Waena v Attorney General [1989] SBHC 18; [1988-1989] SILR 29 (20 March 1989)

[1988-1989] SILR 29

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 42 of 1989

NATHANIEL WAENA

v

ATTORNEY GENERAL

High Court of Solomon Islands
(Ward C.J.)
Civil Case No. 42 of 1989

Hearing: 17 March 1989
Judgment: 20 March 1989

Constitution - election of Speaker - whether holder of public office eligible to stand for election interpretation of s. 64 of the Constitution.

Speaker - power to rule on points of order - whether entitled to rule on eligibility of candidates nominated for election - whether in breach of s. 83 of the Constitution.

Facts:

The Attorney General, Frank Kabui, was a candidate for election to the post of Speaker of Parliament. Before the ballot was held the MP for Central Malaita raised a point of order objecting to Mr Kabui's candidacy on the ground that he was the holder of a public office. The Speaker, after taking advice from the Chief Legal Officer in the Attorney General's chambers and confirming with the Prime Minister that Mr Kabui had not resigned his office, ruled that Mr Kabui's candidacy was invalid and ordered that his name be deleted from the list of candidates. A ballot was then held which resulted in Mr Waeta Ben being elected Speaker. The applicant was one of the Members of Parliament who nominated Mr Kabui and sought a number of declarations from the Court as follows:

(a) A declaration as to the meaning of section 64(1) (a) of the Constitution.

(b) A declaration as to whether or not the nomination of the Hon. Attorney General as a candidate for the election of a Speaker under section 64(1)(a) of the Constitution was valid.

(c) A declaration that the Speaker of Parliament has no jurisdiction in law to determine that the Hon. Attorney General was disqualified from standing as a candidate for the election of a Speaker and that his ruling that the Hon. Attorney General was disqualified from so standing contravened section 83 of the Constitution, thereby rendering the Speaker's ruling unconstitutional and invalid.

(d) A declaration that the advice given by the Chief Legal Officer of the Attorney General's office to Parliament on the floor of Parliament was a contravention of section 42(4) of the Constitution in that the said Chief Legal Officer did not have the locus standi to tender such advice to Parliament in Parliament.

(e) A declaration that the subsequent election of Mr Waeta Ben, MP, as Speaker of Parliament was null and void.

Held:

(1) Under section 64 of the Constitution the Speaker must be elected from persons who are qualified for election as a Member of Parliament. In order to discover those qualifications it is necessary to read section 48 which is clearly expressed to be subject to section 49. No reading of those two sections together would allow a public officer to be qualified for election. It was clear that the intention of the legislature was to limit the rights of certain people including holders of public office. The court declined to give a declaration in such general terms as requested in paragraph (a), but in paragraph (b) declared that the nomination of the Attorney General as a candidate for the election of a Speaker was invalid.

(2) The post of Speaker is created by the Constitution but that document is silent on his duties and powers save to provide that he shall preside at any sitting of Parliament. The proceedings are governed by Standing Orders made under section 62 of the Constitution. Standing Order No. 82 provides that the usage and practice of the U.K. Parliament shall be followed so long as it is not inconsistent with any Standing Order. It is clear that the Speaker in the Westminster Parliament has the power to make rulings in answer to questions raising points of order and accordingly the Speaker was within his powers when he ruled on the nomination of Mr Kabui.

(3) In so ruling the Speaker was not trespassing on the exclusive province of the Court to interpret the Constitution and had not contravened s.83 of the Constitution. The Court declared that the Attorney General was disqualified from standing as a candidate for the election of a Speaker.

(4) The Chief Legal Officer of the Attorney General's chambers is not the holder of the office of Attorney General and was not entitled to take part in the proceedings of Parliament under section 42(4) of the Constitution.

(5) Having acted within his powers when he ruled on the candidacy of Frank Kabui the Speaker was entitled to remove his name from the list of candidates. The election that followed was properly conducted and was valid.

Case referred to:

Re Cund [1889] UKLawRpCh 161; (1889) 43 Ch. D 12

J. Muria for the Applicant
R. Teutao for the Respondent

WARD CJ: On the 8 March, 1989, the Attorney General, Frank Kabui, was one of five people nominated for election to the post of Speaker of Parliament- Nominations closed on 10 March and, shortly thereafter, one of the other candidates, the former Speaker, withdrew leaving four contestants.

Parliament sat on 14 March for the purpose of electing the Speaker but, before the ballot was held, the Member for Central Malaita, Francis Saemala, on a point of order objected to the candidacy of Mr Kabui because he still held a public office.

It is admitted by the applicants that, at the time, Mr Kabui was the Attorney General having neither resigned nor brought himself within the provisions of section 145 of the Constitution.

It appears from the affidavit of the Prime Minister that, if Mr Saemala had not raised the matter, the Prime Minister would have done so and he had already discussed it with the Chief Legal Officer in the Attorney General's chambers. He had also taken the step of asking that officer to attend the sitting of Parliament and give his legal opinion which he did when the point was raised. Following confirmation by the Prime Minister that the Attorney General had not resigned, the Speaker ruled that Mr Kabui's candidacy was invalid and ordered his name be deleted from the list of candidates.

A ballot then held under Standing Order No.5 resulted in Mr Waeta Ben being elected on the first vote.

The applicant in this action, Nathaniel Waena, was one of the Members who nominated Mr Kabui and he seeks a number of declarations from the Court:

(a) A declaration as to the meaning of section 64(1) (a) of the Constitution.

(b) A declaration as to whether or not the nomination of the Hon. Attorney General as a candidate for the election of a Speaker under section 64(1) (a) of the Constitution was valid.

(c) A declaration that the Speaker of Parliament has no jurisdiction in law to determine that the Hon. Attorney General was disqualified from standing as a candidate for the election of a Speaker and that his ruling that the Hon. Attorney General was disqualified from so standing contravened section 83 of the Constitution, thereby rendering the Speaker's ruling unconstitutional and invalid.

(d) A declaration that the advice given by the Chief Legal Officer of the Attorney General's office to Parliament on the floor of Parliament was a contravention of section 42(4) of the Constitution in that the said Chief Legal Officer did not have the locus standi to tender such advice to Parliament in Parliament.

(e) A declaration that the subsequent election of Mr Waeta Ben, MP, as Speaker of Parliament was null and void.

The Attorney General is respondent in his capacity as the Legal Adviser to the Government and not because of his personal role in the matter and, rather surprisingly, neither the previous Speaker nor the new Speaker have been joined as parties.

The provision for the election of a Speaker is contained in section 64(1) of the Constitution:

"(1) Parliament shall at its first sitting after any general election elect-

(a) from among persons who are qualified for election as a Member of Parliament, a Speaker;"

The qualifications for election as a Member of Parliament are set out in section 48.

"48 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; and

(b) he has attained the age of twenty-one years."

So far as they are relevant to this application, the provisions of the next section referred to read as follows:

"49(1) No person shall be qualified for election as a Member of Parliament who-

(b) holds, or is acting in, any public office."

By section 42(1), the office of the Attorney General is a public office.

The declaration sought in paragraphs (a) and (b) can be dealt with together.

Mr Muria for the applicant distinguishes, as I understand his argument, between qualification for election in section 48 and disqualification in section 49. He suggests that, as the wording of section 64 only refers to persons who are qualified for election as members of Parliament, the section should not be extended to include the disqualifying clauses of section 49.

I cannot accept that argument. As Mr Muria concedes words in a statute must be given their ordinary and natural meaning unless there is some ambiguity. I can see no such ambiguity here; the words are perfectly clear. It bas also long been accepted that the meaning of a statute and the intention of the legislature when enacting it can only be properly ascertained by a consideration of the statute as a whole in order to arrive at a consistent plan.

Under section 64, the Speaker must be elected "from any persons who are qualified for election as Member of Parliament." In order to discover those qualifications it is necessary to read section 48 which is clearly expressed to be subject to the provisions of section 49. No reading of those two sections together would allow a public officer to be qualified for election. If the principal definition is qualified itself, I subsequent reference to it must take it in the same form unless there is some express intention otherwise and no such intention appears in section 64.

It is further urged by Mr Muria that any statutory provision should be interpreted so far as possible so as not to cause any interference with the vested rights of a subject. Thus the Court should avoid a construction he says, that takes away the right of the Attorney General to stand for the Speaker's post. He quotes the rule from Halsbury's Laws, third edition, Vol. 7 para 417. However, with respect to the learned editor, that statement of the rule is incomplete. This presumption of interpretation is better expressed in Re Cund [1889] UKLawRpCh 161; (1889) 43 Ch. D 12 by Bowen LJ at p. 17.

".........in the construction of statutes, you must not construe the words so as to take away the rights which already existed before the statute was passed unless you have plain words that indicate such was the intention of the Legislature."

It is perfectly clear the intention of the Legislature when enacting the Constitution was to limit the rights of certain people including holders of public office.

Applying Bowen LJ's test, Mr Muria's argument must fail.

Thus, insofar as paragraphs (a) and (b) are concerned, I decline to give a declaration in such general terms as requested in paragraph (a) and in paragraph (b) I declare that the nomination of the Attorney General as a candidate for the election of a Speaker was invalid.

I pass to paragraph (c) of the summons. It is plain that although one declaration is sought it relates to two separate matters:

(i) that the Speaker has no jurisdiction in law to determine the Attorney General was disqualified from standing for election of a Speaker, and

(ii) that the Speaker's ruling on that matter contravened section 83 of the Constitution.

It was stated at the hearing by both parties, that Mr Teutao, for the respondent, had conceded this paragraph. In explaining his position to the Court, Mr Teutao said "if for some reason Mr Kabui is disqualified, the ruling of the Speaker will not matter anyway. Therefore, what happened thereafter is no problem. Although the Speaker's ruling appears to violate section 83, if I am right (i.e. on the interpretation of section 64) it does not matter at all."

I find it hard to follow his logic and it is not clear just what concession he is making. It does not seem on the face of it to embrace the first point and, if it is a concession on the second point, I am far from convinced it was properly made.

As a result no doubt of the apparent concession Mr Muria did not argue this point in any detail and confined himself to a basic statement of the paragraph and the suggestion that the Speaker's action was, ultra vires. He suggests this was a jurisdictional error and so the ruling is void.

I shall deal with the two parts of paragraph (c) separately.

In order to determine whether the Speaker was acting ultra vires his powers when he ruled on the
Attorney General's candidacy, it is necessary to consider his position.

The post was created by the Constitution but that document is silent on his duties and powers save to state that he shall preside at any sitting of Parliament. As such he is to control the proceedings which are governed by Standing Orders made by Parliament under section 62 of the Constitution. If he is to control proceedings, he must role whenever necessary on matters relating to those Standing Orders.

Standing Order No. 82 provides

"Where any matter arises which is not provided for in these Orders or the resolution of any other matter causes doubt, the usage and practice of the Common House of Great Britain......shall be followed so long as it is not inconsistent with the Order of practice of ,his Parliament."

It is clear that the Speaker in the Westminster Parliament has the power to make rulings in answer to questions raising points of order on current business and, indeed, these rulings provide the main source of the practice of that Parliament.

The procedure for electing a new Speaker is covered by Standing Order 5.

By Standing Order 5(2):-

"(2) Every citizen of Solomon Islands under the age of twenty-one and who is otherwise qualified for election as a Member shall be eligible for election as Speaker."

This clearly follows and is subject to the provisions of the Constitution. If a person nominated appears not to fall within Standing Order 5(2), the Speaker must role on the point. When he ruled on the validity of the nominations, he was within his power and no question of acting ultra vires arises.

Moving from there to the second part of paragraph (c), Mr Muria argues that, when the Speaker ruled that Mr Kabui was not qualified, he was interpreting sections 64(1) (a), 48 and 49 of the Constitution and, in that, was trespassing, as it were, on the exclusive province of the High Court to interpret the Constitution.

Many actions by public bodies are based on interpretations of the Constitution. I cannot accept that, whenever such a decision is made, it means that body has usurped the function of the High Court. Is it suggested by this that, whenever the Returning Officer rejects a nomination paper under section 27(2)(a) or (b) of the National Parliament Electoral Provisions Act, 1980 he is making a ruling on the Constitution and therefore acting ultra vires? The answer is clearly no.

However, the matter must be taken further because of the suggestion that the Speaker, by his ruling, has contravened section 83 of the Constitution. The relevant portion of that section reads, subject to certain provisions that do not apply here,

"...............if any person alleges that any provision of this Constitution......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 sub-section or in any other proceedings lawfully brought before the Court, to determine whether 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."

Thus it can be seen the section provides a remedy for anyone who feels his constitutional right have been contravened by asking the High Court for a declaration. Despite Mr Muria's argument and Mr Teutao's concession I am unable to see any reason why the Speaker's ruling could be seen as taking away the rights of, in this case, Mr Kabui to apply to the High Court. Indeed that is the very purpose of these proceedings.

On paragraph (c) I declare that the Speaker did have jurisdiction to determine that the Attorney General was disqualified from standing as a candidate for an election of a Speaker. The second part of the paragraph that relates to section 83 is misconceived and I decline to make any declaration on that matter.

Paragraph (d) relates to the attendance by the Chief Legal Officer to give his opinion to Parliament.

By section 42(4) of the Constitution, the person holding the office of Attorney General is permitted to take part in the proceedings of Parliament as adviser to the Government in the circumstances that applied on 14 March.

The provision is clear and unequivocal, only the Attorney General has that entitlement. The Chief Legal Officer from the Attorney General's chambers is not a person holding the office and he was not, therefore, entitled to take part in the proceedings of Parliament.

I make no criticism of the Chief Legal Officer involved. He was summoned to attend by the Prime Minister and it is not surprising he did so. The difficulty he and the Prime Minister faced is easy to appreciate because the Attorney General was an interested party in the matter at issue. Those difficulties would have been avoided if he had resigned before nomination as he should have done.

I make the declaration sought in paragraph (d).

I pass now to paragraph (e). I have ruled that the Speaker was acting within his powers when he ruled on the candidacy of Frank Kabui and declared he was disqualified and I have also ruled that decision was correct. Having done so, the Speaker was entitled to remove his name from the list of candidates.

There is no suggestion the election that followed was not properly conducted and I rule that it was valid. I therefore decline to make the declaration sought in paragraph (e).