effect on the applicant for relief under Section 18. However plausible this may seem at first glance, the court considered that this is not the intention of the section. Giving the words their ordinary meaning; the section provides that the act done or threatened must be done or threatened to the individual seeking to bring the proceedings. It is not sufficient to grant jurisdiction under Section 18 that an act done or threatened to a third person may at one (or more) times removed have an effect on a person seeking to rely on Section 18. This approach is supported by the decision of the Supreme Court of Zimbabwe in United Parties v. Minister of Justice Legal and Parliamentary Affairs (supra). Thus in section 24(1) [which is similar to Section 18 of the Solomon Islands' Constitution]:

"If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him ... then, without prejudice to any other action with respect to the same matter which is lawfully available, that person ... may ... apply to the Supreme Court for redress".

28. This does not mean that there is no remedy. The person directly affected can bring proceedings under Article 18(1) and there are ways both in the criminal law and the civil law of tort to enable proceedings to be brought. This Court sees no reason to imply a provision into the Constitution creating a right of action as argued by the appellant on the basis of Australian Capital Television Pty v. the Commonwealth (No 2) and NSW v. the Commonwealth [1992] HCA 45; (1992) 177 CLR 106 and 66 ALJR at 695 in respect of the acts alleged.

29. Moreover, it seems clear, though the matter has not been fully argued, that Section 83 of the Constitution is wider in its scope than Section 18. The applicant has locus standi if he "alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are or are likely to be affected by this contravention". If the claim can be put other than under Chapter II it is only required that a sufficient interest be shown rather than that there should be "a contravention in relation to him".

30. The appellant contends, however, that even if Section 18(1) read alone cannot be relied on he may proceed under Section 18(1) read with Section 83(2). We agree with the learned judge that this is not possible. Section 83(2) confers jurisdiction in proceedings otherwise lawfully for the court (which would include proceedings under Section 18(1)) but only to determine whether any provision of this Constitution other than Chapter II has been contravened and to make a declaration accordingly. It is clear that allegations of breaches of Chapter II must be made under Section 83(1) and not under Section 18(1). A complaint that the election of Mr Sogavare affects the appellant's rights under Section 34 can only properly be brought before the court under Section 34(4) and Section 83(2) first paragraph does not confer a supplementary jurisdiction to make a declaration in respect of contravention of any provision of Chapter II.

31. Mr Greenwood's further submission is that the provision of the Constitution confers rights which can be enforced not just between private individual and the state or a state or local government authority but also between individual citizens. This it seems to this court is contrary to the decision of this court by a majority in Loumia v. DPP [1985/86] SILR 158. It is also contrary to the tenor of decisions such as Maharaj v. AG of Trinidad and Tobago No 2 (1978) 2 All ER 690, Thornhill v. AG (1978) 31 WLR 498. It is, however, consistent with the dissenting judgment of Kapi J in Loumia. In this regard it is relevant to bear in mind the writings of Professor Peter Hogg in "Constitutional Law of Canada" 4th edition 1977 at pp 858-861 and Professor Catherine Swinton in the "Canadian Charter of Rights and Freedoms": Commentary 1982 (at pp 44-49). They indicate the difficulties of applying constitutional rights which are principally intended to govern state-citizen rights to private litigation between citizens where executive or legislative action is not alleged. It is not without significance that in this case the appellant has not sought to invoke the criminal law or to seek damages for false imprisonment or other civil similar law remedies which, if his allegation of fact are accepted, it seems that he could have done.

32. Prima facie this Court accepts the view of the majority of the Court in Loumia as applicable in this case but this is a developing area as to how far citizens can rely on fundamental rights inter se. It is necessary to consider the precise rights sought to be relied on and the context in which they are relied on. This Court does not think that it can be said as an absolute principle "always horizontal" or "never horizontal". Since the applicant fails on other grounds it will not be necessary to rule on this argument in this case, and the Court says no more about it. Whether the Army Council in Pride's Purge (much and interestingly relied on by Mr Goodfellow) would have fallen under the vertical rather than the horizontal case, as seems likely, the question does not directly arise on these different facts.

33. Insofar as the applicant's challenge is to the election process it seems to this Court that the position is governed by paragraph 10 of schedule 2 to the Constitution namely:

"Any dispute arising out of or in connection with the calling for conduct of any election meeting or the election of the Prime Minister under this Schedule to be determined by the Governor General with determination on the matter in dispute shall be final and conclusive and shall not be questioned in the proceedings whatsoever."

Mr Greenwood, however, submits that the ouster of the Court's jurisdiction clause is subject to what was said by the House of Lords in Ridge v Baldwin and Anisminic (supra). So far so good. But what was said in those two decisions does not help the appellant in the present case unless he can show that there has been an error of jurisdiction or breach of natural justice or some misdirection which makes inapplicable the ouster which the Constitution imposes in paragraph 10.

34. Under the Constitution the Prime Minister is elected by members of the Parliament from amongst their number (section 31(l)). The situations in which the office of Prime Minister becomes vacant are specified in section 34 and in particular "if he resigns such office by writing under his hand and addressed to the Governor-General". There is no provision that the Governor-General may accept or reject such resignation. It happens automatically and it is then for the Governor-General to convene an election meeting of Members of Parliament for the purpose of electing a Prime Minister (Schedule 2 paragraph 1). It is plain that this Court said in The Governor-General v. Solomon Sunaone Mamaloni Civ App Case No 103 1933 CASI 1993 that this means an absolute majority of the votes cast rather than an absolute majority of the existing Members of Parliament.

35. It is not suggested to that the Governor-General did not comply with any of the obligations on him in connection with the election process or that what he did was not "his own deliberate judgment". It is perfectly intelligible why the Constitution should have vested the power of review in the Governor-General under paragraph 10 of Schedule 2. This Court rejects the contentions made on behalf of the appellant that the election proceedings in Parliament were a nullity so as to justify overriding the ouster clause as the Court did in Ridge v Baldwin and Anisminic.

36. In that respect it is not necessary to consider whether the doctrine of necessity can be relied on as contended by the fourth and fifth respondents, though not by the second and third respondents.

37. It follows that any dispute about the "calling or conduct of an election meeting or the election of the Prime Minister" could only be determined by the Governor General. No such dispute was referred to the Governor General. It cannot be raised in proceedings in this Court under section 18.

38. It has not been suggested that if the appeal fails against the second, third and fourth respondents, as the Court holds it must fail, the action should continue against the first and fifth respondents. The court therefore dismisses the appeal from the decision of the Hon Justice Palmer ACJ.

Lord Slynn of Hadley (President)
Ward J.A.

JUDGMENT

Read by the RHC on 2^nd August, 2004.

McPHERSON JA: I agree with the reasons given by the President and Ward JA for dismissing this appeal. I would add only that there are, in circumstances like those alleged here, serious difficulties in identifying and suing the members of an unincorporated group of persons such as the fifth defendants whose members will certainly have fluctuated since the acts complained of were committed in 2000.

McPherson JA