Kenilorea v Attorney General [1983] SBHC 30; [1983] SILR 61 (11 April 1983)

[1983] SILR 61

IN THE HIGH COURT OF SOLOMON ISLANDS

KENILOREA

-v-

ATTORNEY-GENERAL

High Court of Solomon Islands
(Daly C.J.)
Civil Case No. 21 of 1983

11th April 1983

Constitution - locus standi to bring action - S 83 Constitution - Committee on Prerogative of Mercy, Constitution of - section 45 Constitution - section 31(3) Constitution.

Facts:

On 14th March 1983 a body met which, in good faith, regarded itself as the Committee on the Prerogative of Mercy established under section 45 of the Constitution. Section 45(2) required that a member be "a social worker" and another be a "person nominated by the provincial assembly of the province in which the person whose case is being reviewed ordinarily resides". The Governor-General acted on the advice of the meeting of 4th March 1983. The Leader of the Opposition ('the Applicant') subsequently applied under section 83 of the Constitution for a declaration that the provisions of the Constitution had been contravened and the acts of the Governor-General acting in accordance with the advice of the meeting were null and void.

Held:

1. As the power in Solomon Islands is, by virtue the preamble to the Constitution, vested in the people of Solomon Islands the words in section 83 requiring an applicant to show that his interests "are being or are likely to be affected" are to be given a wide interpretation (Judgement of Kapi J in Supreme Court Reference No. 4 of 1980 quoted with approval). The Applicant, as a citizen, may have a grievance if there was a contravention of the Constitution and in this particular case the Applicant could establish that his interests as such were being affected. He therefore had locus standi to bring the application.

2. The meeting of 4th March 1983 was not a properly constituted Committee on the Prerogative of Mercy as:-

(a) there was not a person nominated by the provincial assembly of the province of the person under consideration present or indeed nominated; and

(b) the person at the meeting as "social worker" no longer worked as such and was therefore not eligible for appointment as such.

3. The meeting was incapable of giving advice under section 45 of the Constitution and therefore the Governor-General received no such advice and the exercise of powers by the Governor-General were null and void. Section 31(3) whether or not the Governor-General acted in accordance with advice not whether such advice was given at all.

Other cases considered

Gamioba -v- Esezi II (1961) All N.L.R. 584
Gordon -v- Minister of Finance (1968) 12 W.I.L.R. 416
Gouriet -v- Union of Post Office Workers [1977] UKHL 5; (1977) 3 All E.R. 70
Baker -v- Carr [1962] USSC 42; (1962) 369 U.S. 186
Usman Mohammed -v- A.C. of Kaduna State (1980) 1 Plateau Law Reports 70
Australia Conservation Foundation Inc. -v- Commonwealth of Australia (1979) 54 A.L.J.R. 176
R -v- I.R.C. Ex P. Federation of Self Employed (1980) 2 W.L.R. 579
Thorson -v- A.G. of Canada (No.2) (1974) 43 D.L.R. (3d) 1
MacNeil -v- Novia Scotia Board of Censors (1974) 46 D.L.R. (3d) 259
A.G. -v- D.P.P. (Fiji) (1982) 9 C.L.B. 69
State -v- Independent Tribunal Ex parte Sasakila (1976) PNGLR 491

For Applicant: K. Brown Esq.
Respondent in person

Daly CJ: This is the first application which has come before the Court for a declaration and relief under Section 83 of the Constitution, our Supreme Law. As such it constitutes a most important stage of the legal and constitutional history of the Solomon Islands. Section 83 is a provision which seeks to provide a legal remedy where there is an allegation that there has been a contravention of those Chapters of the Constitution which deal with Citizenship, the Executive, the National Legislature, the Legal System, the Leadership Code, the Ombudsman, Finance, Land, Provincial Government and the Public Service. From this list of the Parts of the Constitution in relation to which section 83 may provide a remedy, it becomes apparent that the operation of section 83 can have an effect on almost every aspect of executive, parliamentary and judicial process in Solomon Islands. The provisions of Chapter II of the Constitution, which protect the fundamental rights and freedoms of the individual, have separate enforcement provisions in section 18 of the Constitution.

Section 83 reads as follows:-

"83(1) Subject to the provisions of section 31(3) and 98(1) of, and paragraph 10 of Schedule 2 to, this Constitution, if any person alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are being or are likely to be affected by such contravention, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for a declaration and for relief under this section.

(2) The High Court shall have jurisdiction, in any application made by any person in pursuance of the preceding subsection or in any other any provision of this Constitution (other than Chapter II) has been contravened and to make a declaration accordingly:

Provided that the High Court shall not make a declaration in pursuance of the jurisdiction conferred by this subsection unless it is satisfied that the interests of the person by whom the application under the preceding subsection is made or, in the case of other proceedings before the Court a party to those proceedings, are being or are likely to be affected.

(3) Where the High Court makes a declaration in pursuance of the preceding subsection that any provision of the Constitution has been contravened and the person by whom the application under subsection (1) of this section was made or, in the case of other proceedings before the Court, the party in those proceedings in respect of whom the declaration is made, seeks relief, the High Court may grant to that person such remedy, being a remedy available against any person in any proceedings in the High Court under any law for the time being in force in Solomon Islands, as the Court considers appropriate."

Subsection (4) is not relevant.

Before I consider the details of that section let me say something about the application before the Court in general terms. This Court is moved on behalf of the Right Honourable Sir Peter Kenilorea KBE, PC, MP, ("the Applicant") to grant declarations on 4th March 1983 was not properly constituted in accordance with section 45 of the Constitution with the result that it was incapable of tendering advice under that section to His Excellency the Governor-General and that any orders made as a result of advice purported to have been rendered were null and void.

For the purposes of this case, then, there are two matters in section 83 which must be established by the Applicant before this court may act under that section. The first is that the Applicant must be a person whose "interests are being or are likely to be affected by......contravention" of the appropriate provisions of the Constitution (section 83(1)). It will be seen that this is an important requirement because section 83(2), which confers jurisdiction on this Court, further provides that a declaration shall not be made unless the Court is satisfied that the interests of the Applicant "are being or are likely to be affected". The second matter that must be established is that there has been a contravention of the Constitution.

The first matter for decision is expressed in the language of the law as, does the Applicant have locus standi or legal standing to bring the application? If he does not have sufficient legal standing then the application must fail on this ground alone. In this case the Applicant claims that he has sufficient legal standing by virtue of the fact that he is a Solomon Islands citizen, a member of the National Parliament and Leader of the Official Opposition. The Applicant also says that he is entitled to make the application in each and every one of those capacities. He accepts that he has no interest simply as Sir Peter Kenilorea, because he has no personal financial or other interest which is being or likely to be affected by the alleged breach of the Constitution. But, it is submitted, that solely because he is a Solomon Islands citizen, the Applicant has an interest which is affected by breach of the provisions of section 45(2) of the Constitution. The nature of that claimed interest I must examine later in this judgment.

The learned Attorney-General, who is the Respondent to the motion, concedes that as Leader of the Official Opposition, the Applicant has a sufficient interest which is being or is likely to be affected to apply under section 83(1) in this case and therefore this Court has jurisdiction to make a declaration notwithstanding the terms of the proviso to section 83(2). This concession says the learned Attorney, is on the basis that the Leader of the Opposition has a public interest in the maintenance of the Constitution. However the learned Attorney General opposes the suggestion that a citizen of Solomon Islands as such, has a sufficient interest to apply. So the issue between the Applicant and Respondent is a limited one, which is does a citizen of Solomon Islands, with no interest personal to himself, have "an interest which is being or is likely to be affected" within the terms of section 83 of the Constitution when there is alleged breach of section 45 of the Constitution?

However matters of locus standi are not simply matters between the parties to any action. As was said in the Nigerian case of Gamioba v. Esezi II (1961) All N.L.R. 584 where locus standi was not raised by the Plaintiff nor challenged by the Defendant:-

"...it will be enough to say here that since validity of a law is a matter of concern to the public at large the Court had a duty to form its own judgment as to the plaintiff's locus standi, and should not assume it merely because the defendant admits it or does not dispute it."

(Per Brett F.J. delivering the judgment of the Supreme Court of Nigeria at p. 588).

Although there is in this case no challenge to the validity of a law, it seem to me that in matters of constitutional importance the same approach is to be adopted and it is for this court to form its own judgment about the Applicant's locus standi.

In our jurisdiction the determination of questions of locus standi in relation to applications made under section 83 must turn on the words used in that section. In many other jurisdictions there have been cases which are helpful in indicating the approach adopted by courts to the particular problems of locus standi in relation to their own constitutions and persons seeking to challenge alleged unconstitutional act. Normally the act subject of challenge has been the passing of legislation said to be in conflict with the constitution. This does not, of course, apply to countries such as England and Wales where there is no written constitution and hence no conflict between legislation and the constitution; although other matters are raised in the courts which do give rise to locus standi issues.

In many cases the conflict has been between an argument in favour of a restrictive grant of locus standi to those with a personal interest in the outcome of the case as against a wider grant the public interest. A clear expression of the former view is contained in a case in the High Court of St. Lucia. In Gordon v. Minister of Finance (1968) 12 W.I.L.R. 416 a member of the House of Assembly sought to bring action in the court to challenge the manner in which the first reading of an Appropriation Bill had been moved without the Estimates being previously approved by the House as the Constitution required. The Constitution of St. Lucia permitted access to the High Court to challenge an alleged contravention of the Constitution to any person who had "a relevant interest". Bishop J. held that the plaintiff had failed to establish that he had a "relevant interest". At page 420 he said:-

"I do not agree with submissions of counsel for the applicant on this aspect of relevant interest. His arguments....were confined almost exclusively to the moral concept. They referred to a moral duty and in effect they meant that members of the House of Assembly, or electors were interested in the sense of being concerned over the events in and the decisions of the legislature. I do not agree that the moral concept can be applied to the word "interest" in the definition of a person with a relevant interest. In my view the mere thought or expectation of having to pay money will not suffice. This is too vague and too unsubstantial. Rather, I am of the view that there ought to be involved a right, or a duty, or a liability which can be established by a court. It may be of the nature of a pecuniary or a proprietary interest or an interest which affects the applicant himself not sentimentally, not academically, not remotely."

This interpretation of the word "interest" follows a line of well established authorities in the United Kingdom which reflect a constitutional history which gave the Attorney-General a leading part to play in the enforcement of constitutional provisions in England and Wales and in which courts were restrictive in their attitude towards applicants for redress who could not establish a personal interest or detriment such as flowed from the normal laws of property or rights of personal action. The high water mark of these authorities may well be Gouriet v Union of Post Office Workers [1977] UKHL 5; (1977) 3 All E.R. 70 (Gouriet's Case) in which Lord Wilberforce said at page 80:-

"It can be properly said to be a fundamental principle of English law that private rights can be asserted by individuals, but that public rights can only be asserted by the Attorney-General as representing the public. In terms of constitutional law, and rights of the public are vested in the Crown, and the Attorney-General enforces them as an officer of the Crown."

(It should however be noted that these remarks were specifically address to relator proceedings rather than proceedings for prerogative orders).

Other countries too have adopted a similar restrictive line. In the United States the Constitution (Article III) restricts the powers of the court to adjudication in actual cases and controversies. The courts have held against this background that:-

"the gist of the question of standing is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination."

(United States Supreme Court in Baker v. Carr [1962] USSC 42; (1962) 369 U.S. 186 page 204).

In Nigeria the Constitution has no specific provisions giving a right to apply to the courts where contravention of the provisions of the Constitution other than those relating to fundamental rights is alleged. Nevertheless there is wide general jurisdiction to deal with constitutional matters. In Usman Mohammed v. A.G. of Kaduna State & Another (No. 2) (1980) 1 Plateau Law Reports 70 (summarized and commented upon in Public Law Spring 1982 at page 110 by Okpaluba) this jurisdiction was invoked by a person wishing to stand for a Local Council. It was alleged that the old Council had been continued beyond its lawful life by an unconstitutional law passed by the State Assembly. The Kaduna High Court rejected the application for a declaration that the law was illegal on the basis that the applicant although a would-be candidate, had no locus standi. After considering the common law procedures Mohammed C.J. said:-

"It is quite obvious from the authorities that for a plaintiff to possess locus standi in a suit where a declaration is sought he has to show a sufficient interest in the matter. And sufficient interest means an interest which is peculiar to the plaintiff and not an interest which he shares in common with general members of the public."

The law of Australia, too, follows what may be called the restrictive grant of locus standi and enables only applications by persons who have suffered some special damage for adverse detriment. See Australia Conservation Foundation Inc. v. The Commonwealth of Australia and Other (1979) 54 A.L.J.R. 176.

We can see, then, that there is a world wide body of judicial opinion which follows what may be called the early common law approach to questions of locus standi. However there is a growing body of judicial wisdom which calls for what has been called "The Liberalized Law of Standing" (K.C. Davis: 37 Chicago Law Review 450). Indeed it could be said that in England and Wales itself the common law approach is on the ebb and hence my earlier reference to Gouriet's case being "the high water mark". In January 1978 a new Rule of the Supreme Court in England came into force requiring an applicant for judicial review of administrative action to show "sufficient interest" before the Court will grant leave to proceed (R.S.C. Order 53 Rule 3(5)). In R. v. I.R.C. Exp. Federation of Self Employed (1980) 2 W.L.R. 579 ("the Federation of Self Employed Case") the words "sufficient interest" were considered by the English Court of Appeal. In that case an interest group sought judicial review of the actions of the Inland Revenue asserting an interest as a body of taxpayers rather than any special interest. The majority (Denning M.R., Ackner L.J.) held that a "sufficient interest" was established. The test applied by Denning M.R. at page 586, 587 was as follows:-

"...have these self-employed and small shopkeepers, through their federation, a "sufficient interest" to complain of this amnesty? Have they a genuine grievance? Are they genuinely concerned? Or are they mere busy bodies? This matter is to be decided objectively. A "busybody" is one who meddles officiously in other in other people's affairs. He convinces himself - subjectively - that there is a cause for grievance when there is none. He should be refused. But a man who is genuinely concerned can point - objectively - to something that has gone wrong and should be put right. He should be heard."

Ackner L.J. at pages 596 and 597 applied a similar test although somewhat narrower. He said:-

"I cannot see any logical distinction between the position of a ratepayer who can reasonably assert that he has a genuine grievance if there is unfairness between his assessment and that of others in the same rating area, whether or not his pocket is affected, and the position of a taxpayer who can reasonably assert that his sense of justice or fairness is offended by the unlawful act by the revenue in allowing his fellow taxpayers not to pay their tax. They have each in common that ability reasonably to assert a genuine grievance and that, it seems to me, is "a sufficient interest" to give them each a locus standi. In neither case can they be said to be mere busybodies, seeking to interfere with matters that do not concern them. To Mr Medd's rhetorical question - where do you draw the line? - I would answer, where the assertion of a genuine grievance cannot be said to be a reasonable assertion, i.e., it cannot be justified on reasonable grounds."

On the words "sufficient interest" Lord Diplock says at page 105:-

"The expression that (the draftsman) used in r. 3(5) had cropped up sporadically in judgments relating to prerogative writs and orders and consisted of ordinary English words, which, on the face of them, leave to the court an unfettered discretion to decide what in its own judgment it considers to be "a sufficient interest" on the part of an applicant in the particular circumstances of the case before it. For my part I would not strain to give them any narrower meaning."

Neither Lord Wilberforce nor Lord Diplock disapproved of the way Lord Denning M.R. or Ackner L.J. put the test. Lord Fraser of Tullybelton appeared to adopt it at page 108 et seq. and Lord Scarman said at page 113 h that the requirement for leave was "an essential protection against abuse of legal process. It enables the court to prevent abuse by busybodies, cranks and other mischief makers". Only Lord Roskill at page 119 h specifically found that the majority of the court of appeal adopted a wrong approach in reverting to the tests to be applied in deciding whether a "sufficient interest" exists.

Thus, subject to the matter being looked at, as it were, in the round, the House of Lords (other than Lord Roskill) did not depart from the tests applied by the majority in the Court of Appeal.

A similar "liberalization" has been taking place in Canada. Although in earlier cases the courts had followed the restrictive early common law authorities, in Thorson v. Attorney-General of Canada (No. 2) (1974) 43 D.L.R. 3d 1 the Supreme Court of Canada were prepared to allow an applicant to challenge the constitutionality of legislation on the basis that he was merely a taxpayer. The court held (see per Laskin J at p. 5):-

"(the) standing of a federal taxpayer seeking to challenge the constitutionality of federal legislation is a matter particularly appropriate for the exercise of a judicial discretion, relating as it does to the effectiveness of process".

This case has been followed by the Nova Scotia Supreme Court in Re MacNeil et al. v. Nova Scotia Board of Censors et al. (1974) 46 D.L.R. (3d) 259.

I have spent some time on these cases in England and Canada not only because they are cases in which judges of the highest international standing have given full opinions, but also because they played an important part in the Papua New Guinea Case of Supreme Court Reference No. 4 of 1980 which I have found to be of great assistance to me.

In that case the then Leader of the P.N.G. Opposition the Rt Hon. Michael Somare C.H. M.P. sought to challenge in the courts the constitutionality of a motion and subsequent Act of the National Parliament approving the sending of P.N.G. troops to Vanuatu. As a preliminary matter the Supreme Court was asked to rule on whether the applicant has sufficient legal standing and to decide by which court the matter should be determined. Section 23(2) of the P.N.G. Constitution gives the National Court wide power "if it thinks fit" to make any order for preventing or remedying a breach of the Constitution, although no standing is referred to in that subsection. Section 19, enabled the Supreme Court to give opinions on constitutional matters on the application of specified authorities. The Leader of the Opposition was not a specified authority. Section 18(1) gave the Supreme Court original and exclusive jurisdiction "as to any question relating to the interpretation or application of any provision of a constitutional law". The majority of the court Kidu C.J., Kapi J (as he then was) and Miles J. ruled that the Applicant did have standing to invoke the power of the court under section 18(1).

In, if I might respectfully say so, long and impressive judgments Kapi and Miles JJ reviewed and analyzed the authorities and concluded that a new rule should be developed which would give the court a discretion as to whether or not to recognize a person's locus standi to invoke the jurisdiction contained in section 19(1). Kapi J. after referring to the National Federation of Self Employed Case said at page 34:-

"Having regard to all the matters I have discussed, I would formulate a rule that would draw a line between those who can and those who cannot have standing. At the same time, the modern view on locus standi is not restrictive as is the common law. It must have a much wider conception as has been found in the Canadian cases dealing with constitutional cases.

A general principle that would suit the above description is the new English rule on locus standi. The English rule on locus standi was a result of much study by the English Law Commission. This rule was recommended by the Law Commission in its report on remedies in administrative law in 1975. The new rule would be that the applicant must have sufficient interest in the matter.

As to what is sufficient interest, I would adopt the objective test laid down by Lord Denning in R. v. Inland Revenue Commissioners, ex parte National Federation of Self Employed and Small Business Ltd (supra) (42). It is not possible to lay down a workable definition for all cases because each case is different. I would leave it to courts to develop the application of the rule in individual cases."

In relation to the standing of Mr Somare the learned judge said at pages 35 and 36:-

"Applying this to the present case I find that Mr Somare would have standing. As a member of the Parliament he belongs to the governmental body which has been invested with the power of lawmaking by the Constitution. In relation to the issue in this case, Mr Somare has raised, amongst other things, that the lawmaking body has not complied with certain provisions of the Constitution in passing the Defence Force (Presence Abroad) Act 1980.

If anyone has interest in the matter it is the members of the legislature who make the laws. It cannot be said that he is a mere busybody meddling in other people's affairs. He, as a member of the Parliament, has standing and can bring this matter to court. Having come to this conclusion it is not necessary for me to consider his standing as Leader of the Opposition.

Furthermore, Mr Somare, as a citizen, has standing. A citizen has standing where a question of non-compliance with the Constitution by the Parliament is involved.

This stems from the fact that the legislative power belongs to the people (citizens). This power is vested in the Parliament by the Constitution. The power given to the Parliament is to be exercised in accordance with the Constitution (s. 100 of the Constitution). If the Parliament has not complied with the Constitution and the members of the Parliament are not willing to bring the matter before the court then, in my view, a citizen can. A citizen, under our Constitution, has not only an interest for the due observance of the law but, more than this, has the legislative power. I do not think that standing ought to be restricted to members of the Parliament or leaders of political parties in the Parliament. They are politicians and may have political reasons for not wanting to come to court. Our Constitution would be at stake if nobody had standing in those circumstances.

It might be said that such a view might open the floodgates and the courts might be swamped with too many cases. I observe that in other countries this policy consideration often restricts the scope of locus standi. With respect, this is no question of policy. Under our Constitution the legislative power belongs to the people. The question is, would the ordinary citizen have any standing in court if the legislative power is not exercised in accordance with the Constitution? A citizen would have standing for the reasons I have already given. I do not think it is proper for this court to deny a citizen right to locus standi by a policy consideration. After all, the judicial power belongs to the people (s. 158 of the Constitution). It is the people's court and let them come by the hundreds if they have the right to come.

However, I consider that standing given to any citizen should be at the discretion of the court. In exercising this discretion the court should consider whether the applicant has exhausted other means of achieving the same thing. In this case the Leader of the Opposition opposed the motion and the Act but was unsuccessful in the Parliament. He also exhausted the means of getting this question referred under s. 19 of the Constitution. His request to the Ombudsman Commission to refer the question was unsuccessful. There is no suggestion that other authorities will refer the question. I am not suggesting that a citizen's right to complain depends on whether or not he has tried other means. Rather, if he does this this is an indication that he is genuinely concerned with the matter. A person who simply comes straight to the court as a delaying tactic or for reasons other than that he is genuinely concerned with the matter should not be heard."

Mr Justice Miles put reliance upon the Canadian decisions referred to above and academic writings. On this basis he was prepared to grant to Mr Somare legal standing on the basis that he was Leader of the Opposition and had sought other avenues to bring the matter before the court. However he left open the question of whether the applicant had standing as a taxpayer (see page 53).

Kidu C.J. in reaching a similar conclusion relied upon general interpretation of the provisions of the Constitution.

Having looked at the authorities I now return to our Constitution and the case before me. As the House of Lords suggests, I propose to look at the legal and factual aspects together.

The words used in section 83(1) and (2) are that the Applicants have "interest" which "are being or are likely to be affected" by the contravention alleged. These words must be interpreted in the context of the Constitution as a whole and giving that Constitution a generous interpretation as discussed in the Privy Council in A.G. v. DPP (Appeal from Fiji 9 C.L.B. 69 judgment delivered 8 Oct. 1982). The preamble to the Constitution states that:-

"all power in Solomon Islands belongs to its people and is exercised on their behalf by the legislature, the executive and the judiciary established by this Constitution."

This preamble concludes "AND for these purposes we now give ourselves this Constitution". Section 2 provides that the Constitution is "the supreme law of Solomon Islands."

There is to be observed immediately a clear distinction with the constitutional law of England as stated in Gouriet's case (ab. cited) where it is said that the rights of the public are vested in the Crown. In Solomon Islands the power is vested in the people; Her Majesty is the Head of State. For this reason alone the authorities dealing with relator actions and the powers of the Attorney-General as an officer of the Crown are not, in my opinion strictly applicable in Solomon Islands. In our Constitution the Attorney General is given a specific role to play by section 42 as principal legal adviser to the Government. Indeed it can be seen in this present motion that the Attorney-General appears as Respondent in his constitutional capacity as principal legal adviser to the Government and quite properly takes up his position as such. It would, in many cases in Solomon Islands be impossible for him, as a public officer, to be the originator of public interest actions and principal legal adviser to the Government at one and the same time.

It will also be seen from the preamble that the power is to be exercised on behalf of the people by "the executive....established by this Constitution." The allegation in this case is that power has been purported to be exercised in relation to the prerogative of mercy otherwise than as provided by the Constitution. It is said that the committee which purported to give advice on these matters was not properly constituted and that thus someone other than an institution established by the Constitution has exercised power granted by the people.

Can it then be said that the Applicant's interests are being affected by this alleged breach? Has the Applicant a genuine grievance in relation to the subject matter of the application? Applying my discretion to this matter as a whole, I have no hesitation in answering both those questions with a firm "yes". As a citizen of Solomon Islands Sir Peter has granted with his fellow citizens a Constitution to all citizen of Solomon Islands. Each and every one of those citizens may have a grievance if there is contravention of the terms of that Constitution. A citizen's interest lies in the effective maintenance of the Supreme law by which he has entrusted power to the organs of government in his sovereign democratic state. The power so entrusted belongs to each and every citizen and if it is abused or misused a citizen should have general standing to come to this court, a court to whom power is also entrusted to grant remedies when there is a contravention of the terms of the citizen's entrustment, that is, the terms of the Constitution. I say "may have a grievance" and "general standing" because it remains within the discretion of the court to decide in an individual case whether the applicant has a genuine grievance and, on this basis, whether his interests are in fact being affected or likely to be affected. This is the import of the use of those words in section 83(1) and 83(1) of the Constitution.

In this case, bearing in mind the nature of the alleged contravention, the nature of the Applicant, the manner of the approach to the court and having read the documents before the court I hold that the Applicant as a citizen of Solomon Islands has locus standi or legal standing within section 83(1) of the Constitution.

I turn now to the substance of the allegation. The facts are not in dispute. On 4th March 1983 there was a meeting of a body which, in good faith, regarded itself as the Committee on the Prerogative of Mercy so named in section 45 of the Constitution. Present at the meeting were Sir Frederick Osifelo, Chairman, Mr Baden Prince and Dr. Wilson Waketaku as members and the secretary. The meeting considered two petitions, one from Mr John NGINA and one from Mr Tisua MAELASI. The meeting reached certain conclusions on these petitions and communicated with H.E. the Governor-General. As a result of that communication the Governor-General reduced the sentence of imprisonment on Mr Ngina to one month and issued a free pardon to Mr Maelasi. I should make it clear that it is accepted that Sir Frederick Osifelo and Dr Waketaku were duly and properly appointed and that Mr Baden Prince had no reason to believe that he was not also duly and properly appointed.

The Applicant's case is a short one. He says that for three reasons the meeting of the 4th March 1983 was not a meeting of the Committee on Prerogative of Mercy validly constituted as required by section 45(2) of the Constitution and therefore it was incapable of tendering advice to H.E. the Governor-General. As section 45(5) requires H.E. the Governor General to exercise the powers conferred by section 45 to grant pardons (section 45(1) (a)) or to substitute a less severe form of punishment (section 45(1) (c)) on the advice of the Committee if there was nobody capable of giving such advice, H.E. the Governor-General could not validly exercise those powers. That is the case for the Applicant.

The first question then is, was the meeting on 4th March a meeting of a validly constituted Committee on the Prerogative of Mercy? Section 45(2) and (3) read:-

"45(2) There shall be a Committee on the Prerogative of Mercy (in this section referred to as "the Committee") which shall consist of the following members-

(a) a Chairman and two other persons, one of whom shall be a qualified medical practitioner and the other of whom shall be a social worker, appointed by the Governor-General in his own deliberate judgment; and

(b) one person nominated by the provincial assembly of the province in which the person whose case is being reviewed ordinarily resides.

(3) The provincial assembly of every province shall as soon as it is elected nominate a person for the purposes of subsection (2) (b) of this section for such period as it deems appropriate."

There is no dispute that, in fact, there was no person "nominated by the provincial assembly of the provinces" in which Mr Ngina and Mr Maelasi ordinarily reside present at the meeting, and that, further, there are no nominations of such persons for the purposes of section 45(3) in existence. It is very properly conceded by the learned Attorney-General that on this basis the meeting of 4th March 1983 was not of a body consisting of the members as required by section 45(2).

Counsel for the Applicant, however, takes two other points on the constitution of the meeting. The first is as to quorum and involves a consideration of section 137(2) of the Constitution which applies to the Committee by virtue of section 137(7). However the learned Attorney-General having conceded that, whatever the rules as to quorum, in the absence of a body of duly nominated provincial members available to be served with notice the committee could never be properly constituted, I do not think it necessary to consider the question arising from the terms of section 137(2).

The remaining point is as to the presence of Mr Baden Prince at the meeting as the duly appointed "social worker" for the purposes of section 45(2) (a). Mr Baden Prince had a distinguished career in the field of social work and holds Diplomas in Social Science and Social Case Work. His last post in this field was in 1980 when he was Senior Social Welfare Development Officer for Solomon Islands. At the time of his appointment and on 4th March 1983 Mr Prince was engaged in the manufacture of fibre glass canoes and no longer active in social work. Counsel for the Applicant argues on that basis that Mr Prince could not be a person "who...shall be a social worker" for the purposes of section 45(2) (a) and could not be appointed to the Committee as such. The learned Attorney-General takes two points. First, he says that as a matter of construction the word "qualified" before "medical practitioner" in section 45(2) (a) should be read as also applying to "social worker", thus enabling a qualified but as it were, non-practising social worker to be appointed. Second, he says that once a social worker always a social worker, whatever is one's actual occupation.

As to the first point, the contention seems to me to strain the wording of paragraph (a) beyond a straightforward interpretation. The wording is quite clear without the transposition of "qualified" over a number of words of the text in circumstances where the draftsman could easily have inserted the word before "social worker" expressly had it been necessary to do so. I read the words as written; that is, that one member appointed must be "a social worker".

What do those words mean? Again I give them their natural meaning as a person who is a "worker" and that that work is in fields termed "social". Fortunately I do not have to further discuss what field of work is "social" as it is not contended that Mr Prince at the relevant time was engaged in such a field of work. Thus it is, to my mind, clear that Mr Prince was not a "worker" in any such field at the relevant time and was ineligible for appointment. I accept that the words should be stretched to allow for such a being as "a non practising social worker" which seems to me with respect, to embody a contradiction in terms. On this ground, too, I find that the meeting of 4th March 1983 was not of a body constituted as required by section 45(2).

What are the effects of these findings? It is clear that no body which was a validly constituted Committee on the Prerogative of Mercy has ever considered the Petitions of Mr Ngina and Mr Maelasi. During argument I raised the question of section 31(3) of the Constitution. This reads:-

"31(1) Where the Governor-General is required by this Constitution to act in accordance with the advice of, or after consultation with, any person or authority, the question whether he has in any matter so acted shall not be called in question in any court of law."

The learned Attorney-General does not rely upon the subsection but I invited argument for the Applicant upon it. Mr Brown says that subsection should be limited to preventing the court enquiring into one matter and one matter only, that is whether or not H.E. the Governor-General has in fact acted in accordance with the advice of "a person or authority". So the Court can consider whether or not any advice at all was tendered by the relevant person or authority but not the nature of that advice or the course adopted pursuant to it. In this case, says Mr Brown, as there was no validly constituted Committee on the Prerogative of Mercy it could not tender advice and H.E. the Governor-General, in law, received no "advice" within the meaning of section 45(5) and therefore he had no power to act at all.

Force is lent to this argument by a consideration of the terms of section 86(4) of the Papua New Guinea Constitution which is drafted in more wide terms as follows:-

"The question of what (if any) advice was given to the Head of State, or by whom, is non-justiciable."

Had the draftsman of our Constitution wished to do so he could have used such wide terms in section 31(3) which might have defeated the argument that Mr Brown now advances. I take the view, however, as did the Supreme Court in Papua New Guinea in The State v. The Independent Tribunal Ex parte Sasakila (1976) PNGLR 491, that ouster of the jurisdiction of the courts must be conveyed in clear terms and therefore a restrictive interpretation should be given to any provision seeking to do so particularly where the provision might otherwise constrict the constitutional rights of the citizen. The terms of section 31(3) of the Constitution are not in my judgment sufficiently clear to prevent this court from considering whether there was a body capable of giving advice in law for the purposes of section 45 and, having found that there was not such a body in existence, finding that there was an essential element missing in the constitutional process which would enable His Excellency validly to exercise the powers under section 45 of the Constitution.

The result is that pursuant to section 83(2) of the Constitution I grant the declarations sought as follows:-

(i) when considering the cases of John Ngina, the Honourable Minister for Transport, Communications, Government Utilities and Tisua Maelasi on Friday the 4th day of March 1983 the Committee on the Prerogative of Mercy (hereafter referred to as the Committee) was not properly constituted pursuant to section 45(2) and (3);

(ii) that consequently the Committee was not competent or capable of tendering or giving the advice or any advice to His Excellency the Governor-General; and

(iii) that consequently the grant by His Excellency the Governor-General of any respite or remission from punishment or any pardon to the said persons whose case were considered by the Committee acting in accordance with the advice of the Committee was null and void.