Rojumana v Reginam [2009] SBCA 9; CA-CRAC 15 of 2008 (26 March 2009)

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Nature of Jurisdiction:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J)
Court File Number:	Criminal Appeal No 15 of 2008 (On Appeal from High Court Criminal Case No 413 of 2006)
Date of Hearing:	18 March 2009
Date of Judgment:	26 March 2009
The Court:	Goldsbrough P, Williams JA and Hansen JA.
Parties:	Rojumana & Maetia Appellants -v- Reginam Respondent
Advocates: Appellants: Respondent:	N. Manning R .Christensen
Key Words:	Persons employed in the public service. Zama v Reginam wrongly decided.
Ex-tempore / reserved:	Reserved
Allowed / Dismissed:	Dismissed
Pages:	1 - 6

In October 2004 the appellant John Maetia was arrested and charged with offences under section 91(a) of the Penal Code and in January 2005 the appellant Clement Rojumana was arrested and charged under the same legislative provision.

Clement Rojumana at the time the allegations arose was Minister of Home Affairs. John Maetia was Chairman of the Citizenship Commission. The former had been appointed Minister by the Governor General and the latter appointed Chairman by the Minister Rojumana.

The essence of the allegations is that, between January and September 2003, citizenship was granted to 25 persons not entitled, as evidenced by certificates issued and signed by either both or one of the appellants. On receipt of payments, totaling in the case of John Maetia $108,450, citizenship was granted other than in accordance with the relevant provisions.

This appeal concerns the order committing the two appellants for trial. That order was made by a magistrate on finding a prima facie case against the appellants, which order was appealed to the High Court. In the High Court the appeal against the committal order was dismissed, and hence this appeal against the decision of the High Court.

There is no doubt, and it is conceded, that an appeal lies to this court in those circumstances.

The offences charged fall under section 91 of the Penal Code [Cap 26] which provides in PART X - CORRUPTION AND THE ABUSE OF OFFICE

(a) being employed in the public service, and being charged with the performance of any duty by virtue of such employment, corruptly asks for, solicits, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office; or

(b) corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure, or attempt to procure, to, upon, or for any person employed in the public service, or to, upon, or for any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed, is guilty of a felony and shall be liable to imprisonment for seven years.

Both in the Magistrates’ Court and the High Court, proceedings were focused on the meaning to be attributed to the definition found in section 4 of Cap 26 of "person employed in the public service". Little, if anything, else is in issue within these proceedings.

"person employed in the public service" means any person holding any of the following offices or performing the duty thereof, whether as a deputy or otherwise, namely—

(i) any office to which a person is appointed or nominated by Act or by election; or

(ii) any civil office, the power of appointing to which or removing from which is vested in any person or persons holding an office of any kind included in either of the two last preceding paragraphs of this section; or

(iii) any office of arbitrator or umpire in any proceeding or matter submitted to arbitration by order or with the sanction of any court, or in pursuance of any Act;

(ii) a member of a commission of inquiry appointed under or in pursuance of any Act;

after an amendment effected at the time of independence by Legal Notice 46A of 1978. Prior to amendment subsection (i) brought the High Commissioner and anyone appointed by Her Majesty or the High Commissioner to any civil office into the terms of the definition.

The amendment was made under legislation which permitted amendment of laws taking account of changes necessary to provide for independence. It was not an amendment made by Parliament after debate. Therefore it is difficult to speculate as to legislative intentions, save to say that the amendments were only authorised to the extent that they were necessary to conform with post-independence Solomon Islands laws. The removal of the previous subsection (i) also explains the defective reference in the present (ii) to ‘two last preceding paragraphs’.

Submissions from both the appellant and the respondent in this court are premised on the assumption that, in the definition, ‘appointed or nominated’ are both qualified by the following ‘by Act or by election’. This is further reflected in submissions before the Magistrates’ Court and the High Court. Resulting from that assumption it became necessary to consider whether the Constitution (by or under which many appointments are made) is an Act for the purposes of the definition and whether ‘by Act’ included appointments made under an Act rather than by the Act itself.

It is not clear why the assumption referred to above was made. There is an interpretation of the definition available, so it seems to this court, wherein appointed is not so qualified, whilst nominated remains so.

Since this alternate interpretation does not appear in submissions, it was put to counsel at this hearing so that they might address the court on it. To do otherwise would not have been, in our view, fair to the parties.

Consideration of the assumed interpretation, where both appointed and nominated are qualified, demonstrates to this court that it is incorrect. We come to this conclusion for several reasons which reasons can be conveniently summarised as follows.

The rules of statutory interpretation are many and varied, but the starting point must always be to attribute words their plain and obvious meaning. Only in cases where the meaning is not perfectly clear is there a need to resort to other than a literal rule. It is therefore clear that to consider that there are, for example, three routes to bring a person within the definition, that is to say appointment, nomination or election would be wrong. That would be wrong because it would require the inclusion of the verb ‘to elect’ in the past tense, rather than as appears ‘by election’. ‘By Act or by election’ then must relate back to something, and that must be either ‘appointed’, ‘nominated’ or both.

To require that ‘by Act or election’ relate back to both ‘appointed’ and ‘nominated’, which appears to be the assumption on which submissions were originally premised, itself brings into play a vast array of arguments that are not necessary to consider when only ‘nominated’ is to be related back.

Further that particular interpretation does not work. There are no examples provided by counsel, and we are not aware of any, where a person is appointed by election. Members of Parliament are elected and the person with the highest number of votes cast is declared to be the Member of Parliament for that constituency. The Prime Minister is elected by members of Parliament, and then declared to have been elected by the Governor General. Appointment by Act can be readily envisaged, but this will, in our view, be quite rare given that few Acts of Parliament will provide for an individual, rather than an office holder, to be appointed. For that reason, that it is to be the person, not the office holder, appointed, we are of the view that ex officio appointments are to be more correctly described as nominations by Act. Ex officio is not personal but belongs to the holder of the office described, and most frequently does not thereafter require any further appointment. For example, whosoever is the holder of the office of Chief Justice is ex officio the Chairman of the Judicial and Legal Service Commission. He is not further appointed to that office.

The interpretation applied to this provision by the appellants, counsel for the appellants concedes, would include the Prime Minister and all Members of Parliament acting as such but would exclude Ministers. This would be an unusual situation, in our view. It also gives lie to the intent, contended by the appellants, of the amendment in 1978 to reflect that the constitutional provisions relating to leadership would replace the need for categories of people previously included in this definition to remain therein. If that intent were correctly assumed, all, and not only some, of those caught by the Leadership provisions would have been excluded.

In addition to following the literal meaning of the words used in the definition, the interpretation as set out in paragraph 11 above, where appointed is not qualified, complies with both the mischief and the purposive rules of interpretation. It does not result in absurdity, nor does it require the meaning of words or phrases to be strained to achieve what may have been the intention of the legislature. It also benefits from being a contextual interpretation.

As can be seen from submissions, the interpretation sought to be applied by counsel in their submissions required consideration of whether the Constitution of Solomon Islands, itself contained in a Schedule to an Order in Council made by Her Majesty in Council under the authority of the Foreign Jurisdiction Act, is to be regarded as an Act. Constitutional scholars tend to suggest that a Constitution is more than an Act and it has been said that this Constitution is not an Act.[1]

This exercise in statutory and constitutional interpretation does not arise to be considered when the plain and ordinary meaning of the definition is adopted. In the High Court the learned judge determined that the Constitution is an Act for the purposes of this definition. We express no view on that decision, save to say that we consider it a question that it was not necessary to answer. It may well be that for the purposes of this definition the Constitution could be considered to be an Act. We are not entitled to consider that further given that the question no longer arises.

In response to the interpretation put to counsel during the hearing, and in particular which rule of statutory interpretation may be offended by that interpretation, it was submitted that a comma would be expected to appear after ‘appointed’ and before ‘or’ for that interpretation to be correct. We do not accept that submission. Appointed and nominated are alternates. They are of equal value and not intended to be interchangeable. ‘Appointed’ requires no qualifier, ‘nominated’, in these circumstances, does so require. A nomination remains incomplete without further process, such as an election or an Act authorizing acceptance of the nomination. An appointment is complete on it occurring.

This same definition was previously considered in the High Court in Zama v Reginam [2007] SBHC 113. In that appeal from the magistrates’ court the Crown, it is now conceded, made an improper concession with regard to the definition. Given the interpretation adopted by this court, it is clear that the Zama case was incorrectly decided and should not be followed.

Given the agreed facts upon which a committal for trial was ordered, together with our interpretation of the definition that the two appellants variously fall within the definition of persons employed in the Public Service, this appeal must fail. The order for committal made by the magistrate and upheld on appeal in the High Court remains in force. A trial should take place, and given the time that has elapsed since arrest and charge we are of the view that any future trial should be listed with a degree of priority. This appeal is dismissed.

^[1] Afeau v Judicial and Legal Services Commission and Attorney General [2007] SBCA 19

Court of Appeal of Solomon Islands

Rojumana v Reginam [2009] SBCA 9; CA-CRAC 15 of 2008 (26 March 2009)