R v Faulkner (No 1) [1983] SBHC 12; [1983] SILR 273 (5 December 1983)

[1983] SILR 273

IN THE CENTRAL MAGISTRATES' COURT

Criminal Case No. 1458 of 1983

R

-v-

FAULKNER (NO. 1)

Central Magistrates' Court
(Parker C.M.)
Criminal Case No. 1458 of 1983

5th December 1983

Immigration - husband of female Solomon Island citizen - need for permit - section 7(1)(a) Immigration Act 1978 - discrimination - Constitution section 15 - Interpretation Act section 10 - meaning of 'his'.

Facts:

F. was charged with being 'unlawfully present in Solomon Islands' under section 18(1)(i) of the Immigration Act 1978. F. was married in 1972 to a female Solomon Island citizen. He claimed that section 7(1) (a) of the Immigration Act gave him exemption from the need for a permit to reside as he was in the "family" of a Solomon Island citizen.

Held:

The words "any citizen of Solomon Islands and his family" in section 7(1)(a) Immigration Act must be construed by virtue of section 10(a) of the Interpretation Act also as including "any citizen of Solomon Islands and her family". Any other construction would be discriminatory and contrary to section 15(1) and (2) of the Constitution. F acquitted.

For Prosecution: J. Apaniai
For Accused: K. Brown

Parker CM: In this case Frank Faulkner is charged under S. 18(1)(i) of the Immigration Act with 'being unlawfully present' in Solomon Islands on 26th March 1983.

It is conceded by his Counsel that he did not have a permit to enter and reside valid on 26th March 1983 but it is contended that he is not unlawfully present.

I was referred to S. 15(1) and (2) of the Constitution which provides that no law shall make any provision that is discriminatory either in itself or in its effect and that no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or public authority.

Mr Faulkner married a Solomon Islands lady JOSEPHINE GIBETOR in Auki in 1972 and he has thus been married to a Solomon Islands citizen since long before the 1978 Act ever came into force.

Under S. 7(1) of the Immigration Act 1978 under para (a) any citizen of the Solomon Islands and his family under the age of 18 years is entitled to enter and reside in Solomon Islands without a permit. It seems to me that "his" can be readily supplanted by "her" because of the effect of S. 10. (a) of the Interpretation and General Provisions Act which means that "his includes "her"" so "her can be transposed for "his"".

To not afford male spouses the same protection as female spouse would be an absurd result and it would clearly have the effect of in this case of discriminating against Mrs Faulkner as a Solomon Islands citizen.

I cannot accept that the word 'citizen' is restricted to male citizen. That would be also absurd.

I construe the matters before me as indicated in such a way so as to entitle Frank Faulkner to stay in Solomon Islands without a permit to reside. I therefore, find that, on the 26th March 1983, Frank Faulkner was not unlawfully present but was entitled to be present in Solomon Islands. I, therefore, find him not guilty of the charge against him.