Maomatekwa v Malaita Provincial Assembly [1987] SBHC 9; [1987] SILR 65 (30 March 1987)

[1987] SILR 65

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 21 of 1987

MAOMATEKWA

v

MALAITA PROVINCIAL ASSEMBLY

High Court of Solomon Islands
(Ward C.J.)
Civil Case No. 21 of 1987

Hearing: 27 March 1987
Judgment: 30 March 1987

Provincial Government - Standing Orders - whether oath of allegiance by new member need be taken before the Assembly under section 25 and schedule 3 of the Provincial Government Act and Malaita Provincial Assembly Standing Orders Part 4, Orders 12 and 14(b).

Facts:

Three members of Malaita Provincial Assembly took the oath of allegiance before the Speaker on 8 August 1986, and took their seats on 12 August. On 14 August they voted on a motion of no confidence on which the Premier was defeated. He argued in the High Court that as the members had not taken the oath before the Assembly, they were not entitled to take part in the proceedings.

Held:

Nothing in the Act or in Standing Orders requires the oath to be taken before the Assembly.

Andrew Radclyffe for Applicant
D. J. Romeo for the Respondent

WARD CJ: This is an application for orders of certiorari and mandamus, leave having been granted on 20th February.

The Applicant is a member of the Malaita Provincial Assembly. In July 1985, he was elected Premier and held the position until he was defeated on a motion of no confidence on 14th August 1986. It is that vote which forms the basis of this application.

On 25th July 1986, three new members were elected for East Kwaio ward and took their seats in the Assembly at the start of the full session on 12th August. They took an active part in the proceedings and voted on the motion of no confidence.

In the statement in support of the application for leave, it was suggested that these three members had never taken the oath of allegiance in accordance with Standing Orders. At the hearing, however, the Respondent called the Clerk to the Assembly who explained that these three members had arrived in Auki a few days before the session and took the oath on 8th August. It was administered in the Speaker’s office by the Speaker in the presence of the Clerk to the Assembly and copies of the oath, signed by the new members, were produced to the court.

It is accepted by the applicant that the oath was made but he questions whether that was sufficient compliance with Standing Orders.

Part 4 of Standing Orders is headed "Oaths" and the relevant sections read -

"12. Members.

No member may take part in the proceedings of the Assembly until he makes the oath or affirmation of allegiance in the form set out in Schedule 1 to the Constitution.

13. ................

14. Administration of Oaths.

(a) The Speaker, or in his absence the Deputy Speaker, shall administer the oath or affirmation ......

(b) The making of an oath or affirmation shall be the first item of business on any day when an oath or affirmation is to be made."

It is suggested by the Applicant that 14(b) shows that the oath must be made before the Assembly and the Clerk to the Assembly agreed that this was the usual procedure. However he stated that, on some previous occasions, the oath had been administered by the Speaker elsewhere.

The Malaita Provincial Assembly was set up under the Provincial Government Act, 1981. By section 25 (1), a Provincial Assembly shall make Standing Orders for regulating procedure. By subsection (2) the Orders shall make provision for the matters referred to in Schedule 3 to the act which includes: "Provision for ensuring that no member of the Assembly takes part in any of its proceedings .... until he has made an oath or affirmation of allegiance in the form set out in Schedule 1 to the Constitution."

Nowhere does the Provincial Government Act require the oath to be made before the Assembly and Order 12 does not include such a requirement. This is in contrast to Parliament where, by section 63 of the Constitution, the oath must be "made before Parliament".

I cannot accept that Order 14(b) adds such a requirement here. It is simply to ensure that, if an oath is to be made before the Assembly, it must be the first item of the day’s business for sensible and practical reasons.

I am quite satisfied these three members for East Kwaio took the oath of allegiance in accordance with Standing Orders and were, thereafter, entitled to take part in the proceedings.

The application is refused with costs to the respondent.