Hunuehu v Attorney-General [1996] SBHC 43; HC-CC 067 of 1996 (29 August 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 67 of 1996

EDWARD HUNUEHU

-v-

ATTORN GENERAL,

THE SPEAKER OF NATIONAL PARLIAMENT

Before:a, ria, CJ

Hearing: 10 July 1996 - Judgment: 29 August 1996

Counsel: A. Nori for the Plaintiff; P. Afeau for the First Defendant; F. Waleilia for the S Defendant

MURIA CJ:

Before the Court is an application by the Honourable Edward Hunuehu, the Member of Parliament for East Are-Are constituency, challenging the decision of the Honourable Speaker of the National Parliament ("Parliament") refusing to adjourn Parliament following objection by Mr. Hunuehu that Parliament lacked quorum when it debated the Mamara - Tasivarongo - Mavo Development Agreement Bill 1995. The application is by way of an Originating Summons and it seeks a number of declarations from the Court, namely:

1. A declaration that the sitting of the National Parliament on 21st day of December 1995 lacked a quorum.

2. A declaration that the Second Defendant acted unconstitutionally when he refused to adjourn Parliament following objection by the Plaintiff that there was no quorum.

3. A declaration that the absence of quorum from the sitting of the National Parliament on 21st day of December, 1995 renders the subsequent passage of the Mamara-Tasivarongo-Mavo Development Agreement Bill, 1995 unconstitutional and therefore void;

4. An order that the First and Second Defendants meet the costs of this application."

The grounds in support of the application are set out in the affidavit of the plaintiff sworn and filed on the 29 February 1996.

Factual Background

On 20 December 1995, the Mamara-Tasivarongo-Mavo Development Agreement Bill 1995 ("the Bill") appeared on the Notice Paper of Parliament. The next day, 21 December 1995, the Bill was presented by the Honourable Minister of Land and Housing to Parliament for the second reading. Having then moved the Bill, the members of Parliament proceeded to debate it.

The first member to speak was the Member for Aoke/Langa Langa, Mr. Francis Saemala who raised a point of order as to the requirement that the report and recommendations made by the Bills and Legislation Committee laid on the table as Paper No. 51 of 1995 regarding the Mamara -Tasivarongo-Mavo Development Agreement Bill should have been first considered by Parliament before considering the Bill itself. Standing Orders 17 and 18, said Mr. Saemala, should be followed before Parliament could be asked to consider the Bill but in this case the procedure under those provisions had not been followed. That, he said, was not right.

Another member of the Bills and Legislation Committee, Mr. Michael Maina who is the Member of Parliament for Temotu Nende also spoke in support of the concern raised by Mr. Saemala. He, although sympathised with the position in which the Government found itself with the Bill, also felt strongly that the Committee's recommendations should be put to Parliament first.

The next member to speak was the plaintiff. His concern at this stage was on the question of quorum. He raised the objection that there was no quorum present and so the Bill should not be debated. It would be a disservice to the people of this nation to have such a very important Bill considered by parliament when it lacked quorum, he further added.

Following that objection, the Honourable Speaker suspended sitting at 10.30 am. Parliament again resumed about 20 minutes later, that morning.

When Parliament resumed the plaintiff, again raised the point that there was no quorum and that the debate on the Bill should not proceed. After an interjection from the Honourable Minister of Foreign Affairs and Deputy Prime Minister, Mr. Danny Philip, the plaintiff reiterated that he was raising a constitutional point.

Other members also spoke on the plaintiffs objection. The Honourable Speaker then ruled that despite section 67 of the Constitution, section 68 allowed Parliament to proceed and debate and pass the Bill. The Honourable Speaker allowed the debate on the Bill and the debate then proceeded.

The plaintiff, when he came to take his turn on the debate reiterated his objection on the point of lack of quorum. Not only did he do that but he also announced his intention to take further actions should the Bill be passed.

Throughout the debate on the Bill Parliament never had a quorum. The Bill was eventually passed on the voices on the Third Reading at about 5.00pm the same day.

True to his words the plaintiff has now brought these proceedings seeking declaratory orders as mentioned earlier.

The issues

As the matter was argued, two primary issues emerged. The first concerns the interpretation of section 67 of the Constitution which reads:

"67. If objection is taken by any member of Parliament present that there are present in Parliament (besides the person presiding) less than half of all the members thereof and, after such interval as may be prescribed in the rules of procedure of Parliament, the person presiding ascertains that the number of members present is still less than half of all the members, he shall thereupon adjourn Parliament."

The rules of procedure of Parliament referred to are the Standing Orders of the National Parliament. The relevant one for the purpose of this case is Standing Order 12, which is as follows.

"12 (1) Any question as to the quorum of Parliament and of a committee of the whole House shall be determined in accordance with section 67 of the Constitution as supplemented by this order.

(2) For the purpose of section 67 of the Constitution, the interval after which the Speaker may ascertain the number of Members present shall be fifteen minutes (during which the Speaker may leave the chair) and if the speaker adjourns Parliament is pursuance of section 67, he shall do so without the question being put and the Assembly shall then stand adjourned to the next sitting day in accordance with order 9.

(3) If objections are taken under section 67 of the Constitution in committee of the whole House, paragraph(2) of this order shall apply, save that if the Speaker is satisfied that a quorum is not then present he shall leave the chair of the committee and Parliament shall be resumed prior to being adjourned in accordance with paragraph(2) of this order".

The plaintiff contended that section 67 establishes three important guiding principles on parliamentary procedure, in particular, on the conduct of business in Parliament when it lacks quorum. The three principles, submitted counsel, are that parliamentary business cannot be interrupted except by one of its members, not by the person presiding; that once a member raises quorum as an issue, that must take precedence over other businesses of the House; and that subject to the rules of procedure of Parliament, if quorum is not present, no business shall, be transacted.

The first defendant accepted the suggestion that section 67 stipulates a mandatory procedure to follow when the issue of quorum is raised. He added, however, that the Act passed can only be held null and void if section 67 is found to have been breached.

The second defendant did not argue against the point that when there is no quorum, section 67 requires the Speaker to adjourn Parliament but contended that all that the Court can do in a situation where the section 67 requirements have not been complied with is to declare that there was no quorum. That, he argues, is as far as it can be taken.

The second issue emerged from the argument raises the question as to the extent of the Court's power to declare a law passed by Parliament and assented to by the Governor-General invalid. The second defendant argued that notwithstanding any breach of section 67 the Court's discretion should be exercised in favour of the validity of the Act. Naturally the plaintiff insisted that the Act being passed following a breach of section 67 must be declared invalid.

Section 67 of the Constitution

It is convenient that I deal first with the interpretation of section 67 of the Constitution. Assuming for the moment that the plaintiffs contention that breach of section 67 must result in the invalidity of the Act is accepted, then it seems that the only matter left to be determined by the Court is that of the exercise of the Court's discretionary power. However, Mr. Waleilia of Counsel for the second defendant urged that section 67 must be interpreted so as to be consistent with section 59(2) of the Constitution and that the lack of quorum did not render the passage of the Act unconstitutional.

Section 59(1) empowers Parliament to make laws for "the peace, order and good government" of Solomon Islands. Subsection(2) provides that:

"The laws referred to in this section shall take the form of Bills passed by Parliament; and when a Bill has been passed by Parliament it shall be presented to the Governor-General who shall assent to it forthwith on behalf of the Head of State, and when such assent is given the Bill shall become law."

It is also worth noting section 68 of the Constitution upon which counsel for the second defendant strongly relies. That section provides:

"68. Subject to the provisions of the preceding section, Parliament shall not be disqualified from the transaction of business by reason of any vacancy in its membership, and any proceedings in Parliament shall be valid notwithstanding that some person who was not entitled to do so took part in those proceedings."

Mr. Waleilia argued that the spirit of section 68 must be borne in mind when interpreting section 67. To put Counsel's argument in its brevity, it is this: that lack of quorum is not fatal to the validity of the Act which became law when His Excellency the Governor-General assented to it.

It has been accepted by all parties that less than half of all the members of Parliament were present when the Bill was presented for debate at its Second Reading. It has also been accepted that objection had been raised by the plaintiff as to the lack of quorum and that the Speaker had ruled on the objection, allowing the debate on the Bill to proceed despite the lack of quorum.

No doubt the Speaker, in compliance with Standing Order 12 suspended the sitting for fifteen minutes. However, after that fifteen minutes interval, there was still no quorum but Parliament was not adjourned as stipulated by section 67 of the Constitution.

It must be accepted, as had been done in The Speaker -v- Danny Philip Civ. App. No. 5 of 1990 (CA), that in the proceedings of Parliament the Speaker's ruling on procedural matters is final and the Courts do not have jurisdiction to enquire into it further.

Where however there is a breach of the Constitution, the courts must have power to enquire into such a breach even into the internal proceedings of Parliament. See also the cases of Sanft -v- Fotofile [1987] LRC (Const) 247 and Siale -v- Fotofile [1987] LRC (Const) 240.

In the present case, section 67 provides for a constitutional mechanism whereby the Speaker, after being notified that less that half of all the members of Parliament are present, must ascertain whether a quorum is present in Parliament and he is required to adjourn Parliament if such quorum is not present.

Notably, however, the obligation on the Speaker to ascertain the presence of the required number of members and to adjourn Parliament if that required number is not present appears to be, by virtue of section 67, mandatory "if objection is taken by any member" of Parliament as to the lack of quorum. I agree with Mr. Nori that the language of section 67 does not say that it is mandatory for Parliament to have not less than half of all the members present before it can transact businesses. There must however, in my view, be occasions when important businesses are before the House and proper and effective debates are necessary on such matters. It is therefore in keeping with the principles of parliamentary democracy and of Parliament's constitutional obligation to make laws for "the peace order and good government" of Solomon Islands that a provision such as section 67 is enacted to accord a member the right, if not, the opportunity, to bring to the attention of the Speaker of the fact that less than half of all the members of Parliament is present to debate on an important matter, such as the Mamara-Tasivarongo-Mavo Development Bill as in this case.

In exercise of that right, the plaintiff in this case, raised the objection on the lack of quorum and having raised that, the Speaker was under obligation, so it is argued on behalf of the plaintiff, to comply with section 67. As we have seen in this case, the Speaker, having suspended the sitting for fifteen minutes interval, refused to adjourn Parliament as required by section 67. That is clearly acting contrary to the requirement of section 67 of the Constitution which requires the Speaker to adjourn Parliament after ascertaining that there is still less than half of all the members present in Parliament. Indeed Counsel for the first and the second defendants have not sought to argue to the contrary. The question then is what is the effect of that non-compliance? To that question I shall now turn.

The effect of breach of section 67

Before I consider the argument raised on the extent of the Court's power to declare a law passed by Parliament and assented to by the Governor-General invalid, it is preferable to consider first the effect of the breach of section 67 of the Constitution. This entails a consideration as to what construction should be placed on the words used in section 67.

As a general rule courts will normally interpret a statutory or a constitutional requirement as being imperative and requiring full compliance and will render invalid an action which is not taken in accordance with it. See Bribery Commissioner -v- Ranasinghe [1947] 2 All E.R. 788. There are, however, exceptions to this general rule, one of which is where a constitutional or statutory requirement may be interpreted by the court as directory and not mandatory. In such a case the action taken in breach of such requirement is not invalid. An illustration of such a position can be seen in Clayton -v- Heffron [1960] HCA 92; (1960) 105 C.L.R. 214.

The case just cited concerns the interpretation of section 5B of the Constitution of the State of New South Wales. Under that section it was provided that if the Legislative Council rejected or failed to pass a bill which had been passed by the Legislative Assembly, then after a free conference of managers from each House, the Governor could convene a joint meeting of both Houses at which the bill could be considered and passed. The Legislative Assembly passed a bill to abolish the Legislative Council but the bill was rejected by the Legislative Council which also refused to nominate managers to take part in a free conference with the managers nominated by the Legislative Assembly. Despite the Legislative Council's action the Governor convened a joint sitting of both Houses during which it was decided to submitted the bill to a referendum of electors. That decision was challenged on the ground that a free conference of managers as stated by the Constitution was a condition which had to be met before a joint sitting of both Houses could be convened.

The matter came before the High Court of Australia which decided that the requirement to hold a free conference of managers was not mandatory requirement which could render invalid what had not been done in accordance with it. Further the Court held that a requirement should be regarded as not mandatory but as directory as it relates to the performance of a public function and where great inconvenience would be caused to the public or a section of the public, if failure to comply with the requirement were to render invalid what had been done. As to the bill, the Court further stated that great inconvenience would be caused if the bill, when approved at the referendum and assented to by the Governor were held to be not a valid law because of non-compliance with the requirement as to a free conference of managers.

The argument by Mr. Nori in this case is that non-compliance with section 67 renders all the events following therefrom namely, the debate on the Bill, the passage of the Bill and subsequent assent to it by the Governor-General, void and are of no effect for want of constitutionality. Implied in that argument is the contention that section 67 is imperative upon the law-making process of Parliament. In my humble view, if this were to be the case, Parliament would soon find itself being subjected to the whim of individual member or groups of them and the operations of other provisions of the Constitution such as section 68, may well become redundant.

To follow Counsel's argument through it comes to this: that the Bill having been presented to Parliament could not be debated since only less than half of the members were present and if it was so debated then that was unconstitutional. Assuming the debate had been adjourned to the next day's sitting following the lack of quorum and on that next day sitting, and the plaintiff or another member objected again that there was present less than half of all the members, should the Speaker then against adjourn Parliament to the next sitting day? If he did, what if the absence of a quorum was repeated? It would not be too remote to contemplate a situation where the law making process of Parliament would be thwarted by self-interested individual member or group of members. Now, I am in no way suggesting that the plaintiff in this case is anything but genuine. In fact, the plaintiff is quite vivid in his concern of the need to have the Bill properly debated by ensuring that at least the quorum of the House be present to do that. As a representative of his electors he was entitled to ensure proper debate on an important Bill such as the Mamara-Tasivarongo-Mavo Development Agreement Bill which affects the national interest of the country. But the central concern in this case, must be the power of Parliament to make laws despite less than half of all the members were present.

Mr.Waleilia contended that non-compliance of section 67, in this particular case, did not invalidate the passage of the Bill into law. I feel this is where Mr. Waleilia's argument gains strength, especially, when one comes to consider also sections 68 and 71 of the Constitution.

I have already set out section 68 which makes it clear that Parliament cannot be disqualified from transacting business simply because of vacancies in its membership. A good example of such a situation is where, after a general election, petitioners successfully challenges the return of candidates for constituencies. There may be several of those constituencies which have to have bye-elections as a result of such petitions. In the meantime Parliament consisting of the other remaining members can proceed to meet and transact the businesses of the House. Further, the section also provides that Parliamentary proceedings shall not be invalidated just because some other person who was not entitled to take part in those proceedings did so.

Again even more telling in favour of Mr. Waleilia's contention is the provision of section 71 (1) of the Constitution which provides as follows:

"71 (1) Subject to the provisions of this Constitution, all questions proposed for decision in Parliament shall be determined by a majority of the votes of the members present and voting." (Emphasis is mine).

By that provision, all questions for decision in Parliament is to be determined by a majority of votes of the "members present and voting." In recognition, of course, of other matters requiring special attention under the Constitution, section 71 is made subject to those provisions of the Constitution which require particular number of votes before those matters can be determined. Section 61 of the Constitution is such a provision which deals with legislation to amend the Constitution. Subsection (2) of section 61 requires the support of not less than three-quarters of "all the members of Parliament" to pass a law which alters the provisions of section 61 itself, the provisions of chapters II, VII and IX, sections 46 to 58 (inclusive) and 108 and Chapter XIV. Subsection (3) provides for a two third majority of "all the members of Parliament" to alter any other provisions of the Constitution.

The Bill with which we are concerned in this case is a Bill for an Act of Parliament to ratify the Agreement made between the Government of Solomon islands, the Commissioner of Lands and Metropolis Pacific Ltd and to facilitate other related matters intended in the said Agreement. It was an Act to which section 71 of the Constitution applies which required the support of only the majority of the "members present and voting." It does not require the majority of all the members of Parliament to pass it.

The word "majority" is not defined in the constitution but it simply means "the greater number or part" as pointed out in The Governor-General -v- Solomon Sunaone Mamaloni and Solomon Sunaone Mamaloni -v- The Attorney General & The Governor General (1993) Civ. Appeals Nos.1 & 3 of 1993 (CA). For the present purpose, to pass the Bill all that was needed was "the greater number" of those members "present and voting."

Hence it would still be perfectly in order if Parliament were to proceed and pass the Bill even though less than half of the members of Parliament were present, as it did in this case, so long as a "majority" of the members "present and voting" supports it. The underlying principle being that Parliament can still meet and transact businesses irrespective of whether a quorum is present or not. The decision to do so belongs to Parliament alone, failing in line with the privileges of its own proceedings without interference by anybody including the Courts. As pointed out by Erskine May in his book, Parliamentary Practice, 21st Ed. at page 90:

".... the right of both Houses to be sole judge of the lawfulness of their own proceedings, or to settle, and depart from, their own codes of procedure is fully established. This is equally the case whether a House is dealing with a matter which is finally decided by its sole authority, such as an order or resolution, or whether, like a bill, it is the joint concern of both Houses. This holds good even where the right of its members or officers to take part in its proceedings depends on statute"

The learned author then goes on to make it clear so as to leave no doubt as to the undesirability of the Courts to enquire into the internal procedures of Parliament by referring to the case which Counsel for the plaintiff in this case helpfully cited namely, British Railways Board -v- Pickin [1974] UKHL 1; [1974] 1 All E.R. 609 where the respondent sought to challenge an Act of Parliament which he said was passed as a result of some fraudulent concealment of certain matters from Parliament and its officers and thereby misled Parliament.

The House of Lords found that the complainant was not entitled to go behind Parliament and examine its proceedings. On this, Lord Morris of Borth -v - Gest had this to say at page 620:

"We are not in the present case concerned with any question as to personal rights resulting from some contract or arrangement made between parties in relation to or in connection with some prospective legislation. The conclusion which I have reach results, in my view, not only from a settled and sustained line of authority which I see no reason to question and which should I think be endorsed but also from the view that any other conclusion would be constitutionally undesirable and impracticable. It must surely be for Parliament to lay down the procedures which are to be followed before a bill can become an Act. It must be for Parliament to lay down the procedures which are to be followed before a bill can become as Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed; it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark on an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively follow."

The argument by Mr. Waleilia in this case as already noted is that the most that this Court can do is to say that section 67 had not been complied with but the Court cannot go on and say that because of that non-compliance Parliament should not continue to sit to debate the Bill and that if it did, the resulting passage of the Bill into law was invalid. Firstly, on the strength of the authority of British Railways Board -v- Pickin, Mr. Waleilia's contention must hold good. For it is Parliament which decides the procedures to be followed before a Bill becomes an Act, whether those procedures were followed and whether it is satisfied that the Act should take the form and the wording set out in the Act. When the Speaker in the present case ruled that he would not adjourn Parliament but rather proceed with the debate of the Bill, he was in reality invoking the aged old right of Parliament to control its proceedings so as to debate the Bill and have it passed into law according to the procedures laid down under its Standing Orders. For the Court to say, to the effect, that Parliament has no right to do that because it did not adjourn after objection as to the lack of quorum would be a daunting attempt on the usurpation of the supremacy of Parliament, a task which this Court would be very reluctant to venture into.

Secondly under section 67, the absence of quorum does not prevent Parliament from transacting businesses, for the business is not terminated but simply stands over until Parliament next sits. Thirdly, I feel it is also important to note that the quorum referred to in section 67 does not mean that the number required (not less than half of all the members) have in fact to be in the chamber at all relevant times. If it were so, then the reference as to the interval of fifteen minutes required to be taken as prescribed by Standing Order 12(2) to enable members who are present in Parliament but not in the chambers to come into the chambers so as to enable the Speaker to ascertain if a quorum has been made or not, becomes meaningless. In any case as Erskine May pointed out in his Treaties On the Law, Privileges, Proceedings and usage of Parliament, Parliamentary Practice, 15th Edition, page 316-317:

"According to recent practice, however, the Speaker presumes that the House is made at the beginning of a sitting as at other times, unless his attention is drawn to the absence of a quorum."

Again this reference to the practice of the House of Commons is repeated in the 18th and 21st Editions of the learned author's work on Parliamentary Practice. The words "If objection is taken " used in section 67 of the Constitution can easily be transposed to mean the same thing as that stated by Eskine May when he used the words "unless his attention is drawn." For the effect of the two phrases is to draw the attention of the speaker as to lack of quorum.

In my judgement the failure by the Speaker to adjourn Parliament after objection had been raised as to the lack of quorum during the debate of the Bill, although breaches section 67 of the Constitution, does not affect the validity of the Bill being subsequently passed into law in accordance with the procedures of Parliament for enacting a bill into law and in accordance with the votes taken pursuant to section 71 of the Constitution. To adhere to the contention advanced by Mr. Nori that non-compliance with section 67 renders the process of the passage of the Bill and subsequent assent to it by Governor-General to become law invalid would be taking the effect of that provision too far. Further in my judgement, section 67 must be interpreted in a manner which advances rather than impedes the principle that Parliament is the supreme law-making body in Solomon Islands as recognised by the Constitution (See section 59).

Extent of Court's jurisdiction

The Court's jurisdiction in constitutional questions is provided for under section 83 of the Constitution which provides as follows:

"83. (1) Subject to the provisions of sections 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 11) 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 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 proceedings lawfully brought before the Court, to determine whether any provision of this Constitution (other than Chapter 11) 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.

(4) Nothing in this section shall confer jurisdiction on the High Court to hear or determine any such question as is referred to in section 52 of this Constitution otherwise than upon an application made in accordance with the provisions of that section."

The jurisdiction of the Court is clear under that section. That the High Court has power to enquire into and to ascertain whether a provision of the Constitution has been contravened even if that involves examination of the internal workings of the National Parliament and that had been established in this jurisdiction in The Speaker -v- Danny Philip (supra). This had also been recognised in Sanft -v- Fotofile (supra) and Siale -v- Fotofile & Others [1987] LRC (Const.) 240. These cases must be regarded as the exception to the common law rule as stated in Bradlaugh -v- Gossett (1884) 12 QBD 276 that Parliament has exclusive control over its internal proceedings and it is not subject to the court's control.

Nevertheless while accepting the exception to the common law rule as stated in Bradlaugh -v- Gossett, we must also accept the concept of separation of powers between the Legislature, Executive and Judiciary as the foundation of our Constitution. Just as Parliament will avoid interfering with the Courts, so also will the courts be most reluctant to interfere with the affairs of Parliament. It is with these principles in mind that when the Court is called upon to exercise its powers under section 83 of the Constitution, that it will only do so for the limited purposes of that provision and in such a way as to reduce any potential conflict between the two institutions. See the comments by Ward CJ in the High Court in Danny Philip -v- The Speaker CC24 of 1990.

It will also be observed that section 83 of the Constitution empowers the High Court to make a declaration and grant relief. The provision also empowers the Court to simply make a declaration as can be observed from subsections (2) and (3). This must be for a very good reason in that there may be cases where the making of a declaration alone is sufficient. This was what happened in Danny Philip -v- The Speaker (supra) where the applicant challenged the ruling of the Speaker of the National Parliament in respect of a vote of no confidence in the Prime Minister under section 34 of the Constitution. The only matter sought was a declaration without a relief that the Speaker's ruling was unconstitutional. The High Court observed that the making of a declaration alone in such a case, should be sufficient and it would be most unusual for the Courts to necessary to make a specific order for further relief, the position obviously accepted by the Court of Appeal in that case.

Mr. Waleilia's next argument is that, although a breach of section 67 of the Constitution had occurred, it would be undesirable to grant the consequential relief asked for by the plaintiff, that is, to declare the law passed by Parliament and assented by the Governor-General invalid. Not only that it would be undesirable but one may ask if the further relief sought by the plaintiff is a relief (remedy) "being available against any person in any proceedings in the High Court under any law for the time being in force in Solomon Islands" as contemplated by section 83 (3) of the Constitution.

The present action is brought against the Attorney General representing the Government and the Speaker who in effect represents Parliament. The validity of the assent to the Bill exercised on Her Majesty's behalf by the Governor-General has been challenged in this case. This is a public function exercised on behalf of the Crown by the Governor-General and performed in accordance with the Constitution. In short this case is clearly one which can be regarded as an action against the Crown. Although not specifically put by Mr.Waleilia, but I take it from his contention that the validity of the Bill having been passed by Parliament and assented to by the Governor-General cannot be impugned. I prefer to ask the question: would the consequential relief sought by the plaintiff of annulling the law passed by Parliament and assented by the Governor-General be a relief "being available" against the crown in these proceedings? As I said this action is brought against the Crown, it would be necessary to turn also to the provisions of the Crown Proceedings Act (Cap. 7).

"18. (1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Ordinance, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case any require:

Provided that:

(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the Court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and

(b) in any proceedings against the Crown for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof.

(2) The Court shall not in any civil proceedings grant any injunction or make any order against any officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown.

I am disposed to the view that under paragraph (a) of subsection (1) of that section, a declaratory relief is clearly available against the Crown and where in any proceedings it is established, it must be granted. That relief however is in a form of a declaration as to the rights of the parties.

In the present proceedings, as I have found, section 67 had been breached and that the plaintiff had a right to raised the issue that it was so breached by the Speaker. That I can see no difficulty in so holding.

Whilst this Court can exercise its discretionary power under section 83(1) and (2) and grant a declaration against the Crown, I am in considerable difficulty in accenting to any suggestion that this Court can equally proceed and to grant the consequential relief in the form sought by the plaintiff in this case. Section 18(2) of the Crown Proceedings Act makes it clear that the Court shall not make "any order" if the effect of making the order would be to give any relief which could not be made against the Crown.

To return briefly to section 67 again, that provision merely says that the Speaker shall adjourn Parliament if he ascertains there is no quorum and it does not prevent Parliament from debating a bill and passing it into law. Clearly the reason for that is that Parliament is entitled to absolute privilege over its internal proceedings. Whether Parliament should debate a bill or however it wants it to be debated or the form in which the bill is debated are all matters in the hands of Parliament. This court has no power to pronounce on the validity of what happens in the House. See Bradlaugh -v- Gossett (supra); Sanft -v- Fotofili (supra) and British Railways Board -v- Pickin (supra).

As pointed out in British Railways Board -v- Pickin, it is not only the contents of the speeches which cannot be called in question in the courts, but the very decision of the House itself, either in the process of passing legislation or on other matters of businesses of the House. In British Railways Board -v- Pickin as we have seen, the House of Lords unanimously held that the Courts could not "go behind" an Act after it was passed to question how it was passed by the Parliament.

Again, a part from the challenge as to the validity of the Act premised on the failure of the Speaker to adjourn Parliament after ascertaining that the quorum was not present, there has been no challenge as to the proper procedures which must be followed before the Bill could become an Act. The Bill having gone through the normal parliamentary process of enacting legislation, was passed and presented to the Governor-General who assented to it in Her Majesty's behalf on 22 February 1996. I take Judicial Notice of that fact.

In Australia, whether an action can still be properly brought challenging the validity of a Bill is yet to be clearly seen. In Cormack -v- Cope [1974] 131 CLR 432, a case concerning the challenge to a double dissolution of the House of Representatives and Senate. In that case Barwick CJ and Gibb J were prepared to say that the Court had such jurisdiction but that it should only exercise in an "unusual case" such as where no one would have locus standi to challenge its validity after enactment. On the other hand Menzies J and Stephen J thought that the Court had no such jurisdiction.

As to the lawfulness of presenting a legislative measure for the royal assent, Dixon J in the Australian case of Attorney General for New South Wales -v- Trethowan (1931) 44 CLR 394 said at page 426 to the effect that if it were possible to bring before an English court the question of lawfulness of presenting such a measure for the royal assent, the Court would be obliged to pronounce it unlawful. It must be clearly established now that following British Railways Board -v- Pickin (supra) if an official copy of what purports to be an Act of Parliament bearing the appropriate customary words of enactment, is produced, the Courts will almost certainly accept this as conclusive evidence that the measure is authentic and has been duly passed. See de Smith and Brazier, Constitutional and Administrative Law, 6th Ed. 84.

In the present case, the sealed copy of the Act contains the following words of enactment:

"The Mamara-Tasivarongo-Maro Development Agreement Act 1995.

(No. 17 of 1995)

Passed by National Parliament this twenty-first day of December 1995.

This printed impression has been carefully compared by me with the Bill passed by Parliament and found by me to be a true and correct copy of the said Bill.

Elizabeth Adresen (Acting Clerk to Parliament)

Assented to in Her Majesty's name and on Her Majesty's behalf this twenty-second day of February 1996.

Moses P. Pitakaka (Governor-General.)"

Thereafter it bears the appropriate customary words of enactment: "Enacted by the National Parliament of Solomon Islands" Those are the words of enactment as provided for under section 59(4) of the Constitution and they are conclusive evidence that the Act is authentic and duly passed. This Court cannot "go behind" the Act and question how it was enacted and became law.

Before I leave this judgement, I express in passing that the concern raised by Mr. Hunuehu as to the need for proper debate on important bills such as the one with which we are concern is a perfectly valid one. He being an elected representative of his people in Parliament would not be doing his duty, both morally and constitutionally, if he were to turn a blind eye to the lack of sufficient members being present in Parliament to debate this important Bill. By the same token, the concern raised by the Speaker of the lack of attendance by members who are elected by their people to represent them in Parliament to participate in the debate of this important Bill is also a valid concern. This case would not have been brought by Mr. Hunuehu to this Court had those elected representatives of their people fulfilled their constitutional and moral obligations by attending Parliament meetings. This is not a form of employment but an obligation recognised by the Constitution and accepted to be fulfilled by those who participate in the electoral process at General Elections.

Conclusion

In the light of what had been said in this judgement and on the authorities referred to, although a breach of section 67 of the Constitution had occurred when the Speaker refused to adjourn Parliament after ascertaining that there was still less than half of all the members present following an objection that there was a lack of quorum in Parliament, such a breach would not render unlawful or invalid what Parliament had done, namely, the enactment of the Mamara-Tasivarongo-Mavo Development Agreement Act 1995. In the circumstances it would not be within the proper exercise of the Court's discretion to grant the relief sought by plaintiff in paragraphs (1) and (2) of the Originating Summons. The order sought in paragraph (3) is not within the competence of this Court to grant.

The application is refused.

Costs

As to costs, I feel the plaintiff, although his application is refused should not be made to bear the consequences of bringing this matter to the attention of the Court. He genuinely raised the question of lack of quorum before the second defendant in Parliament and with the same genuineness he also raised it in this Court.

In those circumstances it is only proper in my view that each party to bear his own costs.

ign="center">ter">GJB Muria
CHIEF JUSTICE