Hilly v Governor General of Solomon Islands [1994] SBHC 71; HCSI-CC 299 of 1994 (26 October 1994)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.299 of 1994

FRANCIS BILLY HILLY & OTHERS

-v-

GOVERNOR GENERAL OF SOLOMON ISLANDS

High Court of Solomon Islands
(Palmer J)
Civil Case No.299 of 1994

Hearing: 25th October 1994
Judgment: 26th October 1994

Attorney General for Plaintiff
R. Teutao for the Defendant

PALMER J: On the morning of the 13th of October, 1994, a warrant purporting to remove Francis Billy Hilly, Member of Parliament for Ranongga and Simbo, from the office of Prime Minister and leader of Her Majesty’s Government, was issued by the Governor General of Solomon Islands, Moses Puibangara Pitakaka, and served on Mr Hilly by the Commissioner of Police. On receipt of the Order, Mr Hilly labelled the document as ‘unconstitutional’ and refused to step down. The learned Attorney General called it a ‘worthless piece of document’. This was consistent with the advice that he had previously given to the Governor General when he had been asked by the Governor General on or about the 11th of October, 1994, directing him to draft a suitable order that would provide for the removal of Mr Hilly as Prime Minister, and he had advised the Governor General to the contrary.

The terms of the order in full read:

“TO: Hon Francis Billy Hilly

MP Prime Minister

Office of the Prime Minister

P.O.Box G1

HONIARA.

ORDER OF REMOVAL OF THE HON FRANCIS BILLY HILLY MP FROM THE OFFICE OF PRIME MINISTER AND LEADER OF GOVERNMENT.

I, MOSES PUIBANGARA PITAKAKA, Governor-General of Solomon Islands and Personal Representative of Her Majesty The Queen, the Head of State of Solomon Islands, hereby under the oath of my office sign this Warrant for Billy Hilly MP for Ranongga and Simbo, from the Office of Prime Minister and Leader of Her Majesty’s Government, effective from 1000 hrs Thursday 13 October, 1994 in the year of our Lord.

This order was made for the following reasons:

(a) Hon Francis Billy Hilly MP, the Prime Minister no longer enjoys the majority support of Members of Parliament in accordance with section 33(1) of the Constitution.

(b) To allow him to perform the function of the Office of the Prime Minister and leader of Her Majesty’s Government would be in direct violation of the provisions of the Constitution referred to (a) above.

Therefore as custodian of the Nation’s Constitution, I can no longer allow Hon Francis Billy Hilly MP and the Executive Authority in government to continue in office without the mandate as stipulated in section 33 (1) of the Constitution.

Accordingly therefore as Governor-General of Solomon Islands and personal representative of Her Majesty the Queen, the Head of State of Solomon Islands, sign the order for the immediate removal of the Hon Francis Billy Hilly MP from the Office of the Prime Minister and from the executive function of Her Majesty’s Government for he no longer has the mandate to continue to exercise executive power in Government over the people of Solomon Islands in accordance with the Constitution.

I, MOSES PUIBANGARA PITAKAKA, Governor-General of Solomon Islands, act in the name and on behalf of Her Majesty The Queen, the Head of State of Solomon Islands and in accordance with sections 2; 30; 33(1) and 76(b) as read with section 2 of Schedule 3 to the Constitution, hereby made this order accordingly.

I further order the Commissioner of Police and all members of the Disciplined Forces for which I am the Commander-in-Chief to ensure that this order is carried out and complied with in the Name and on behalf of Her Majesty The Queen, the Head of state of Solomon Islands.

I further order the Speaker of the National Parliament to summon the National Parliament to convene on Monday 31st October, 1994 to elect a new Prime Minister.

This order became effective immediately.

Given under my hand this 13th day of October 1994.

MOSES P PITAKAKA

Governor-General”

Shortly after the order had been issued and served on the incumbent Prime Minister, the terms of the order were then released to the media, for publicity to the nation of Solomon Islands. The reactions of the people of Solomon Islands may perhaps be described as mixed. For the more legal orientated, the question thrashed around was, whether the Governor General had the power to do what he did under the Constitution, the supreme law of this nation, and if not, whether, he had some other reserve powers to validate the actions that he had taken. This subsequently formed the gravamen of the list of questions raised by the learned Attorney General, for determination in an originating summons, filed on the 17th of October, 1994 before this Court. The questions posed read as follows:

(i) Whether it is lawful for the Leader of the Opposition to advise the Governor General to cause the Prime Minister to step down or otherwise remove him from office outside the floor of Parliament;

(ii) Whether it is lawful for the Governor-General to act on the advice of the Leader of Opposition to remove the Prime Minister from office outside the floor of Parliament;

(iii) Whether it is lawful for the Governor-General to remove the Prime Minister from office on the basis that he has lost majority support outside the floor of Parliament;

(iv) Whether it is lawful for the Governor-General to unilaterally direct the Speaker of the National Parliament to convene Parliament as directed by the Governor General in whatever form;

(v) Whether it is lawful for the Governor-General to direct Commissioner of Police to execute warrant signed and issued on Thursday 13th October, 1994.

On Friday the 21st of October, 1994, this Court referred the questions of law posed in the originating summons to the Court of Appeal, who happened to be in session in that week. This was done pursuant to section 14 of the Court of Appeal Act, 1978. On the same date, the learned Justices of Appeal convened to deliberate over the questions of law referred. Their judgment was delivered on the next day, the 22nd of October, 1994.

Apart from the determinations of law raised in the originating summons, the learned Attorney General also sought declarations as follows:

“(i) Moses Puibangara Pitakaka, Governor-General of Solomon Islands, has no power under the Constitution to lawfully remove Francis Billy Hilly from Office as Prime Minister outside the floor of Parliament;

(ii) the Warrant signed and issued by the said Moses Puibangara Pitakaka as Governor-General dated 13th October, 1994 and served upon Francis Billy Hilly as Prime Minister on the morning of Thursday 13th October, 1994 is ultra vires the powers of the Governor-General under the Constitution and is therefore null and void.

The facts in the case are essentially not in dispute. The affidavit of Francis Billy Hilly filed on the 17th October, 1994, the affidavit of Frank Ofagioro Kabui filed on the 18th of October, 1994, and the affidavit of Moses Puibangara Pitakaka, filed on the 22nd of October, 1994 are all in agreement as to the events leading up to the order of removal issued by the Governor-General.

The crucial issues before this Court therefore is whether, in the light of the Court of Appeal’s ruling, the declarations prayed for should be allowed or not. The second issue to be determined is simply, the question of costs.

The pertinent question of law raised in the originating summons which directly impinges upon both declarations sought is paragraph (a) (iii) of the Originating Summons. This was the question asked: ‘whether it is lawful for the Governor General to remove the Prime Minister from Office on the basis that he has lost majority support outside the floor of Parliament?’

Some confusion I think has been engendered by the answer of the Court of Appeal, which read: “Unnecessary to answer”. What did this mean? Was it unnecessary to answer, because the answer to that question was too obvious to mention, or was it unnecessary because in the circumstances it was inappropriate?

Two opposing and quite attractive arguments have been posed before this court.

The learned Attorney General’s approach commences with the relevant provisions of the Constitution and matching them with the relevant parts of the Court of Appeal’s judgment.

Mr Teutao’s approach commences with the Governor General’s order of the 13th October, 1994, and matching that with the relevant provisions of the Constitution and the relevant parts of the Court of Appeal’s judgment.

I prefer the first approach, because at the end of the day, it is what the Constitution, the Supreme law of this nation says, that must prevail with respect, over and above what the Governor General’s order might say, and even over and above what the Court of Appeal and this Court may say. The law remains constant, but orders vary and change according to the requirements and circumstances of each case.

Secondly, the relevant parts of the judgment of the Court of Appeal must be read in the context of the whole judgment.

The applicable provisions of the Constitution are not in dispute. They are; section 33(1) and schedule 2 to the Constitution, which deals with the set up of the Office of Prime Minister, and the procedure for electing a new Prime Minister; section 34, which deals with the question of a motion of no confidence, and at sub-section (3), other instances in which the Office of the Prime Minister shall become vacant; and section 72(1), which deals with the function of the Governor General to appoint the place and time, when each session of Parliament shall commence.

What is in dispute is the correct interpretation and effect of what the Court of Appeal has stated in its judgment.

For purposes of analysis, I will start at page 3. In the second paragraph, the Court of Appeal stated:

“The central feature of the structure of government under the Constitution of Solomon Islands is majority rule. The Prime Minister is elected by the procedure set out in Schedule 2, a procedure conducted by the Governor General to identify the candidate with an absolute majority. He is not, as in many countries including the United Kingdom, selected by the Head of State. Should he lose the support of the majority of the Parliament he may be defeated on a motion of no-confidence passed by an absolute majority of votes whereupon the Governor-General is required to remove him from Office: section 34.”

The first important point to note about this quotation is the distinction it draws with other countries in how a Prime Minister in Solomon Islands is elected by Parliament as opposed to being selected by the Head of State. The suggestion or hint that this distinction seems to portray is that usually, the person who hires you, is the person who also usually has the right, or the power, to fire you. So if Parliament elects the Prime Minister, then it is Parliament that is the lawful person or body to dismiss the Prime Minister, as provided for in section 34 of the Constitution. This appears to be the brunt of the learned Attorney General’s submission as commented upon by the Court of Appeal at page 6 of their judgment, first paragraph. However, I raise this as an aside, conscious of the comments of their lordships at the same page, that this question can await another day.

At page 4, second paragraph, the Court of Appeal again highlights the distinctive electoral procedure set out in schedule 2 of the Constitution, in the election of a Prime Minister, as opposed to the British parliamentary practice, of identifying the Prime Minister by his leadership of the majority party or political grouping in the House of Commons.

At the bottom half of page 4, whole of page 5, and top of page 6, the Court referred to the writings of Professor Colin Howard in his book titled “Australian Federal Constitutional Law” (1985) (3rd Edition), in which the learned author described the circumstances, (which are quite similar to the facts of this case) in which the Governor-General is able to dismiss the Prime Minister. At the bottom half of page 6 of the judgment the Court of Appeal however stated:

“What differentiates Australian Constitutional practice from that of Solomon Islands is that dismissal of a Prime Minister by the Governor-General is provided for only in section 34, that is, after this defeat on a motion of no-confidence. The Attorney-General argues strongly that this is an exclusive provision. Whether this proposition is right for all circumstances can await another day.”

The above quotation needs a little bit of elaboration to be able to appreciate fully the true import of what has been stated, because it is my view that therein lies the crucial answer to the crucial question of law raised, and goes to answer in part the question, whether the declarations sought in paragraphs B (i) and (ii) should be granted or not.

The crucial submission of the learned Attorney-General as I understand it, is that section 34 of the Constitution sets out in black and white, all the circumstances within which the Office of the Prime Minister becomes vacant:

(i) This is where a successful motion of a resolution of no confidence in the Prime Minister is passed by Parliament by an absolute majority of the votes of the members of Parliament and has been removed by the Governor-General;

(ii) immediately after a general election, when the members of Parliament meet to elect a Prime Minister in accordance with the provisions of schedule 2 to the Constitution, (section 34 (3)(a))’

(iii) if he ceases to be a Member of Parliament, other than a dissolution of Parliament (section 34 (3) (b)); and

(iv) if he is elected as Speaker or Deputy Speaker, (section 34 (3) (c)); and

(v) if he resigns such office by writing under his hand addressed to the Governor-General (section 34(3) (c)).

The submission of the learned Attorney-General is that, that list in section 34 is exhaustive. Apart from section 34, there is no other provision in the Constitution whereby the Governor-General is authorised to do what he did in the circumstances prevailing as at the 13th of October, 1994. In other words he had no power under the Constitution, including any reserve powers that he may claim to be possessed with, to remove the incumbent Prime Minister from Office.

The answer of the Court of Appeal to this proposition is very clear. It must await another day! What does this mean? It simply means indirectly that the learned Judges of the Court of Appeal had purposely declined to make any ruling on the crucial question of law posed before it. But before hasty criticism is made, one needs to ponder carefully what was said in the next sentence and the subsequent paragraph in page 6. (I note that there may be discrepancies in the page numbers and paragraphs quoted because the computer printer appears not to be printing consistently on each page.)

The very next sentence reads:

“What at least is established, in our judgment is that a Prime Minister who hangs onto office while conceding that he has no majority is in no position to insist that the Governor-General’s functions can only be exercised on his advice.”

To get a proper understanding of the meaning of the above sentence, it must be related to the provisions of section 31(1) of the Constitution, in the first part, which reads:

“In the exercise of his functions under this Constitution or any other law, the Governor-General shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.....” (Note in particular the words ‘In the exercise of his functions’ and the word ‘shall’).

One of the clear functions of the Governor-General is as spelled out in section 72(1) of the Constitution.

Now coming back to the sentence quoted in the judgment of the Court of Appeal at page 6, it is also vital, to be able to get a proper understanding of it, to read it together with the very next paragraph in the judgment. It commences as follows:

“Section 72 (1) vests in the Governor-General the function of appointing the place and time of the holding of sessions of the Parliament.”

Now, keeping in mind what had been said in the preceding sentence in the preceding paragraph, what the Court of Appeal was saying in effect was, (and I repeat what they said, but with my additions in brackets);

“What at least is established, in our judgment is that a Prime Minister who hangs onto office while conceding that he has no majority is in no position to insist that the Governor-General’s functions (specifically, the function vested in the Governor-General of appointing the place and time of the holding of sessions of the Parliament) can only be exercised on his advice.” (Underlining mine).

The above is clearly what has been established in the judgment of the Court of Appeal. The Court then continued:

“His Excellency has ordered the Speaker convene the National Parliament on Monday 31 October next. (Full stop)” It does not continue on to say “to elect a new Prime Minister” as stipulated in the order of the Governor-General. That is perfectly correct, for the simple reason that he does not have the power under section 72(1) to dictate to Parliament what business and order of business is to be deliberated upon by the House. Section 72(1) simply gives him the power to convene Parliament at such time and at such place as he may by proclamation appoint as published in the Gazette, or as has been endorsed in the Court of Appeal’s judgment, by way of an order directing the Speaker to convene Parliament on the 31st October, 1994.

I do note however that in the circumstances where the office of the Prime Minister had become vacant, then it is a matter of fact that on the first sitting of Parliament, it will have to elect a new Prime Minister. I do note also that the view of the Governor-General is that the Office of the Prime Minister had become vacant as a result of his order.

What was therefore meant by the Court when it said that: “In the circumstances there can be no doubt about the validity of that order.” The answer is found in the preceding sentence, in which the Court had stated:

“His Excellency has ordered, the Speaker convene the National Parliament on Monday 31 October next.”

If, as contended by Mr Teutao that the order in toto was the order which the Court had stated was valid, then that must necessarily be based on the assumption that the order of removal of Mr Hilly was also valid, lawful and proper. However, we have seen in the preceding paragraph that the Court of Appeal had declined to make a ruling on that issue. The question therefore as to whether Mr Hilly had been lawfully removed remains unanswered. It does not follow then in my view to assert that the order in toto was what was declared to be valid by the Court of Appeal. The contextual interpretation of those statements, favour more the view, that it was simply the summoning of Parliament to meet on the 31st of October, 1994, that was declared by the Court of Appeal to be valid.

One of the submissions raised by Mr Teutao before this Court relates to the way in which question (iv) was worded, and the answer of the Court to that question.

“Whether it is lawful for the Governor-General to unilaterally direct the Speaker of the National Parliament to convene Parliament as directed by the Governor-General in whatever form?”

Mr Teutao seeks to submit that the term ‘in whatever form’ must mean the form in which the order had been couched, specifically, that Parliament be convened to elect a new Prime Minister, which would imply that the sacking had been valid. And the answer of the Court was “yes, in the circumstances which obtained in 13 October, 1994”. That answer he says must imply that the whole terms of the order was valid. This is quite an attractive argument. However, it has been made out of the context on which the court had stated emphatically and clearly, what the functions of the Governor-General as specifically provided for under section 72(1) of the Constitution, were.

Section 72(1) of the Constitution simply gives the Governor-General power to summon Parliament on the advice of the Prime Minister, but in the extreme circumstances prevailing on the 13th of October, 1994, he was no longer obliged to do so. It does not give him the power to sack the Prime Minister. To say that section 72(1) of the Constitution gives the Governor-General power to sack the Prime Minister is anathema to the Constitution. On that simple analysis, it cannot be used to support the contention that the Prime Minister therefore had been deemed sacked, pursuant to the order of the Governor-General made under section 72(1) of the Constitution.

This view is supported strongly by the opinion of the third member of the Court of Appeal, Williams JA. In the second to the last paragraph of his Lordship’s judgment, he states:

“In the circumstances in my view the Governor-General has the power under section 72 of the Constitution and Standing Order 7(3) to direct that Parliament convene on a specified date. If that is not the correct interpretation of those provisions, I would be prepared to hold that he was entitled to do pursuant to a reserve power vested in the Governor-General. If a Prime Minister without majority support in Parliament sought to continue governing without convening Parliament I am of the view that the reserve prerogative powers would authorise the Governor-General to direct that Parliament be convened.”

What the Court of Appeal clearly saw as the confusing factor in the whole episode was whether the Governor-General had the power to summon Parliament so that the resolution of a motion of no confidence can be raised in the House against the Prime Minister. Had the Governor-General known that in the circumstances prevailing specifically, on the 13th of October, 1994, but which had been dragging on for sometime, as early as the beginning of the month, then he could perhaps have invoked his powers under section 72(1) to summon Parliament at an earlier date to solve the crisis early.

What is clear from his Lordship’s judgment is that, nowhere does he say or even hint, that the sacking was valid, lawful and constitutional. He also did not say that the power under section 72(1) included the power to sack. There was no mention too that the convening was for the purpose of electing a new Prime Minister. The omission is not by coincidence. It simply reflects in my view the correct construction of the functions of the Governor-General as specified under section 72(1) of the Constitution.

This then raises the question as to what was meant by the Court when it stated immediately after:

“The question whether the first plaintiff has been validly removed from office would appear to be academic.”

Why would it appear to be academic? The reason in my view is because there is an answer or solution within the express provisions of the Constitution which the Court of Appeal was satisfied with, will meet the political impasse between the parties, head-on. That solution is as has already been outlined, that the Governor-General had the power in the circumstances, to summon Parliament, contrary to the advice of the Prime Minister under section 72(1) of the Constitution. What this simply meant is that by having Parliament called for session, the political crisis can then be solved in the floor of Parliament, by way of a motion of no confidence on the incumbent Prime Minister. This is why in the very next sentence the Court stated:

“If he remains in office it is as a Prime Minister who has forfeited his right to advise the Governor-General and this crisis will be solved where the Constitution intends it to be solved-in the National Parliament.”

This brings me to raise the question, what were the circumstances which obtained on the 13th of October, 1994? These were:

(i) The Prime Minister no longer had the support of the majority of the members of parliament, and despite conceding this fact; he

(ii) refused to resign and convene parliament as soon as possible, despite being asked to do so; and

(iii) after being advised Governor-General that he would no longer take advice from him (the Prime Minister), he still refused to resign.

In those circumstances, under section 31(1) of the Constitution, which required that in the exercise of his (Governor-General’s) functions, he shall act in accordance, with the advice of the Prime Minister as to when and where Parliament shall be convened, he, the Governor-General was no longer obliged to accept the advice of the Prime Minister as to when parliament shall be convened, which advice had been to convene Parliament on the 18th of November, 1994. Those peculiar circumstances necessitated the actions of the Governor-General to direct that Parliament be convened at an earlier date, on the 31st of October, 1994 in defiance of the Prime Minister’s advice. That was the only order that the Court was prepared to say in its judgment was valid. It did not say that the removal of Mr Hilly from Office was valid.

The final sentence of the last paragraph in page 6, is also of equal importance. The correct interpretation of it can only be obtained if it is read in the context of what had been stated earlier on. It reads:

“If he remains in office it is as a Prime Minister who has forfeited his right to advise the Governor-General and this crisis will be solved where the Constitution intends it to be - in the National Parliament.”

Let me break down this sentence into several parts. The first part is: “If he remains in Office”. It is common knowledge, and is a fact that has not been disputed, (though I do note that the Governor-General might think otherwise,) that the incumbent Prime Minister has not resigned, and therefore as far as he is concerned, he still remains in Office. Bearing in mind that the Court of Appeal had categorically refused to make a ruling as to the lawfulness of the actions of the Governor-General in purporting to remove Mr Hilly from Office, the second part of the sentence goes on to say, “it is as a Prime Minister who has forfeited his right to advise the Governor-General”. So by remaining in Office and refusing to resign as would normally have been expected, he remains in Office, as a Prime Minister whose advice may no longer be accepted and acted upon by the Governor-General. It however, does not necessarily follow that in those circumstances, the Governor-General was entitled to dismiss or remove the Prime Minister, or the fact that he had purported to do so, was valid. He may have the power to do that, or he may not. The Court of Appeal has simply refused to rule on that question as being, unnecessary. I will say something later, on why I believe that the Court of Appeal ruled in that manner. But coming back to the third part of the sentence, which reads, “and this crisis will be solved where the Constitution intends it to be solved - in the National Parliament.”

What crisis is being referred to by their Lordships in their judgment? Lets take first the interpretation propounded by Mr Teutao. Assuming that when the Court stated that the order directing the Speaker to convene Parliament was valid, and that it meant that Parliament was to be convened for the sole and specific purpose of electing a new Prime Minister, and that therefore impliedly the Court was saying that the sacking of the Prime Minister on the 13th of October, 1994 was valid, what crisis then was the Court of Appeal referring to that will be solved in the National Parliament. If the sacking of the 13th of October, 1994 was valid, then it seems that the crisis is basically over. All that Parliament will do when it convenes on the 31st of October, 1994 is to elect a new Prime Minister in accordance with Schedule 2 to the Constitution. There would appear to be no crisis to solve on the 31st of October, 1994.

Rather, it is my view that the crisis referred to within the contextual meaning of the preceding sentences, paragraphs, and the totality of the judgment, is the current crisis that still subsists; where the Prime Minister has refused to resign in circumstances where he ought to resign, to pave the way for schedule 2 to the Constitution to be activated. In those circumstances, the proper course of action to be taken by the Governor-General is to summon Parliament to pave the way for a motion of no confidence to be moved against the Prime Minister as expressly provided for by the Constitution, and to allow Parliament to solve the political crisis, where: “the Constitution intends it to be solved.”

The assumption or the interpretation propounded by Mr Teutao that the ruling by the Court of Appeal was to validate the order of the Governor-General in toto, with respect to the direction to the Speaker of National Parliament, in order to be valid, must necessarily be subject to the validity of the order to remove Mr Hilly from office. But all that has been submitted in support of that proposition is that it is to be implied from the ruling of the Court of Appeal. That is not good enough. The foundation must be firm, before anything else can be built on it, and not merely based on some implied statements or conclusions. The order in toto to the Speaker should stand on the initial order to remove the Prime Minister and not vice versa.

However, what is very clear, as earlier stated is that, the learned Justices of Appeal have declined to make a ruling on the validity of the sacking of Mr Hilly from Office.

I will now turn to address the question as to what in effect was meant by their Lordships when answering the crucial question of law posed, (question (ii)), as: “Unnecessary to answer.”

The answer lies in my view in how the Court of Appeal and this Court have consistently stated in previous cases, when dealing with questions of law arising from the interpretation of the Constitution, that the Constitution is a workable, practical and operable document. Where there is a workable and practical solution expressly provided for in the Constitution, then it is unnecessary for the Courts to get tangled up in lengthy treatises on the law or mere academic pursuits.

The Court of Appeal had identified a mechanism within the express provisions of the Constitution, in which, a practical solution to the political impasse can be solved. And true to the approach that it had consistently upheld and followed, in the circumstances, it was unnecessary for it to say whether the actions of the Governor-General in sacking the Prime Minister were lawful under the Constitution, or under whatever reserve powers that he may possess as the representative of Her Majesty, the Head of State of Solomon Islands. That million dollar question must remain unanswered until such time as the Court should deem it appropriate to consider, if ever that opportunity will again arise.

Where does this leave the actions of the Governor-General in purporting to sack the incumbent Prime Minister from office, and which it seems, he firmly believes was valid, lawful and constitutional?

Although, the questions as to its validity, lawfulness and Constitutionality must remain in suspense, the questions as to its effectiveness it seems in my view may be noted, hopefully for purposes of clarification. I do note that I have to be wary in what I say because it may be interpreted wrongly. For instance, if I say that the order of removal is ineffective against a stubborn Prime Minister, as a result of the way the Court of Appeal had ruled, that does not necessarily mean, that the order was invalid, unlawful or unconstitutional. All it means is that the order is neither here, nor there, and if that still causes confusion, then we can simply conclude that both are entitled in the circumstances of this case, and from the way the Court of Appeal has ruled, to take the stance or the positions that they have stood on, since the 13th of October, 1994 until the present time, and right up until the 31st of October, when Parliament can then convene to solve the crisis on a vote of no confidence as expressly provided for under the Constitution. If the above is still confusing, then let me put it in another way. The actions of Mr Hilly in refusing to resign in the circumstances prevailing at the beginning of the month of October, 1994 was unusual, unexpected perhaps un-political, and may be unconstitutional. It was therefore most natural for the Governor-General to be agitated by that back -pedalling. His subsequent actions however, in purporting to sack the incumbent Prime Minister as far as the Court of Appeal was concerned, were unnecessary, because there is clear provision in the Constitution in which the Governor-General had the requisite power to facilitate the solution of the crisis. And now, that that power had been invoked pursuant to the order to convene Parliament on the 31st of October, 1994, it must be allowed to take its normal course as provided for by the Constitution. So where the incumbent Prime Minister has refused to step down in the interim period, then the order for his removal must lie where it has fallen.

In short, what the Court of Appeal is saying is, now that that matter will be dealt with by Parliament; let Parliament sort the matter out. If the Prime Minister remains in office, then he does so as a Prime Minister who has forfeited his right to advise the Governor-General. He however still remains in office if he refuses to resign, as the Prime Minister until he has been voted out by Parliament on the 31st of October, 1994 on a resolution of no confidence, as expressly provided for under section 34 of the Constitution. If there have been unpleasant consequences that have arisen from the Constitution, then it is incumbent upon Parliament to make them pleasant.

The only declaration therefore that I feel at liberty to make in view of the ruling of the Court of Appeal is that in the circumstances of this case, if Francis Billy Hilly, the incumbent Prime Minister refuses to resign before the meeting of Parliament on the 31st October, 1994, then he remains the Prime Minister in the terms described by the Court of Appeal, until he is voted out on a motion of no confidence.

Apart from the above, any other declarations sought including the declarations sought under paragraph B (i) and (ii) of the Originating Summons, in my view would not be proper to make.

On the question of costs, since the parties have appeared in their Official capacities, the appropriate order is to make no order for costs. However, it is obvious that Government will have to foot whatever costs there are.

(A.R. Palmer)
JUDGE