Paia v Soakai [1980] SBHC 7; [1980-1981] SILR 86 (10 October 1980)

[1980-1981] SILR 86

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 52 of 1980

PAIA

-v-

SOAKAI

High Court of-Solomon Islands
(Daly C J)
Civil Case No. 52 of 1980

10th October 1980

Election petition - Section 82 (3) of the National Parliament Electoral Provisions Act - whether Respondent qualified to be elected a member of National Parliament - section 48(a) of the Constitution. Whether Respondent is a citizen of Solomon Islands.

Facts:

The Petitioner was a candidate in the general election held on August 6 1980 for the Vona Vona/Rendova and Tetepari Electoral Constituency in the Western Province. The Respondent was the winner in that constituency. The petition was based on an allegation that the Respondent was not qualified under section 48{a) of the Constitution. The Respondent said that he was born in 1942 in the Western Province. His mother was Ellen Soakai the daughter of an Englishman, Norman Wheatley, and Sabe Vido, a Solomon Islander. The Petitioner alleged that Ellen Soakai took the Respondent to Tonga (Respondent's father, Mr Soakai, was from Tonga) and that from 1968 to 1978 the Respondent was in possession of a Tongan Passport and that the possession of such passport constituted in some way a removal of the status of a "British protected person" which is one of the requirements for citizenship of Solomon Islands.

Held:

1. That Article 6 of the British Protectorates, Protected States and Protected Persons Order 1974 expressly refers to connections with Solomon Islands and that the only disqualification is contained in paragraph (3) and (4) of that Article which relates to enemy aliens and persons born after January 1 1975.

2. That the Respondent still has connection with Solomon Islands and became a citizen of Solomon Islands on Independence Day by virtue of his mother, Ellen Soakai and Sabe Vido, and by virtue of section 20 (1) (a) as read with section 26 (1) of the Constitution and Article 6 of the British Protectorates, Protected States and Protected Persons Order 1974.

3. That the Respondent was, therefore, qualified for election under section 48(a) of the Constitution.

4. That the Respondent was duly returned as member of National Parliament for Vona Vona/Rendova and Tetepari Electoral Constituency.

5. That the Petition is dismissed.

For the Petitioner: J. Kochowiec
The Respondent: in person

Reported by: J. Apariai

Daly CJ: This is an election Petition by Dr. Patrick PAIA (the Petitioner) who petitions against the declaration of Mr Hughie SOAKAI (the Respondent) as the member of the National Parliament for the Vona Vona/Rendova and Tetepari Electoral Constituency in the General Election held on 6^th August, 1980. The Returning Officer was also made a Respondent to the Petition but as no criticisms have in fact been addressed to his conduct in the court hearing he has played little part in the proceedings.

The basis of the Petition is that the Respondent was not qualified for election as required by section 48 (a) of the Constitution which provides:-

"Subject to the provisions of the next following section, a person shall be qualified for election as a Member of Parliament if, and shall not be so qualified unless -

(a) he is a citizen of Solomon Islands."

An attempt was made to enlarge the grounds by a claim that the Respondent was also or in the alternative, disqualified under section 49 (1) (a) of the Constitution. Leave to amend to make what was a new allegation was refused. The hearing therefore proceeded on the basis set out in the Petition which gives rise to only one issue, has the Petitioner satisfied the court that Hughie SOAKAI was not a citizen of the Solomon Islands when he was elected to the National Parliament?

I have heard no argument on the question of the vital date when qualification should be assessed and the case has been left on the basis that the Respondent was either qualified throughout the election procedure or disqualified.

The argument for the Petitioner revolves around the Respondent’s connections with TONGA. The case for the Petitioner is that, whatever those connections, he became a Solomon Islands citizen automatically on Independence Day, that is 7th July, 1978 and has so remained since that date. The Respondent relies upon section 20 (1) (a) of the Constitution which reads:-

"Every person who is immediately before Independence Day an indigenous Solomon Islander shall become a citizen of Solomon Islands on Independence Day."

This must be read with section 26 (1) of the Constitution:-

"In this Chapter -

"British protected person" means a person who is a British protected person for the purposes of the British Nationality Act 1948;

"indigenous Solomon Islander" means any person who is, or one of whose parents is or was, a British protected person and of a group, tribe or line indigenous to Solomon Islands."

There are therefore two ways in which a person can be established to be "indigenous Solomon Islander" and therefore an automatic citizen -

(a) by establishing that immediately before 7th July, 1978 that person was -

(i) a British protected person; and

(ii) of a group, tribe or line indigenous to Solomon Islands; or

(b) by establishing that one parent of the person is or was:-

(i) a British protected person; and

(ii) of a group, tribe or line indigenous to Solomon Islands. (This possession of protected person status must have obviously been earlier that Independence Day but whether the ‘was’ would allow for a parent who earlier had been a British protected person but had lost such status other than by death is not clear. For present purposes I shall take it that, with a living parent, the status must obtain immediately before Independence Day).

The Respondent claims to be qualified for Solomon Islands citizenship by both (a) and (b). As to (b) his claim is made through his mother Ellen Soakai.

The facts are not in dispute. The Respondent was born on 2nd October, 1942 in the bush in Western Province during the Japanese Invasion. His mother was Ellen Soakai who was married to a Tongan, E. Paipa Soakai. Mrs Soakai was the daughter of an Englishman Norman Wheatley and SABE VIDO, a Solomon Islander. The evidence in this case, is not in dispute that, by virtue of the connection with SABE VIDO both Mrs Soakai and the Respondent are of a group, tribe or line indigenous to Solomon Islands. In Roviana custom they are part of a line going back many generations and it is clear that the fact that they both have what has been described as ‘mixed blood’ has absolutely no effect on their membership of the line. As I have said, the evidence is all one way on this aspect of the case and, indeed, accepted by the Petitioner himself.

The only question therefore arising is was either the Respondent or his mother ‘a British protected person’ immediately before the 7th July, 1978.

The meaning to be given to those words is contained in the British Nationality Act, 1948. S. 32 (1) of that Act reads:-

"British protected person" means a person who is a member of a class of persons declared by Order in Council made in relation to any protectorate, protected state, mandated territory or trust territory to be for the purposes of this Act British protected persons by virtue of their connection with that protectorate, state or territory."

It is therefore necessary to find the relevant Order in Council applicable on 7th July, 1978. This is the British Protectorates, Protected States and Protected Persons Order 1974 S.I. 1974 No. 1895.

Article 6 of that Order provides as follows:-

"British Solomon Islands Protectorate

6. (1) The British Solomon Islands Protectorate (hereinafter referred to as "the Protectorate") is hereby declared to be a protectorate for the purposes of the Act.

(2) Subject to the provisions of paragraph (3) and (4), a person shall be a British protected person by virtue of his connection with the Protectorate -

(a) if he was born (whether before or after the commencement of this Order) in the Protectorate; or

(b) in the case of a person born elsewhere than in the Protectorate before 28 January 1949, if his father was born in the Protectorate and was a British protected person at the time of that person’s birth.

(3) A person who was an enemy alien on 28 January 1949 shall not be a British protected person under this Article unless the authority specified in Article 17 of this Order, on application made to him by that person, so orders.

(4) A person born after the commencement of this Order shall not become a British protected person by virtue of his connection with the Protectorate unless he would otherwise be stateless."

This British protected person status would only be lost by virtue of renunciation under Article 16. A declaration of such renunciation had to be made to the Governor of Solomon Islands (see Art. 17 (a)). It is not suggested that any such renunciation took place in the case of the Respondent or his mother.

The facts of this case are that the Respondent and his mother were both born in Solomon Islands. Subsequently Mrs Soakai took the Respondent to Tonga for his education for an unspecified period. For the period of 9th February, 1968 to 9th February, 1978 the Respondent was in possession of, and used a Tongan passport. Mrs Soakai, too, was in possession of such a passport but she found it unnecessary to use it on travel to Solomon Islands.

The case for the Petitioner was that possession of these passports constituted in some way a removal of the status of a British protected person as defined in the 1974 Order. It will be observed that Article 6 expressly refers to connection with the Solomon Islands Protectorate and the only disqualification is contained in para. (3) and (4) one of which relates to enemy aliens; the other only to persons born after 1st January, 1975.

In my judgment, it cannot be argued that being a subject of the King of Tonga, if either the Respondent or his mother were such subjects, prevented them from being British protected persons by virtue of Article 6 of the 1974 Order. Counsel argued that loss of British protected person status in connection with Tonga would have that effect. The answer to that point is short. British protected person status in connection with Tonga was lost in 1970 when Tonga became independent. British protected person status in connection with Solomon Islands was reaffirmed in 1974 without any reference whatsoever to loss of status in connection with any other territory. One must look at the Order applicable in July 1978. Whatever the claims that the Respondent or his mother might or might not have had in relation to Tonga are not in any way mentioned in that Order. They are therefore irrelevant to a consideration of whether the Respondent or his mother immediately before 7th July, 1978 was "a person who is a British protected person for the purposes of the British Nationality Act."

In parenthesis perhaps I should add that it is quite possible that the earlier orders gave the Respondent two entirely separate claims to be a British protected person, one in connection with Solomon Islands by virtue of his birth, the second in connection with Tonga by virtue of his father’s birth there. It does not seem to me that loss of one would inevitably result in loss of the other. However, in view of the clear terms of the 1974 Order it is not necessary for me to say more on this point.

I should observe that any overt connection with Tonga on the part of the Respondent ceased before 7th July, 1978. The connection of his mother with Tonga was even more tenuous and I find that that too ceased before Independence Day. No point is taken on section 23 of the Constitution.

In all the circumstances I find on the issue in this case that the Respondent was by virtue of his birth in Solomon Islands a British protected person immediately before 7th July, 1978 for the purpose of the British Nationality Act 1948. I make a similar finding in relation to Mrs Soakai. As there is no dispute as to the fact that both the Respondent and Mrs Soakai are ‘of a group, tribe or line indigenous to Solomon Islands’ it follows that the Respondent was immediately before Independence Day an indigenous Solomon Islander in his own right and through one parent, namely his mother.

The Respondent therefore became a citizen of Solomon Islands on Independence Day by operation of section 20(1) (a) of the Constitution and it was unnecessary for him to take any steps to apply for citizenship.

I find therefore that Hughie SOAKAI was qualified to be elected a member of the National Parliament under section 48 (a) of the Constitution and determine that he was duly returned as member of the National Parliament for the Vona Vona /Rendova and Tetepari Electoral Constituency.

I shall so certify to His Excellency the Governor-General.

This Petition is dismissed.