In Re Application By Minister for Western Provincial Affairs [1983] SBHC 27; [1983] SILR 141 (7 June 1983)

[1983] SILR 141

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 47 of 1983

IN RE APPLICATION BY THE MINISTER FOR WESTERN PROVINCIAL AFFAIRS

High Court of Solomon Islands
(Daly C.J.)

Civil Case No. 47 of 198j
7th June 1983

Interpretation of statutes - principles of - section 22(2) Provincial Government Act, 1981.

Facts:

A dispute arose between the Applicant Minister and Western Province about the interpretation of section 22(2) of the Provincial Government Act, 1981 in which provides:

“The Premier shall be chosen by election of an absolute majority of the elected members at a meeting of the Provincial Assembly at which all the elected members are present.”

The province contended that absence of one or more members at the meeting was not fatal to the election. The Minister brought a summons seeking for an interpretation of the subsection.

Held:

The words of the subsection were clear. Although there were impracticability’s there were no inconsistencies or absurdities following from a literal interpretation. Therefore it was not necessary to apply any of the so called principles of construction. The words required that, at a meeting to elect the premier, all elected members must be present. There was no unexpressed exception to be read into the subsection.

per curiam: Care should be given in describing principles of construction by labels as to do so obscured the fact that they were ways courts used to solve difficulties in interpretation rather than established ‘approaches’. The only proper approach was to establish the meaning of the words so that the object of the law makers is, so far as the words permit, loyally carried into effect.

Cases considered:

Magor & St. Mellons R.D.C. -v- Newport Corporation (1951) 2 All E.R. 839
I.R.C -v- Hinchy (1960) A.C. 748
Kammins Co -v- Zenith Investments (1970) 3 W.L.R. 287
Plar No. 1 of 1980 (1980) P.N.G.L.R. 326
Nothan -v- Barnet London Borough Council (1978) 1 W.L.R. 226

For Minister: F. Kabui Attorney-General
For Province: P. Fordyce

Daly CJ: A difference of opinion has arisen between the legal advisers to the Honourable Minister for Western Provincial Affairs and the Western Province and the Minister has brought these proceedings for this court to resolve the issue so that he may properly fulfil his functions under the Provincial Government Act, 1981 (‘the Act’). The issue is a matter of considerable importance as it concerns the procedure for the election of the Premier of a Province for the purposes of the Act and hence the process by which a Province gains its executive authority, the Provincial Executive.

The difference arises on the interpretation of section 22(2) of the Act. This provides: -

“The Premier shall be chosen by election of an absolute majority of the elected members at a meeting of the Provincial Assembly at which all the elected members are present.”

The Honourable Minister has been advised that these words mean that unless all the elected members are present at a meeting no valid election of a Premier can take place at that meeting. Western Province has on the other hand, been advised that the absence of an elected member or members at a meeting is not fatal to the election of a Premier at that meeting. So this case turns on the meaning to be given to the words “at a meeting ... at which all the elected members are present”. I should emphasize that this case has been dealt with in this court entirely as a matter of law and no order is sought as to any particular election.

Counsel for the Minister puts his case foursquare on it, the literal and natural meaning of those words. He says that here is no ambiguity whatsoever in them and therefore this court has no option but to hold that all the elected members must be present at the meeting at which the Premier is elected. It is further submitted that the history of this legislation indicates that Parliament deliberately chose those words and therefore one need go no further in ascertaining the intention of Parliament. The intent is, says counsel, expressed in the words themselves. What happened was that a White Paper was produced in 1979 which made recommendations as to Provincial Government in Solomon Islands. Subsequently a number of persons were appointed to study the ways of implementing those recommendations. These persons in November 1980 produced a draft Provincial Government Bill 1980. In Clause 21 of that Bill one finds the following sub-clause (2): -

“The Premier shall be chosen by election of the majority of the elected members present and voting at a meeting of the Provincial Assembly at which the elected members present number not less than two-thirds of the total number of elected members of the Assembly (including any whose seat is vacant)”

Counsel for the Western Province sought to argue that there was a mere omission of words in the difference between this draft bill and the Act but it will be seen that there is not only omission of words but the insertion of the crucial word “all”. If nothing more, this is, in my view, an indication that the words of section 22(2) of the Act were deliberately chosen in preference to the original draft.

Counsel for the Western Province accepted that, if the words were given their literal meaning, she would be in considerable difficulties. She sought however to dissuade the court from giving the words their literal meaning. She grouped her arguments, attractively, under four headings. The first was that the literal meaning would result inconsistencies in the Act and absurdities in the implementation of the Act. She took me through a number of provisions to demonstrate this thesis. If I may, without disrespect, suggest, the argument amounted to the proposition that giving these words their literal meaning might result in a situation where the election of the Premier was delayed or even made impossible by the failure of a member to attend meetings. This may be so and may (should it happen) result, in a defect being revealed in the structure of the Act. The simple question is, has this court power to remedy that defect on interpretation of the words used? The answer to such a suggestion is contained in the words of Lord Simonds in Magor & St. Mellons R.D.C. v. Newport Corporation (1951) 2 All E.R. 839 at p. 841 where he said concerning a proposal that the court should close a gap in an Act:-

“It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation. And it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it. If the gap is discovered, the remedy lies in an amending Act.”

In view of what I say later in this judgment, I should observe that this passage is in the course of criticism of a rather wider view of the functions of the court on interpretation of statutes taken by Denning L.J. (as he then was). I accept that there may in certain circumstances be practical difficulties in implementing the terms of section 22(2) of the Act. However in my judgment, this is not a case in which it has been established that there are inconsistencies and absurdities which flow from giving a literal meaning to the subsection in question. Impracticabilities there may be but, as Lord Simonds says, “the remedy lies in an amending Act”.

The second group or submissions is that a “purposive” approach rather than a literal one should be adopted to the interpretation of section 22(2). In other words I am asked to seek out the purpose of Parliament and apply what I think that purpose may be and thereafter to give the words of the subsection a different meaning from their literal meaning. But where does one start on this search other than with the words themselves?

As Lord Reid said in I.R.C. v. Hinchy (1960) A.C. 748 at p. 767:-

“But we can only take the intention of Parliament from the words which they have used in the Act, and therefore the question is whether these words are capable of a more limited construction. If not, then we must apply them as they stand, however unreasonable or unjust the consequences, and however strongly we may suspect that this was not the real intention of Parliament.”

I should perhaps observe that in this case I do not suspect that the literal meaning of the words of section 22(2) does not embody the “real intention” of Parliament.

Miss Fordyce in this part of her submissions relies upon a passage in the judgment of Lord Diplock in Kammins Co. v. Zenith Investments (1970) 2 W.L.R. 287. In considering that passage regard must be had to the facts of that case. Under section 24 of the Landlord and Tenant Act, 1954 an application may be made to a court for a new tenancy of business premises. However by section 29(3), no such application “shall be entertained unless it is made” within a stated period. What happened was that an application was made too early before that period commenced but both parties proceeded for some time on the basis that the application was in order. Finally, at a time when it was no longer possible to make a proper application, objection was taken to the application on the ground that it was made outside the correct period specified by section 29(3). Lord Reid said at page 290 and 291:-

“This maybe a technical and unmeritorious defence, but there is no doubt that the court has no power to dispense with these time limits if the Defendant chooses to object at the proper time. The question is whether the Defendant is entitled to agree not to insist on the observance of those time limits. The case for the respondents is simple: they say that the provisions of section 29 prohibit the court from entertaining any application made out of time even if both parties ask the court to deal with it.

If the words of an Act are so inflexible that they are incapable in any context of having any but one meaning, then the court must apply that meaning, no matter how unreasonable the result it cannot insert other words. But such cases are rare because the English language is a flexible instrument.

Before examining the words in question I must observe that, apart from a case where contracting out is clearly not permitted, no case was cited in which statutory time limits of this kind have been so interpreted and for reasons which I shall give in a moment I think that it would be quite unreasonable so to interpret these words in this context.

The words are that no application “shall be entertained” unless it is made within the prescribed period. This cannot in my view be read literally. It must mean entertained by the court and the natural meaning of entertained in this connection is taken into consideration. But the court must take the application into consideration before it can discover whether or not it is out of time. Often this may seem clear at a glance but even so the applicant is entitled to be heard. And there may be a substantial point to decide. For example the date of the tenant’s request may be questioned, or some more complicated point may arise like the point in Hodgson v. Armstrong (1967) 2 Q.B. 299. Such an expression as the “court shall make no order” may be clear and inflexible but this expression is not. Once it appears that some modification of the natural meaning is necessary, why should we be bound to stop there when our object is, as it always must be, to find out what Parliament must have, or must be supposed to have, intended.”

Thus it was found by Lord Reid that the words in question were “flexible” enough to provide a meaning other than their natural or literal meaning and the court was required to seek out the intent of Parliament to decide which actual meaning to choose.

Lord Morris of Borth-y-Gest put greater reliance on a strict construction of words intended to restrict the powers of the Court. Viscount Dilhorne, in a dissenting judgment found that he must give the words their ordinary and natural meaning. Lord Pearson found that “the requirements of section 29(3) are only procedural” (at p. 307).

I turn now to the speech of Lord Diplock on which counsel relies. The vital passage in that speech is at p. 310A where the learned Law Lord analyzes the language of the section in the following passage:

“Upon the literal approach, semantics and the rules of syntax alone could never justify the conclusion that the words “No application... shall be entertained unless” meant that some applications should be entered I entertained notwithstanding that neither of the conditions which follow the word “unless” was fulfilled. It is not the meaning of “entertained” that makes this conclusion impossible. It would be equally impossible what ever verb in the passive voice were substituted. It can be justified only upon the assumption that the draftsman of the Act omitted to state in any words he used in the subsection an exception to the absolute prohibition to which Parliament must have intended it to be subject.

A conclusion that an exception was intended by parliament and what that exception was can only be reached by using the purposive approach.”

Later at page 311E after dealing with various questions the learned law Lord says:-

“Upon the purposive approach to statutory construction this is the reason why in a statute of this character a procedural requirement imposed for the benefit or protection of one party alone is construed as subject to the implied exception that it can be “waived” by the party for whose benefit it is imposed even though the statute states the requirement in unqualified and unequivocal words”.

Thus Lord Diplock was applying the purposive approach to a particular type of procedural requirement imposed for the benefit of one party.

To summarize Lord Reid found that the words used in section 29(3) were, in effect, ambiguous: Lord Diplock found that they were not ambiguous, but on a “purposive” reading embodied an exception: Lord Morris that the meaning should be restrictively interpreted: Lord Pearson that they embodied only procedural requirements; and Viscount Dilhorne that the words had a clear natural meaning. Whatever view is taken of the authority of a case containing such varying views what seems to me to emerge that the learned law Lords in the majority all required some substantial basis for coming to the conclusion that the words used in section 29(3) gave them scope for doing what they considered to be justice in a difficult case. Whether, a substantial basis was constructed and if so by whom is not a matter upon which I would choose to comment. Lord Diplock also stated that the approaches adopted by Lords Reid, Morris and Pearson were all of a “literal” nature (See pages 311 and 312). If he is right it follows that, of the House of Lords, four law lords adopted a ‘literal’ approach and Lord Diplock alone adopted a “purposive” approach.

The danger in relying exclusively on the words of Lord Diplock concerning a purposive approach is that he gives a label to what is, in effect, an amalgam of the views expressed in various cases of the need to observe the “object” of the Act or the “intention” of the Legislature. As I say later in this
Judgment such handy labels are sometimes apt to be seen not just as a shorthand way of describing a whole process but as, description of a much shorter and less satisfactory process; indeed of no process at all unless guesswork can be said to embody a process. The “purposive approach” does not mean the words are rejected; it means that read in their context they must be given a certain meaning because the draftsman has omitted something in Kammin’s Case (ab. cit.) an exception which becomes inevitable in the case of a procedural requirement imposed for the benefit of one party, which Parliament must by implication be taken to have included in the provision. I should add perhaps that, with all respect, I do not think that the basis constructed by Lord Diplock is the most convincing nor do I think that anything is added to it by stating that its construction is based on a “purposive approach”.

The danger to which I refer is aptly demonstrated in certain passages in Plar No.1 of 1980 (1980) PNGLR 326 in the judgment of Wilson J at pages 331 and 335 to which I am referred. In that case the Supreme Court of Papua New Guinea were asked to rule whether a decision in the High Court of Australia on the applicability of the defence of provocation in criminal cases should be followed. In the course of his judgment Wilson J. drew a distinction between what he called a “a literal method” of construction which was “out of date” and the “fair and liberal meaning” rule or “purposive” rule. He relied upon a passage in a judgment of Lord Denning in Nothan v. Barnet London Borough Council (1978) 1 W.L.R. 226 at page 228. In that passage Lord Denning stated:-

“The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as the ‘purposive approach’. He said so in (Kammin’s Case ab. cit.).”

Whether that is what Lord Diplock said is open to question: one wonders, for example, if clear, unequivocal words in a provision without the special features which were present in section 29(3) of the Landlord and Tenant Act, 1954 would require, or benefit from, the application of the “purposive approach”. The latter maybe an aide to construction; it is certainly, in my judgment, not the beginning and end of construction. I also find, with great respect to the then Master of the Rolls and Wilson J., that this direct contrast between the two suggested approaches or methods is an oversimplification of the position on the authorities. One should perhaps note that in the Nothan Case (ab. cited) Lawton L.J. followed what he regarded as “the usual canons of construction” (p. 230) in contra distinction to the approach adopted by Lord Denning. Lawton L.J., at least, considered that there had been no replacement of one approach by another.

I return to the point from which I started out. That is, that the only proper approach to any problem of construction is first to read the words used in their context. If the words have a natural and ordinary meaning then the words should be given that meaning. If that is to be called a “literal approach” I do not consider it to be outdated; the function of a court in any case of interpretation is to decide the meaning of words. The intent and purpose of the legislature is expressed in those words. What other “approach” can there be but “literal”? There may be scope where the words do not have a natural and ordinary meaning or where the words are ambiguous or where the natural and ordinary meaning reveals that something has been omitted (pace Lord Diplock) for a court to apply one or other of what have been called “rules of construction”. But the starting point is always the words themselves and these “rules of construction” are merely common sense and judicial experience (if there is any distinction) applied to the task of giving a meaning to words where the draftsman has, in the view of a court, failed adequately to convey a natural and ordinary meaning that is consistent with the context in which the words are used.

For a court to wander in a twilight world of purposes and intentions whilst disregarding or avoiding the clear meaning of the words used is to introduce an element or capriciousness in the application of statute laws which I, for my part, would be most loath to introduce into Solomon Islands. Even the thought of taking such a journey in this esteemed company of such eminent jurists as Lord Diplock and Lord Denning does not tempt me to abandon what I consider to be the pursuit of consistency.

I am also asked to consider another approach to section 22(2). That is the “directional approach”. The basis of this approach is, it is submitted by counsel that if the result of a literal approach is inconvenient or absurd then the provision should be regarded as “directionary”. In other words that the provision is a direction to take such and such a course but that failure to take the course does not affect the validity of the acts done. Again I look first at the words of section 22(2). They commence “The Premier shall be chosen ...”The use of the word “shall” is imperative and would appear to admit of no discretion. The cases in which the courts have held that provisions are “directory” are in what are called enabling acts, that is, acts which confer a power or impose a duty in general terms which the court decides are not absolute. I have read section 22(2) in its context and I have no doubt whatsoever that it is an imperative or mandatory provision insofar as it refers to the method by which the Premier “shall be chosen”. It therefore follows that questions of “substantial compliance” with the subsection do not arise.

The further group of submissions deal with the applicability of the “literal approach” in Solomon Islands. For my part, as I have indicated, I prefer to avoid such labels which although superficially convenient can result in an over-simplification of the way in which statutes are to be construed It is not at the risk of repetition. a process of applying a series of “approaches” or “methods” until the one best suited or found to be most modern is discovered; it is a process of conscientiously seeking to establish the meaning of the words used so that the object of the lawmakers in Parliament is so far as the words permit loyally carried into effect by the courts.

Finally I turn once more to the words of section 22(2) of the Act. Those words have a natural and ordinary meaning. They are not ambiguous. In fact they are to my mind crystal clear. There is no scope for reading into them the existence of an unexpressed exception. The words are mandatory or imperative and admit of no discretion. They are consistent with the Act. They produce no absurdity. What they may produce in certain hypothetical circumstances is a practical difficulty. But I do not consider it within my powers to read into the section words which may avoid that practical difficulty but which may introduce other practical difficulties. This court interprets; it does not legislate.

To the question posed in the Summons I give the following answer:-

Section 22(2) of the Provincial Government Act 1981 requires that, at a meeting of the Provincial Assembly at which the Premier is elected, all elected members of the Provincial Assembly must be present.

Determination accordingly.