Afeau v Judicial & Legal Service Commission & Anor [2007] SBCA 19; CA-CAC 4 of 2007 (9 August 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Appeal from a judgment of the High Court
of Solomon Islands (CC 12/07)

Civil Appeal No. 4 of 2007

PRIMO AFEAU
(Appellant)

v

JUDICIAL & LEGAL SERVICE COMMISSION
(1^st Defendant)

AND

ATTORNEY GENERAL
(2^nd Defendant)

THE COURT:
Lord Slynn of Hadley P,
Adams JA
Salmon JA

ADVOCATES:
Appellant: A Radclyffe
1^st Defendant: K Averre
2^nd Defendant: N A Tongarutu

DATE OF HEARING: Friday 23^rd March 2007
DATE OF JUDGMENT: Thursday 9^th August 2007

Lord Slynn of Hadly President

On 13 June 1996 Mr. Primo Afeau was appointed Attorney General of Solomon Islands by the Judicial and Legal Services Commission "in place of REGINALD TBUTAO whose appointment is hereby revoked". The appointment was made by the Commission "IN exercise of its powers conferred by section 42(2) of the Constitution and acting in accordance with the advice of the Prime Minister". At the time of his appointment as Attorney General Mr. Afeau, a barrister and solicitor, was employed in the Government Service.

By letter dated 4 August 2006 to the Chairman of the Judicial and Legal Services Commission the Prime Minster "Pursuant to the advisory powers conferred" on him under section 42(2) advised the Commission "to immediately revoke the appointment" of Mr. Afeau as Attorney General and to appoint his replacement.

The Commission by letter dated 15 August 2006 told the Prime Minister that they thought that they should defer the appointment of a successor until they had concluded their decision as to the removal of Mr. Afeau. As to that they considered that "unless cause is shown for the immediate termination of the appointment of Mr. Afeau" it would not be fair, reasonable, equitable or proper in the circumstances to do so and "no basic fact or law has been raised which would warrant or justify that termination". They concluded "we are accordingly of the firm view that the circumstances relied on did not warrant or justify his immediate termination or removal from office and recommended that the Prime Minister reconsidered his advice to terminate Mr. Afeau from office as the Attorney General. If the Prime Minister "insisted on his termination" Mr. Afeau should be given three months' notice or the salary equivalent.

By letter 24 August 2006 to the Chairman the Prime Minister set out his reasons for taking this step. "He complained that the Attorney General had begun proceedings against the Prime Minister and was appealing the rejection of his claim by the trial judge. He could accordingly not act for the Crown: "In other words the government is now stuck with an Attorney General it cannot work with. There existed "a damaged relationship that is simply irreparable". The Attorney had made misleading statements and revealed to the media details and particulars of Cabinet deliberations and documents (which are in any event confidential in nature). The Prime Minister gives details of these claims. The Attorney General failed in his obligation "to institute and defend proceedings on behalf of the Crown" which is represented by the Prime Minister. "The Government is taking the position that the present incumbent of the office of Attorney General is unfit to continue to hold that office and accordingly must be removed forthwith".

Mr. Afeau replied "I therefore conclude that the scheme of the Constitution does not warrant a conclusion that a power to appoint any public officer provides a power to remove such officer in the absence of an express power to do so."

By letter dated 7 September 2006 the Commission notified Mr. Afeau that the Commission had decided on 6 September to ask him to vacate the office of Attorney General within 7 days "to enable a new Attorney General, yet to be appointed, to take up his post". They added that what the decision does "is to remove you from the office of Attorney General but not from the Public Service. What happens therefore after 7 days is that you will be available as a very senior and experienced officer in Government for any other post or appointment on the same terms and conditions which you currently enjoy which the Government may wish to offer you. You will still remain an employee of the Solomon Islands Government". The appointment of a successor was deferred for 7 days.

The Commission subsequently explained to Mr. Afeau by letter dated 13 September 2006 that the office of Attorney General is a public office established under the Constitution. Appointments to the office are made by the Commission acting in accordance with the advice of the Prime Minister. "The constitutional office of Attorney General is held at the pleasure of the Government of the day". The Commission has received advice from the Prime Minister in which the Prime Minister purported to direct the Commission to dismiss you as Attorney General. "The Commission knows of no lawful basis for such a direction and the Commission has no jurisdiction to remove an attorney general in response to such a request". Section 18 of the Constitution does not apply. Whilst accepting that advice from the Prime Minister that there should be removal for cause, which the Commission would be bound to take into account here, the Commission has not found cause for dismissal from the service.

However "the Commission is obliged to give effect to the Prime Minister's advice to appoint another person as Attorney General." The Prime Minister has stated "that he does not have confidence in you as the principal legal adviser to Government and legal adviser to Cabinet". The Commission added that it considers that the scheme of the Constitution is that the Attorney General must be a person in whom the Government of the day has confidence, having regard to the constitutional role of the Attorney General as the Government's principal legal adviser and legal adviser to Cabinet. The Commission notes that none of the protections of termination of office afforded to other constitutional officers are afforded to the Attorney General. That is consistent with the scheme of the Constitution as it is understood by the Commission. Moreover if the Prime Minister advises that another person should be appointed as Attorney General "The Commission is bound to appoint that person unless the Commission is satisfied that the Prime Minister's nominee is not qualified to be appointed". It appeared to follow that the existing holder of the office can be removed as had happened on a previous occasion or occasions. The Commission added that, even so, the Attorney General has the tenure, as a public servant, of a permanent officer in the Solomon Islands Public Service and the Government is obliged to retain the Attorney General on the payroll "and may redeploy that person within the public service on the terms and conditions prescribed for the Attorney General or pay him the salary for the balance of the term".

The Commission on the 19 September appointed Mr. Afeau's replacement as Attorney General.

Mr. Afeau refused the Prime Minister's offer of an alternative employment as a High Court Judge and he began proceedings by Originating Summons under section 83(1) of the Constitution for a declaration that the revocation by the Commission of his appointment as Attorney General dated 22 September 2006 contravened section 42(2) on the grounds that the Constitution contains no express power to revoke the Attorney General's appointment. (The letter of 22 September was in fact a confirmation of the decisions already taken.) The Originating Summons was amended on 2 February 2007 to add a claim for "such further or other relief as the Court thinks fit".

Mr. Justice Brown on 16 March 2007 stated a Case under section 14 of the Court of Appeal Act (Cap 6) on the question whether -

1. The Plaintiffs application be dismissed on the grounds that it is -

(a) not justifiable under section 83(1) of the Constitution; and/or

(b) an abuse of the process of Plaintiffs contention in Constitution contains no Attorney General and his nor any other provision of the Court for such application to be made on the amended Originating Summons that "the express power to revoke the appointment of the concession, therefore, that neither section 42(2) the Constitution has been contravened.

2. Does Section 42(2) of the Constitution empower, expressly or impliedly, the Judicial and Legal Service Commission (JLSC) to revoke the appointment of the Plaintiff as Attorney General?

3. If yes, did the JLSC properly and lawfully exercise such power in revoking the appointment of the Plaintiff as Attorney General in the circumstances where the Prime Minister advised such revocation and the JLSC found there were no grounds as a basis for such revocation?

4. If the answer to Question 2 is no, what mechanism, if any, exists for the revocation of the appointment of the Attorney General?

The contention initially raised by the Plaintiff was that these matters should not have been referred to the Court of Appeal, but decided by the High Court, on the basis that this is really an application to strike out the Originating Summons as disclosing no cause of action. I agree that the case raises difficult questions as to the constitutional issues but, although it would have been better if the Learned Judge had ruled on these matters so that the Court of Appeal had the benefit of his views, it seems to me that he did have jurisdiction to refer these questions to the Court of Appeal.

The second contention, raised by the Second Defendant, is that the questions raised here are not justiciable under section 83(1) of the Constitution and/or are an abuse of the process of the Court. The basis of this argument here is that, since the Plaintiff contends in the Originating Summons that the Constitution contains no express power to revoke the appointment of the Attorney General, he therefore concedes that neither section 42(2) nor any other provision of the Constitution has been contravened.

The burden of his claim is that, since Mr. Afeau is saying that there was no power to terminate his appointment under section 42(2), or any other provision of the Constitution, there was no contravention of a provision of the Constitution within the meaning of sections 83(1), (2) or (3). Even if, on a strictly literal meaning of the language, that is arguable it seems to me that, on a purposive reading of section 83, this is a case where it is alleged that a step has been taken in reliance on the Constitution where the Constitution does not empower such act to be done. From the correspondence it was plain that the argument would turn in part on whether the Attorney General's appointment could be lawfully terminated under section 42(2) which the Prime Minister's letter of 22 September 2006 and the Commission's letter of 15 August 2006 referred to, or any other section of the Constitution. To act on a misreading of section 42 would then implicitly contravene the terms of section 42(3) which gave no such power. The applicant's interests were affected by such contravention in that he lost his post and the salary which went with it. This was undoubtedly a constitutional question of importance.

In my opinion the matter can be raised before the Court under section 83 and to do so is not an abuse of the process of the Court. I do not accept, either, the arguments that there is no allegation of a contravention, or that the Attorney General's failure to act earlier bars relief in these proceedings, or that his claim is for past loss whereas the section allows only claims for present or future loss. Nor do I accept the Applicant as being guilty of laches which have prejudiced the rights of others so as to bar his claim.

The starting point for a consideration of the three substantive questions is obviously section 42. "There shall be an Attorney General whose office is a public office and who shall be the principal legal adviser to the Government". As such adviser, when the Minister of Justice is not qualified as a lawyer, he can take part in the proceedings of Parliament as adviser to the Government without the right to vote. To qualify for appointment as Attorney General the person concerned must be entitled to practise as an advocate or as a barrister and solicitor in Solomon Islands. Subsection (2) of section 42 provides that he "shall be appointed" by the Commission acting in accordance with the advice of the Prime Minister. There is thus no express provision in section 42, or elsewhere in the Constitution, as to whether and how his appointment can be terminated. I agree with Mr. Radclyffe that section 32(3) of the Interpretation and General Provisions Act (Cap 85) which provides that in an Act the power to appoint includes a power to remove does not directly apply since the Constitution is not an Act. It does, however, indicate that it is not impossible or shocking to consider that a power to appoint may include a power to remove.

We have been referred to the Judgment of Mason P. in The Prime Minister v. The Governor General CAC No. 14 of 1998. I of course attach weight to that Judgment but the issue was very different from the present case and it is noteworthy that Mason P. said "the detailed prescription in the Constitution of this aspect 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" (p.19, underlining added). The position here has to be considered in the light of the provisions of the Constitution and the different functions laid down for the Attorney General in other legislation.

By the Constitutional Office's Terms and Conditions of Service (Attorney General) Regulations 2006 it is provided in Regulation 2 that "the terms of office of the Attorney General shall be permanent unless otherwise specified in a contract of employment". It is accepted that there was no contract of employment here and that this term of office was "permanent", whatever that signifies.

The office of Attorney General is not a political appointment as in London with the Attorney General being a member of one House of Parliament, a member of Government and his appointment and removal being entirely at the disposition of the Prime Minister. It still remains that many of the Attorney General's functions in Solomon Islands and London are the same or truly comparable and the Attorney General is "entitled" to take part in Parliamentary proceedings if the Minister is not qualified as a lawyer, even though he has no right to vote. Accordingly in my opinion even though his constitutional position is different from that of the Attorney General in the United Kingdom and other Commonwealth countries, the nature of his functions and his relationship with Government may be relevant to the question whether a power to dismiss is to be implied or is imported by the common law.

It would for example be astonishing if, whatever he did, an Attorney General could never be removed from office as Mr. Afeau appeared at first to contend. Mr. Radclyffe, rightly in my view, does not go so far. He accepts that such a result would be bizarre. "It is not submitted as a general position that an Attorney General cannot be removed from office. It is submitted that in this particular case the Judicial and Legal Services Commission had no power, express or implied, to remove the Plaintiff under section 42 or any other provision."

I do not, however, accept that, since the Regulations made under the Constitutional Offices Terms and Conditions of Service Act (Cap 84) as amended do not provide for removal in the absence of a contract of employment, the fact that an office is "permanent" means that the Attorney General is entitled to remain in office until death or the minimum retirement age of 55. (Section 133) It cannot be right that if an Attorney General was convicted of, or admitted, perjury or corruption in office or became mentally unstable that he could not be removed until the appropriate authorities disbarred him. The Prime Minister must be entitled to act in such situations.

It would, however, not be necessary and therefore would b e wrong to imply a power to remove under section 42 if the Constitution already includes in another section a power to remove.

We have been referred to section 118 of the Constitution which gives power to the Judicial and Legal Services Commission to appoint and remove persons holding public offices for which a legal qualification is required. The Attorney General, like Judges of the High Court and the Court of Appeal, however, are expressly excluded form this section. It is therefore of no relevance.

We have also been referred to section 116. That section provides that "subject to the provisions of this Constitution, power to make appointments to public offices (including power to confirm appointments) and to remove and to exercise disciplinary control over person holding or acting in such offences is vested in the Public Services Commission". By subsection (3) the office of a Judge of the High Court and the Court of Appeal and other senior officers such as the Director of Public Prosecutions, and the Public Solicitor are excluded from the provisions of this section. The Attorney General is not expressly excluded, nor is the Commissioner of Police.

Section 116(2) provides that the Public Service Commission may delegate "any of its powers" to any public officer. Even a discretion to refer the power of removal of the Attorney General to "any" public officer seems highly unlikely. It also seems strange to suggest that a power to remove should be implied in the powers of the Public Service Commission which does not itself have power to appoint. Further Mr. Radclyffe submits with force, that the words of subsection (1) make it clear that the power to remove persons "holding ... such offices" means public offices in respect of which the Commission has power to make appointments. The Public Service Commission does not have power to appoint the Attorney General. It follows that it cannot remove him or her. I accordingly agree that there is no power in the Public Services Commission to remove the Attorney General. The Commissioner of Police is in a different position. He is appointed under section 43 and removable under section 129 expressly. It is, therefore, not necessary or right to imply a power of removal of the Commissioner of Police into section 116.

The Second Respondent contends the position of the Attorney General is special. The choice of Attorney General is entrusted exclusively to the Prime Minister and that the role of the Commission is to only vet the qualifications for appointment. If the nominee is eligible to be appointed, the Commission must act "in accordance with the advice" i.e. it must implement the advice. In the pre-independence Constitution from 1974 to 1987 it was provided that the Attorney General held "office during Her Majesty's pleasure" (section 24(2)). That obviously covered both appointment and revocation. The Second Respondent contends that Mr. Afeau cannot claim that his appointment is permanent in the sense that he may carry on until age 55 since he may be removed (1) if there is a change of Government (or even Prime Minister) as the new Prime Minister can retain or replace the existing Attorney General or (2) if the Prime Minister loses confidence or trust in the Attorney General or (3) he is no longer entitled to practise in Solomon Islands as a lawyer or (4) he is incapacitated from carrying out his duties. He may also resign. Equally, it is said that if the Prime Minister advises the Commission that he wishes to make a new appointment, it is inherent in the scheme that the existing Attorney General's tenure is or must be revoked. Moreover as Lord Wilberforce said in Minister of Home Affairs v. Fisher [1979] UKPC 21; [1979] 3 All ER 21 "A Constitution is a legal instrument .......Respect must be paid to the language which has been used and to the tradition and usages which have given meaning to that language".

It is to be borne in mind not only that the Constitution has no express provision in sections 42 or 116 or 118 which deal with the removal of the Attorney General, but no less that when dealing with the tenure of office of certain public officers, there is no express provision about the Attorney General. Section 219 of the Constitution deals with the offices of Auditor-General, Director of Public Prosecutions, Public Solicitor and Commissioner of Police. It provides that the Public Officer concerned "may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section". This can be done by the Governor General if the question of the officer's removal has been referred to a Tribunal which has recommended such removal for inability or misbehaviour. In relation to other functions of the Governor General under this section the Governor General is General (as opposed to giving legal advice to the Government) if the Attorney General acts by virtue of his office the Prime Minister may not be able to revoke or interfere with that individual decision or action. Yet, if the Attorney General acts in a way which conflicts with Government policy, even if his act is lawful and valid, there may come a time when the conflict is such that it is contrary to the public interest that the Government and the Attorney General should be pulling in different directions. Then the public interest may require that an Attorney General should be removed. A similar position may arise where the Government or the Prime Minister loses confidence or trust in the Attorney General, or the relationship deteriorates in such a way that they cannot work together. In the absence of any provision as to determination of the Attorney General's office, the risk of damage to the public interest may justify the power of removal at will. In the present case the Prime Minister thought the case was "really about a damaged relationship that is simply irreparable". A decision as to whether the public interest requires or justifies this step to be taken is for the Prime Minister to make. It is in the ordinary way not justifiable before the Court. It is for the Government, or political colleagues to monitor the Prime Minister's actions.

This is the position whether one or both are responsible for the breakdown in confidence or relationship. The question is not who is to blame but whether the Prime Minister is satisfied, as he was here, that the relationship should not continue. It is not, therefore, necessary to consider whether allegations were made publicly which were damaging to the Prime Minister or whether confidential material had been disclosed publicly contrary to the public interest, or to decide between cross-allegations that one was obdurate and the other hasty.

Moreover it cannot be said here (if Professor Campbell is right that even where there is power to terminate at will, some rules of natural justice may have to be complied with) that the Attorney General was given no chance to know the complaints being made against him or to have the opportunity of answering them. It seems clear from the correspondence that the Prime Minister's position was fully explained to Mr. Afeau and that both at meetings and in correspondence he made clear his reply.

I add that even if there is no provision in section 42(2) of the Constitution as to termination, the fact that the Judicial and Legal Services Commission are required to appoint on the Prime Minister's advice indicates the significance of the Prime Minister's role. Subject to the candidate being qualified as a barrister no procedures are laid down e.g. so as to enable candidates to apply. The implication is the same on termination. Appointments and terminations are at pleasure because of the special role and responsibility of the Attorney General.

There is, however, another factor which in my opinion independently indicates the answer to the question referred to in this particular case. Mr. Afeau was employed or engaged in the public service for years before he was appointed Attorney General. It is accepted by both sides that he retained a right to continue in Government Service after his appointment as Attorney General came to an end. Holding the office of Attorney General was superimposed on or substituted temporarily for his ordinary Government Service. In a sense he was seconded to the post of Attorney General in place of the particular office he previously held, whilst his general appointment as a member of the Government Service continued.

Changing his post within Government Service as a public officer is very different from appointing him to, and removing him from, a post outside Government Service when the provisions of labour law more clearly apply. I therefore conclude that, although his appointment to Government Service was not at will his appointment to the office of Attorney General was. If all the correspondence from the Commission is looked at this appears to be the position finally adopted by the Commission. I do not find this result shocking or surprising in view of the nature of the particular office. He was entitled to, and did, refuse the offer of appointment as a High Court Judge and, as I understood at the hearing of the appeal, he no longer wishes reinstatement as Attorney General even if he was entitled to continue.

Since I reached this conclusion in my first draft of this judgment the acting Attorney General has found and submitted a letter dated 21st September 2003 from Mr. Afeau to the Prime Minister's secretary asking for an adjustment of his salary and allowances. Mr. Radclyffe contends that this letter should not be admitted as a document in the appeal at this stage. I have read this letter de bene esse in order to consider this point. In it Mr, Afeau says that "the power to remove the Attorney General is vested in the [Judicial and Legal Services Commission] and in accordance with the Prime Minister's advice. It is the Prime Minister who effectively has the power. Previous Prime Ministers have exercised the power of removal without notice on two occasions. The person holding the office of Attorney General in effect has no security of tenure and can be removed at any time depending on the Prime Minister of the day". The "holder of the Office of Attorney General has no security of tenure of appointment and can be removed at the whim of any Prime Minister of the day, especially when a new Government comes into office". If the position here were that Mr. Afeau had the post of Attorney General under a contract of employment there would thus be clear evidence that not only the Prime Minister but also Mr. Afeau thought that he held the office of Attorney General at will. Since, however, I consider that this office was not held under a contract of employment this letter cannot be conclusive even if admissible on the position under the Constitution.

For the reasons given, however, I hold that the Commission of Judicial and Legal Services was entitled to accept that the Prime Minister could validly advise the Commission to remove the Attorney General and that the Commission must follow that advice.

JUDGMENT OF SALMON JA

I concur with the judgment of the learned President but wish to add some observations.

The issue to be resolved is one of statutory interpretation. I have found some of the observations of Francis Bennion helpful. In the introduction to Statutory Interpretation, Third Edition, at page 1, Bennion states:

"As the ultimate concentrate, one can do no better than offer the opening words of Maxwell's great work - 'Statute Law is the will of the legislature; and the object of all judicial interpretation of it is to determine what intention is either expressly or by implication conveyed by the language used, so far as necessary for the purpose of determining whether a particular case or state of facts which is presented to the interpreter falls within it.' "

And then at page 805, Bennion states:

"An Act of Parliament is not a statement in a vacuum. Parliament intends its Act to be read and applied within the context of the existing corpus juris, or body of law. The Act relies for its effectiveness on this implied importation of surrounding legal principles and rules."

Thus it is legitimate, in my view, if a specific power is not given by the constitution in a situation where a power is necessary, to imply that power calling in aid the total legislative context of the Solomon Islands. This would include, by way of analogy, the power given by s.32 of the Interpretation and General Provisions Act to the effect that where an act confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and the provisions of the common law relating to prerogative appointments where there is no doubt that a person appointed on the advice of the Prime Minister could be dismissed in the same way.

I agree with the President, and for the reasons set out by him, that s.116 does not provide a power to remove the Attorney-General, and I agree too, that the Attorney-General could not be removed from office by regulations made under the Constitutional Officers (Terms and Conditions of Service) Act. Even if that Act applies to the office of Attorney-General, a proposition which is challenged by the Acting Attorney-General in her submissions, I would accept her argument that the regulations apply to the office, rather than to a specific holder of the office and leave open the question as to how and when the holder of the office may be replaced. I conclude with the President that a power to dismiss must be implied and that the JLSC must dismiss an incumbent Attorney-General if required to do so by the Prime Minister, just as it must appoint an incumbent provided it is satisfied that he has the qualifications required by the Constitution.

In my view, the actions of the Attorney-General in this case put him on an inevitable collision course with the Government and the Prime Minister. The Attorney General decided to challenge a decision of the Government with which he disagreed and which was contrary to advice he had given to the Government. Although we did not hear full argument on this point I doubt that this is comparable to a relator action. The Attorney-General's task while he is in office is to give independent advice to the Government. If the Government refuses to accept that advice then, depending upon the seriousness of the issue, an Attorney-General may feel that he had no option but to resign.

I agree with the answers to the questions posed for our determination set out in the judgment of the learned President.

ADAMS JA:

Introduction

I have had the advantage of reading in draft the judgments of the President and Salmon JA. I agree with their Lordships that the Court below had jurisdiction to refer the questions at issue to the Court of Appeal. I also agree that the matter can be considered by the Court under s83 of the Constitution (all mention of legislative provisions hereafter is to the provisions of the Constitution), that it is not an abuse of the process of the Court and there is no reason to bar the Applicant from relief on the grounds of his conduct. I have the misfortune, however, to disagree with the other members of the Court on the principal question, namely whether the Applicant's appointment as Attorney-General (hitherto, for brevity, the Attorney) was lawfully terminated. In my view, s42 (2) confers on the Judicial and Legal Services Commission (JLSC) the power of appointment of the Attorney only and does not confer an implicit power of termination. In explaining the reasons for my respectful dissent from the conclusion as to this point drawn by the majority, I gratefully adopt the factual account of the circumstances surrounding the Applicant's dismissal contained in the judgment of the President.

Before moving to the question of the power of removal of the Attorney, I wish to point out that the Prime Minister was not in a position to offer to the Applicant an appointment to the High Court. Under s78, the judges of the High Court are appointed by the Governor-General acting in accordance with the advice of the Judicial and Legal Services Commission (JLSC). In considering whether or not to tender such advice, the JLSC must act on its own entirely independent consideration of the matter. Although the JLSC might consult the Prime Minister if it thought it desirable to do so, it is not bound to do so. It would be a profound breach of its Constitutional responsibilities if the JLSC were to defer to the views of the Prime Minister, let alone consider them to be binding. Moreover, s 78 makes it clear that the Governor-General is obliged to act on the advice of the JLSC, whatever advice might be tendered by the Cabinet or a Minister (cf s31 (1)).

The Constitutional status of the Attorney-General

By s42 (1) the Attorney's office is "a public office" and, by necessary implication, the Attorney is a public officer. The Attorney's function is "the principal legal adviser to the Government". This both a direction to the Attorney and to the Government. Under s35 (dealing with the functions of the Cabinet) the Attorney "shall be the legal adviser to the Cabinet and as such shall attend the meetings of the Cabinet unless otherwise directed by Cabinet". Under s42(4), in the event that the Minister responsible for justice is not legally qualified, the Attorney is "entitled to take part in the proceedings of Parliament as adviser to the Government" but is not entitled to vote in Parliament or to elect the Prime Minister. The Attorney performs the functions of the Director of Public Prosecutions in the Director's absence or when the office is vacant: s92 (9) and is a member of the JLSC. I will deal with these aspects of the Attorney's functions later.

The term "public office" appears in a number of Constitutional provisions. It is defined in s144 as "an office of emolument in the public service" (subject to irrelevant exceptions in s145); a "public officer" is "a person holding or acting in any public office"; and the "public service" is "the service of the Crown in a civil capacity in respect of the government of Solomon Islands". Section 40 requires departments of the Government to be "under the supervision of a Permanent Secretary or some other supervising officer whose office shall be a public office"; ss43, 91, 92, 96 and 108 make the offices of the Commissioner of Police, Director of Public Prosecutions, the Public Solicitor, the Ombudsman and the Auditor-General public offices. The attribution of this term to various officeholders subjects them to the provisions of the Leadership Code in Chapter VIII which applies to "public officers" amongst others. None of these offices can be filled by the Public Service Commission (PSC). Since, however, the PSC is by s116 empowered to "make appointments to public offices" it follows that the Constitution does not use the term "public office" to distinguish what might be called Constitutional offices from any other kind of public office, although their modes of appointment, discipline and removal may differ. By s 145, the expression "public officer" includes (subject to the context) judges and members of any court of law but not (amongst others) a Minister, Leader of the Official Opposition, Leader of the Independent Members, Speaker or member of Parliament, or the office of any member of any Commission established by the Constitution.

It is a crucial aspect of the functions of public officers, including the Attorney, that they involve no political responsibilities. Political responsibility is in the hands of the Prime Minister and Ministers, who do not hold public office and are not public officers.

The removal of public officers

It seems to me to be significant that, in respect of every public office for which specific provision is made in the Constitution (Constitutional officers), except for that of the Attorney, both the mode of appointment and the mode of termination are explicitly provided for. Thus, s129 provides, in respect of the Auditor-General, Director of Public Prosecutions, Public Solicitor and the Commissioner of Police, for vacation from office at a specified age or expiration of a specified term and otherwise for removal for unfitness following reference to a tribunal. Section 96 gives the same protection to the Ombudsman as to a judge, though he or she must vacate the office after 5 years. So far as other public offices are concerned, s116 gives to the PSC the power to make and confirm appointments to public offices "and to remove and exercise disciplinary control over persons holding or acting in such offices" (emphasis added - I will deal with the question whether it includes the office of Attorney in due course.) The Teaching Service Commission has power to appoint teachers and is given a specific power to remove them: s116B. The Police and Prisons Service Commission (PPSC) is given power of appointment of police officers of or above the rank of Inspector (except the Commissioner) and power to make appointments below that rank is given to the Commissioner: s120. Section 121 gives the power of removal of police officers to the PPSC and the Commissioner, depending on rank. Similar provisions apply to the roles of the PPSC and the Superintendent of Prisons with respect to prison officers, that is to say, both appointment and removal are specifically provided for: ss123, 124. Section 127 gives power to the Governor-General, on the advice of the Prime Minister, to appoint Ambassadors, High Commissioners or other principal representatives and also the power to remove them. Section 44 gives the Governor-General power, on the advice of the Prime Minister, to constitute offices for Solomon Islands, make appointments to them and terminate any such appointment.

The JLSC is given power to appoint and to remove to all public officers for which a legal qualification is required, magistrates and prescribed officers, except the Attorney, judges, the Director of Public Prosecutions and Public Solicitor: s118. It is, perhaps, somewhat difficult to exactly appreciate the sense of this provision so far as the Attorney is concerned since by express terms s42 (3) states that he "shall be appointed" by the JLSC. It is true to say, of course, that the appointment is made on the mandatory advice of the Prime Minister but this does not qualify the fundamental role of the JLSC as the body which appoints the Attorney. Judges, the Director of Public Prosecutions and the Public Solicitor are not, as has been noticed, appointed by the JLSC. Of the offices specifically excepted from the provisions of s118, the Attorney is alone appointed by the JLSC. Of all other appointments made by the JLSC, an express power of removal is given to the JLSC. The Attorney is expressly excluded from the express power of removal. (I note that, also, the Attorney is excluded from the JLSC's power of disciplinary control, no doubt for obvious reasons - one of which is his membership of the JLSC - but this is not significant to my mind.)

The position may be summarised as follows: in respect of powers to make appointments to Constitutional and other public offices, a specific power to remove the appointee from office is provided, with the sole exception, in the view of the majority, of the Attorney. Moreover, although the power to remove officers appointed by the JLSC, except for the Attorney, is expressly given to the JLSC, if the majority be correct, the Constitution has left to the JLSC an implied power to remove him on the mandatory advice of the Prime Minister. At the very least, the conferring of a implicit power to remove an important Constitutional officer, applying uniquely to the Attorney, where there is an express power to remove every other holder of an office to which the Constitution refers seems markedly, indeed inexplicably, inconsistent with the Constitutional scheme as to appointment and removal. I think that the likelihood of the drafters of the Constitution intending to bring about this result so remote that this interpretation ought not to be accepted unless no other interpretation were possible. Put otherwise, I would conclude that, as a matter of statutory construction, there is no room in s42 (3) for an implied power of removal so that, in respect of the Attorney the only role of the JLSC is that of appointment, the power specifically granted.

The implications of specific grants of power

This conclusion is strengthened by a consideration of the way in which the Constitution itself deals with implications of a grant of the power to do something. Section 133 specifically deals with the implications of the power to make appointments to any public office. Such power includes a power to make appointments by promotion and transfer and acting appointments. Thus, in dealing with the powers to be implied from the power of appointment, the power of removal or revocation is not implied. In my opinion, this provision should be construed as dealing with the subject matter of the implications of a grant of the power to appoint. The fact that it does not provide for the power to remove or revoke appointment means, in my view, that no such power should be implied. That the section does not apply to the Attorney is clear - there cannot be a power to promote or transfer him. But it demonstrates that the implications of a power to appoint were the subject of express provision. This seems to me to make it impossible to accept that the Constitution should be so read as to have left to the common law the power to remove the Attorney and by a common law rule of statutory construction (applying, of course, only if the context allows) to give that power by implication to the JLSC at the instance of the Prime Minister. I note, in this context that, conversely, s135 makes express provision for the implications of the grant of the power to remove a public officer. Section 139 should also be noticed: it provides that the power to make a proclamation, regulation, order or rule, or to give any direction or instruction, includes the power to amend or revoke any such proclamation etc. In short, I think that it is scarcely likely that the drafters of the Constitution overlooked the possibility that a power to appoint to public office might be construed as implying a power to remove from public office or revoke the appointment. It follows, to my mind, that it is highly unlikely that they intended to leave such an important matter to implication.

The fact is that wherever it may have been possible to infer under the common law or by way of statutory construction that the power to do included the power to undo, the Constitution itself makes express provision, except (if the majority be correct) in relation to the power to appoint the Attorney. This analysis reinforces the conclusion that the scheme of the Constitution is to make express and comprehensive provision for both appointment and removal of holders of all public offices. I do not accept that the position of the Attorney's office was overlooked.

The role of the Attorney-General

I entirely agree with the President that the nature of the Attorney's functions and his relationship with the Government is relevant in considering the question presently arising. However, I draw from the Attorney's position vis-a-vis the Government a quite different conclusion, although I rely primarily what I take to be the terms of the Constitution itself.

I set out earlier in this judgment the functions assigned to the Attorney by the Constitution. It is clear that those functions are in no sense political. His responsibility is to tender legal advice, not political advice. As I have noted, his involvement in Parliament where the Minister responsible for justice is not legally qualified is limited to participation in the proceedings "as adviser to the Government". What this precisely entails is unclear but, plainly, he is not free to make speeches on the subject matters under debate except, it may be, as to legal questions. He is not answerable to Parliament for his advice and, it seems to me, cannot be questioned about it or the exercise of his Constitutional responsibilities. His Parliamentary role is legal adviser to the Government, not legal adviser to the Parliament, still less the members of Parliament or any party.

This is in marked contrast with the role played by the Attorney General in, for example, the United Kingdom, Australia and New Zealand and highlights the fundamental difference between the Attorney's role under the Constitution of Solomon Islands and the role of Attorney General in, for example, the United Kingdom. In the latter case, his political role is not only inescapable, it is fundamental. As a Minister, he is actively involved in Government policy and decision-making at a high, if not the highest (if not in Cabinet) level and is in no sense constrained by his office to the tender of legal advice. He is appointed by the Queen as Head of State on the advice of the Prime Minister. Just as fundamental is the circumstance that his membership of the Government derives from his election as a Member of Parliament or (in the United Kingdom, though seldom) as a Member of the House of Lords (although there have been rare occasions when the Attorney General has not been in Parliament). He is as liable as any other member of the Government to answer questions in the House. When he speaks in the Parliament he does so as a representative of the Government and it is accepted that he has a duty or, at least, will be expected to support the Government's position. Where he is elected (as is invariably the case in Australia and New Zealand) he has responsibilities to his constituency and other responsibilities as a Member of Parliament. He will vote on all matters before the House. He will be a member of a political party. Not only, therefore, are the role and responsibilities of the Attorney of Solomon Islands fundamentally different from the role and responsibilities of the Attorney General in the other Westminster model democracies to which I have referred, but the very source of his eligibility for and mode of appointment to the office of Attorney is fundamentally different: he is not permitted to be elected to be a Member of Parliament (s49 (1) (b)); he is not appointed by the Head of State. Indeed, no person holding a public office (except of a Ministerial kind) can be elected a Member of Parliament in the United Kingdom, Australia or New Zealand for reasons deep rooted in the history of development of Parliamentary democracy and, I think, reflected in the Constitutions of Solomon Islands. This principle is so important that, even if the only difference between the Attorney of Solomon Islands and the other Attorneys General were that the former is an unelected official and the latter are elected, this would reflect, in my opinion, a difference in status of enormous significance.

Moreover, the legal advice tendered by the Attorney must be entirely independent of any political considerations although, no doubt, it would be proper for him to advice on the possible legal methods by which a particular Government policy could be effectuated. By contrast, a political Attorney General is entitles to express opinions on the political advisability of acting on the legal advice he has tendered and, where the Government's political interests are served by taking one path rather than another, to advise on how alternatives legal views might best further those interests. This reflects his positions as a participant in Government rather than a mere, albeit principal, legal adviser. Of course, as with any client, the Government is not bound to accept the Attorney's advice and it is free to seek advice from any source it thinks appropriate. The communications between Attorney and Government are protected by legal professional privilege.

I therefore, with unfeigned respect, differ from the president's view that many of the Attorney's functions are the same or truly comparable with many of the Attorney General's functions in the United Kingdom or, for that matter, Australia and New Zealand. The only comparable function is that of giving legal advice and taking legal proceedings in the public interest of which the most certain circumstances, to undertake proceedings in the public interests of which the most important concern the protection of the administration of justice. Except in the absence of the Director of Public Prosecutions, he does not even prosecute on behalf of the crown. If one were seeking for a comparable official in Australian and New Zealand, the closest would be, I think, the Solicitor General.

(I should mention that the various statutes gives the Attorney some statutory responsibilities: he sues and is sued on behalf of the Crown in civil proceedings; is Chairman of the Legal Practitioners Disciplinary Committee, is a member of the Investment Corporation of Solomon Islands, Chairman of the Anti-Money Laundering Commission and member of the Nominating Committee for appointment of members of the Leadership Code Commission. Aside from the first role, which is typically one exercised - though only as a nominal defendant - by Attorneys General, the other functions are not political in character. It seems to me that these statutory responsibilities do not shed any useful light on the Attorney's Constitutional position or the particular question with which are concerned.)

It may be worth mentioning that, because the office of the Attorney if non-political, the reasons that in, say, the United Kingdom, Australia and New Zealand a change of government will involve a change of Attorney General do not apply in Solomon Islands. The fact that this has apparently happened is by the way: there is no legal imperative that requires such a change.

Is there an express mode of removal of the Attorney?

As I understand it, all members of the Court are agreed that it is necessary to resort to an implicit power to dismiss only if there is no express power available. In my view such an express power is available in s116, which is as follows -

116 (1) subject to the provisions of this Constitution, power to make appointments to public offices (including power to confirm appointments and to remove and to exercise disciplinary control over persons holding or acting in such offices is vested in the Public Service Commission.

(2) The Public Service Commission may, subject to such conditions as it thinks fit, delegate any of its powers under this section by directions in writing to any member of the commission or to any public officer.

(3) The provisions of this section shall not apply in relation to-

(a) the office of any judge of the High Court or Court of Appeal;

(b) the office of Ombudsman, Director of Public Prosecutions, Public Solicitor or Auditor-General;

(c) any office to which section 116B [offices in the teaching service] or 118 [offices in respect of which the JLSC has express power of discipline and removal] of this Constitution applies;

(d) the office of any member of the Police Force or Prisons Service; or

(e) any office to which section 127 [appointments by the Governor-General] of this Constitution applies.

(4) The Public Service Commission shall not exercise any of its powers in relation to any office on the personal staff of the Governor-General or in relation to any person holding or acting in any such office without the concurrence of the Governor-General, acting in his own deliberate judgment.

(5) Before making any appointment to any office on the staff of the Ombudsman, the Public Service Commission shall consult the Ombudsman.

(6) Before making any appointment to the office of Clerk to the Legislature, the Public Service Commission shall consult the Speaker.

It is clear that the drafter of this provision considered that, but for subs116 (3), the public offices subject to the powers of the PSC would extend to the specified Constitutional offices, even though appointments to such offices are not made by the PSC. It follows that the expression "such offices" in subs116 (1) cannot be limited to offices to which appointments are made by the PSC. Consequently, the office of Attorney (as with the excepted offices, one to which appointment is not made by the PSC), which is in express terms a public office (s42 (1)) and is omitted from the list of excepted offices, is an office the power of removal from which and the exercise of disciplinary control as to which "is vested in the Public Service Commission". As mentioned by the President, the Commission of Police, whose office is a public office (s43 (1), is not one of the officers excepted in subpara 116(3) (b). However, by subpara 116(3) (d) "the office of any member of the Police Force or the Prisons Service" is excluded. It cannot be doubted that the Commissioner, as the commander of the Police Force, is a member of that Force: there is no distinction made in the Constitution between officers and other ranks.

Accordingly, in my opinion, s116 comprehensively covers all public offices provided for in the constitution, and either by inclusion or exclusion and, therefore, that the Attorney's office falls within the PSC's powers of discipline and removal. There is therefore neither the need nor room for any implicit power in the JLSC of removal of the Attorney from office or revocation of his appointment.

Nor is it surprising that the power of removal and discipline may be exercised by the PSC, though it does not appoint the Attorney. It is easy to understand why the Prime Minister might reasonably be given the (effective) power of appointment. At the same time, the Attorney's ability to give independent, forthright and possibly unpalatable advice is of obvious great importance. In other jurisdictions, it is true, Attorneys General are believed to give such advice without any formal protection from summary dismissal by the Prime Minister, thought they are protected by convention from such action. However, it does not follow by any means that providing such institutional protections as is (on my view) afforded by s116 is unwise or unnecessary, let alone so strange as to be placed in the scales against the clear meaning of the section. I develop this point further later in this judgment.

The President gives some significance to the ability of the PSC to delegate its powers to appoint, discipline and removal public officers to a member of the Commission or another public officer, so that there is theoretical possibility that the Attorney- by all accounts, an important Constitutional officers- might be dealt with by a relatively minor official. However, in this respect it is relevant to note that Permanent Secretaries or the supervising officers of government departments hold public office and are subject to the same scheme of discipline and removal. Such public servants could not be regarded as any less senior or undertaking any lesser responsibilities than the Attorney; indeed, on one view, the opposite might reasonably be regarded as the case at least for some, for example the Head of Finance or the Secretary to the Cabinet, given by s41 the status of Permanent Secretary. The propriety and extent of delegation is left by the Constitution to the good judgement of the PSC. I do not consider that the power of delegation mitigates against the construction that I have proposed for s116 in respect of the Attorney.

The need for an independent Attorney-General

This brings me back to the subject of the role of the Attorney. It will have been seen, I think, that his position is rather that of a public or civil servant in the Australian, New Zealand or United Kingdom context than that of a political Attorney General. His exclusion from all political and executive responsibility makes it appropriate, or at least reasonable, that the Attorney should be subject to a similar regime as to discipline and removal as the other, even very senior, public officers. The effect is to ensure or, at least support, what is plainly in the highest public interest - namely the tendering of independent advice to government, advice that is not only independent but seen to be so. It is the responsibility of public officers and, the more senior the greater and more important the responsibility, to tender objective and independent advice to government. Sometimes that advice will be unwelcome and, accordingly, such officers should be placed in the position where, within reasonable limits, they will not be subject to sanctions for tendering it. No doubt this is an important reason for the Constitution to give to the PSC the exclusive power to discipline and remove public officers. At the same time, public officers are not a power unto themselves. They are bound to implement the policy of government, even if they disagree with it, to the best of their ability providing, of course, it is lawful to do so. The Attorney, however, is plainly no bound by the policy of government in respect of maters upon which it is his duty to advise. Indeed, it may be necessary for him to advise that a government action or policy is unlawful. In doing so, it is plain that the action or the policy cannot be regarded as lawful because it is what the government does or wants to do. For this reason, the Attorney's principal role is not, unlike that of other public officers in the departments of government, to implement the policy of government. In respect of conduct of litigation on behalf of the government, the Attorney, of course, is bound to follow the government's instructions just as any lawyer is bound by the instructions of his client. Thus, the mere fact that the government may, in a particular circumstance, have a good cause of action against some person will not bind the Attorney to undertake proceedings if the government instructs him not to do so, even if those instructions are entirely motivated by political considerations. Such matters are not for the Attorney but for those entrusted by the Constitution with the responsibility of government. But, in tendering legal advice to government, the Attorney is not at all under the control or influence of the government: he must exercise that function fearlessly, objectively and independently, uninfluenced by any political considerations. This is a Constitutional duty that he is bound to undertake in the public interest. It is scarcely possible to over-emphasise the importance of this function.

But the tendering of advice is not the only function of a pubic character entrusted to the Attorney. He also exercises the prerogative of the Crown in the safeguarding of the administration of justice. In this respect, he acts ex officio and independently of government as the guardian of the public interest. In England, so fundamental is this rule that the Attorneys General have appeared before tribunals of inquiry set up to investigate, for example, allegations of corruption against Ministers to introduce incriminating evidence and conduct "rigorous cross examination against their ministerial and political colleagues in an endeavour to assist the tribunal to ascertain the truth" (see the magisterial work on the role of the Attorney General by Professor John LI J Edwards: The Attorney General, Politics and the Public Interest, Sweet and Maxwell, 1984 at 51). It is worth quoting the words of Lord Shawcross, a very eminent Attorney General, to the Lynskey tribunal (convened in 1948 to inquire into allegations of corruption against certain members of the then Government) on the opening day of its inquiry, as cited by Edwards (ibid 51-52):

"As the tribunal knows very well, but it is not always understood elsewhere, though the Attorney General is a member of the government he has certain duties which he cannot abdicate in connection with the administration of the law, especially of the criminal law and more particularly that branch of it which is concerned with the prevention of corruption. Those duties are sometimes said to be of a quasi-judicial nature. The Attorney General has to discharge them with complete independence of the government...In these matters...the Attorney General's duty (and it is his duty) is to concern himself, and to concern himself only, with the representation and protection of the public interest."

There is a wide range of different approaches throughout the Commonwealth, between the fully political model (eg in Australia) and the public servant model (eg in India and Solomon Islands). The complete independence of the Attorney General in exercising his responsibilities to advise government and to act in the public interest is the fundamental principle of constitutional law. This independence is not an act of choice. The Attorney cannot have regard to the potential embarrassment of any person or any Minister, however senior; he cannot accept any direction - he must act conscientiously pursuant to his own judgment of the public interest. If the Government has signalled an intention to undertake conduct which, in the Attorney's opinion, is or likely to be unlawful, he is bound to advise the Government that this is so in unmistakeable terms. Moreover, he is bound to take such action as the thinks is necessary or appropriate to prevent the conduct from occurring or, if it has commenced, prevent its continuance, including the commencement of legal proceedings ex officio. Indeed, he may be the only person able take the action such action: Gouriet v UPW [1977] UKHL 5; [1978] AC 435, where their Lordships also expressed in emphatic terms the independence of the Attorney in considering whether to take such action.

In this context, one problem that may arise if the power to remove the Attorney is, in substance, at the direction of the Prime Minster for any reason that he thinks sufficient is that which arose in this very case.

As the papers provided in relation to the matter disclose, the Prime Minister, on 8 June 2006, submitted to the Attorney (as he then undoubtedly was) for comment the proposed terms of a Commission of Enquiry concerning the civil unrest of April that year. The terms comprehended some matters that in all probability would need to be heard and determined in committal proceedings then in prospect and, if committed for trial, the ensuing trial of two persons: the Hon Dausabea and the Hon Ne'e. The Attorney expressed the opinion, amongst other things, that certain of the terms of the proposed Enquiry could prejudice the proper conduct of those proceedings and could lead to a conflict with the Constitutional independence of the Director of Public Prosecutions. Responding to a question posed by Cabinet on 19 June 2006, the Attorney gave further and more detailed advice on the proposed terms of reference on 20 June 2006, in which, amongst other things, he advised against inclusion of a specified term. On 13 July 2007 the Attorney tendered further advice in which he referred to the potential for a conflict of interest of one of the proposed Commissioners. Then, on 24 July 2006 the Solicitor - General wrote to the Prime Minister advising that two of the (by then finalized) terms of reference of the Commission of Enquiry "raise issues for determination which beyond the legal competence" of the Commission and explained why he was of that view. That letter of advice concluded as follows-

"Since the issues which I have raised are matters of public importance, and relate to constitutional rights and public rights, the Attorney-General has the right to seek clarification from the High Court and I propose to take proceedings seeking a declaration that the two above mentioned terms [of reference] would involve the Commission in a contempt of the Magistrates' and High Court and an injunction to restrain the Commission from undertaking an inquiry into those matters, unless you inform me that you agree to my suggestions course, namely to delete those terms from the reference."

On 4 August 2006 the Prime Minister wrote to the Attorney asserting that there "is a serious conflict of interest on the part of the Attorney General in commencing any legal proceedings" as proposed. The letter concluded-

"As you would appreciate, this development is clearly seen by Government as a direct protest by the Attorney General against the President and members of the Cabinet for disregarding his legal advice on certain aspects of the COI TOR, something which we are not legally obliged to do. I would also advise that it breathes an air of antagonism into our working relationship and questions are appropriate of allowing the present incumbent of this distinguished office to enjoy the privy of Cabinet meetings and access to Government confidential documents, therefore placed the government in a rather unpleasant situation.

I therefore direct you to immediately withdraw these cases and discontinue the proceedings by 2.00pm today, Friday 4^th of August 2006 and provide evidence to me in writing that you would or would not comply with this directive."

On 4 August 2006 the Prime Minister wrote to the JLSC advising that the appointment of Mr Afeau as Attorney should be immediately terminated.

On 11 August 2006, the Attorney wrote to the Prime Minister advising him of the legal responsibility reposed in the Attorney under the common law for the vindication of public rights and explaining why proceedings has been commenced against him in the High Court.

On 15 August 2006 the JLSC wrote to the Prime Minister, having deferred a decision on his advice to terminate Mr Afeau's appointment, informing him of its "firm view that he circumstances relied on by you don no warrant or justify his immediate termination or removal from office and recommend that you reconsider your advice to terminate Mr Afeau from Office as the Attorney General". The JLSC informed the Prime Minister that there was "no basis in law or in fact...which would warrant or justify the immediate dismissal of Mr Afeau" and that he "was acting in the public interest, a matter within his discretion to exercise".

The Prime Minister responded, in substance, that the Attorney's action had given rise to a "damaged relationship that is simply irreparable" requiring him to vacate his office. Other allegations were made about the Attorney's conduct.

In the result, the JLSC felt it was bound to follow the advice of the Prime Minister and remove Mr Afeau from the office of Attorney. In doing so, it made it clear that there was no cause for dismissal arising out of his conduct.

It is patently obvious that the reason for the advice of the Prime Minister to the JLSC to remove the Attorney was that the Attorney has commenced action in the High Court for a declaration as to the lawfulness of the impugned terms of the Commission of Enquiry. Of course, there was no conflict of interest involved in the Attorney's action. This is fundamental and is derived from his position of independence. If there was a proper basis for that proceeding - and it was never suggested by the Prime Minister in anything put to the JLSC that there was not, in point of legal principle - then it is irrelevant that the High Court declared that the impugned terms were not unlawful. The undertaking of such a proceeding was a matter for the independent judgment of the Attorney, a matter in respect of which, he was not, and necessarily could not be an ought not to have been subject to the directions of the Prime Minister.

It is therefore not to the point (in considering whether any institutional protection is desirable) that the Attorney undertook independent action, even though he believed - as it seems - that he could be dismissed by the Prime Minister for doing so. It is to his credit that, despite this risk, he acted in what he judged to be the public interest. The particular point here is that, by his removal, the proceedings were effectively forestalled. The appeal to this Court he instituted following the adverse decision of the High Court was terminated by the then acting Attorney-General. Had Mr Afeau been removed before he had the opportunity to commence proceedings, they would never have been commenced.

Thus, the power to remove the Attorney assertion in this case by the Prime Minister, if it exists, would allow the Government to prevent any Attorney from taking proceedings in the public interest, even to protect the administration of justice, by the simple expedient of dismissing him either before the proceedings were commenced or, once they had commenced, before they had been completed. Indeed, that is precisely what occurred in this case. Had there been no delay by the JLSC, so that the Attorney has been dismissed when the Prime Minister first advised the JLSC to do so, there can be little doubt as to what action would have been taken by the new Attorney in the proceedings.

If the Constitution be interpreted as my brethren propose, the independence of the Attorney will be significantly compromised; more than that, his ability to exercise his constitutional role in protecting the public interest by undertaking appropriate legal proceedings will be severely curtailed. It will be easy for any Government to frustrate any action that he considers it necessary to take in the public interest by instantly dismissing him. With profound respect for the President, who speaks as to the United Kingdom position with unmatched experience, I am unable to accept that the long history of robust independence of Attorneys General in that country affords any real assistance in considering the position in Solomon Islands. The Solomon Islands is not the United Kingdom; the present political institutions of Solomon Islands are relatively recent and came about in circumstances that could not be further removed from those in which the institutions and conventions of the United Kingdom developed. Let me just mention one particular matter by way of example. It is accepted in the United Kingdom that it would be grossly improper for a Prime Minister to give a direction to the Attorney General in the terms given to this Attorney. Although, no doubt, the Prime Minister could dismiss the Attorney General for refusing to obey such a direction, to have done so would have been regarded as an act of grave impropriety. It is clear that no such view is held in Solomon Islands or, if it is, it is not held by the Prime Minister.

Accordingly, the drafters of the Constitution had good reason indeed for considering that the power of removal of the Attorney should not be placed in the hands of the Prime Minister, instead of giving him the ability to determine who the Attorney would be, but then buttressing the independence and functions of that officer by reposing the power of discipline and removal in the PSC. In my view, the wisdom of that course is demonstrated, not only by Constitutional theorising, but by the brutal facts of the present case.

Removal for misconduct

There is no doubt that it is vital that if the Attorney is guilty of serious misconduct it must be possible to immediately remove him. This is true of every public officer. Not only is this issue covered by the Leadership Code contained in Chapter VIII of the Constitution and the legislation made pursuant to s95 directed to attaining the objects of the Code, but the misconduct of public servants is the subject of rules made under the Public Service Act. At all events the PSC has a Constitutional power of removal. It is not necessary to give the Prime Minister the power to advise removal in order to ensure that misconduct will be appropriately dealt with.

The term of office of the Attorney

The appointment of Mr Afeau as Attorney was not for any specified term. Even assuming that it was for an indefinite period, that did not give the power to remove him to the JLSC on the advice of the Prime Minister. The term of an Attorney's appointment may be fixed by relevant statutory enactment or as provided in the instrument of appointment. Even if he is appointed - in the circumstances - at will, the relevant will is that of the PSC by virtue of its powers under s116. That provision removed, in respect of the Attorney - as with all the public officers except those specifically excluded - the prerogative powers of the Crown (insofar as they may have existed or it would have been necessary to imply them) in relation to appointees to public officers. The notion of appointment "at pleasure" of public officers as some residual power residing in the Government reflecting the prerogative is, to my mind, excluded by the express systematic and comprehensive coverage in the Constitution of the powers of appointment and removal of all public officers.

Regulations were promulgated in 2006 under the Constitutional Offices (Terms and Conditions of Service) Act, effective from 1 January 2006, applicable to Attorney. Clause 2 of the regulation provides that the "term of office of the Attorney General shall be permanent unless otherwise specified in a contract of employment." I understand that the term "permanent" is used as opposed to "casual" and is a term of art applicable to public servants referable to their conditions of employment and, I rather gather, the mode by which their employment may be terminated. It reflects the view that that the Attorney is considered to be a public servant, much like a Permanent Secretary. Apart from the regulation being brought to the Court's attention, no substantive argument was directed to its applicability and a view as to its true meaning need not be formed. Neither it not its authorising statute can affect Constitutional rights and powers, at all events. Accordingly, the regulation is not material to the question we have to answer.

Conclusion

In my opinion the Questions referred should be answered as follows -

2. Does Section 42(2) of the Constitution empower, expressly or impliedly, the Judicial and Legal Service Commission to revoke the appointment of the Plaintiff as Attorney General? Answer: No.

3. Does not call for answer.

4. If the answer to Question 2 is no, what mechanism, if any, exists for the revocation of the appointment of the Attorney General? Answer: s116 of the Constitution.

Lord Slynn of Hadley President and the Hon. Justice P.R. Salmon

The Court by a majority finds that the Commission of Judicial and Legal Services was entitled to find in this case that the Prime Minister could validly advise the Commission to remove the Attorney General from that officer and that the Commission was required to follow that advice.