Guadalcanal Provincial Assembly v Minister of Provincial Government and Rural Development [1996] SBHC 94; HCSI-CC 309 of 1996 (16 December 1996)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.309 of 1996

GUADALCANAL PROVINCIAL ASSEMBLY

-v-

MINISTER OF PROVINCIAL GOVERNMENT AND RURAL DEVELOPMENT

High Court of Solomon Islands
(Palmer .J)
Civil Case No. 309 of 1996

Hearing: 13th December, 1996
Ruling: 16th December, 1996

R. Teutao for the Plaintiff
Attorney-General for the Defendant

PALMER J: This matter was listed for hearing for 21st of November, 1996, but the Court was not available to hear it. A new date was fixed for 11th of December, 1996 but the Attorney-General was not available then, due to commitments with the Court of Appeal which was sitting on that date. The matter eventually came up on 13th December, 1996, but a preliminary matter has been raised by the learned Attorney-General pursuant to Order 17 of the High Court (Civil Procedure) Rules, 1964. The learned Attorney-General submits that the Originating Summons and the Amended Summons filed on 21st October, 1996 and 22nd November, 1996 respectively, raised issues pertaining more, to powers of Parliament rather than that of the Minister for Provincial Government. He submits therefore that if the name of the Minister for Provincial Government is not struck out as the wrong respondent, then at least Parliament, Respondent as an independent body should be joined as the First Respondent.

Mr Teutao for the Defendant argues that it is not necessary to join the Speaker of Parliament since the powers of the Speaker are not in issue in this application and even if they had been in issue, it is now too late and is nothing more than water under the bridge.

Order 17 Rule 4 provides inter alia that:

“All persons may be joined as defendants against whom the right to any relief is alleged to exist, severally, whether jointly, or in the alternative.”

Rule 11 however gives the court discretion to join a party “....who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter....”

Rule 11 of Order 17 in my respectful view is more relevant in determining the question of joinder of parties in this case.

As to the arguments raised by Mr Teutao, I agree with his first argument that the powers of the Speaker of National Parliament are not directly in issue in this application. As to the second argument raised however, if the yardstick used is water under the bridge, then the Honourable Minister for Provincial Government could equally say that whilst he was responsible for bringing the legislation into Parliament as a bill, once it got into Parliament, it became the responsibility of Parliament in bringing it into law, and not his alone. He could therefore raise the same argument that his powers whatever they be are also nothing more than water under the bridge now because it was not him who passed the bill into law but the Honourable Parliament of Solomon Islands.

After carefully considering the issues raised in the Originating Summons, and the Amended Summons, it is clear to me that the issues raised relate directly to the powers of Parliament to enact legislation and may impinge upon the doctrine of sovereignty of parliament. And this is despite the fact that the relief sought from this court is a declaration to the effect that the Provincial Government Act of 1996 is ultra vires and inconsistent with the Constitution. In that respect, the Attorney-General in this case has been rightly joined.

The application seeks to argue that when enacting legislation, Parliament is obliged to take into account the foundational principles contained essentially in the Preamble to the Constitution as read with sections 59(1) and 114(2) of the Constitution. Had it done that it would not have passed this legislation. The application however goes a step further to argue that in failing to take those foundational principles into account, Parliament had done the impossible in enacting legislation which was not within its powers to do and which was contrary to the terms of the Constitution.

These with respect are very serious issues and the implications possibly far-reaching. It is vital therefore; that not only the right persons are joined but those “....whose presence may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved”, are given the opportunity to argue and defend their interests. In this case, where the powers of Parliament, that is, the constitutionality of its actions are directly challenged, it is only fair and just that Parliament be given the opportunity to be heard if it so desires. I am satisfied it is necessary to join the Nationa1 Parliament of Solomon Islands in this application. The crucial question here is who should represent the interests of Parliament? If not the Honourable Speaker of Parliament, then who? One may argue that the Honourable Prime Minister and the Honourable Leader of Opposition should be joined. Unfortunately, that would not necessarily be in the interests of Parliament as an independent arm of Government, bearing in mind that they may have opposing interests in Parliament. The next best person to represent the interests of Parliament fairly and objectively in my view is non other than the Speaker of Parliament. Whether he will enter an appearance and be heard is another matter. At least he should be given opportunity to do so if he desires.

As I pointed out in the preliminary hearing of this application, this is the Applicants case and he should have thought carefully about the issues raised and as to who to join in this case as Respondents. The learned Attorney-General has correctly pointed out a relevant defect which must be corrected before this application can proceed. This case with respect is not ready for hearing today The Speaker of Parliament acting for and on behalf of the Parliament of Solomon Islands should be joined as the First Respondent in this application. The Originating Summons and Amended Summons accordingly will have to be amended and service effected on the Speaker of Parliament.

ORDERS OF THE COURT

1. Order that the Originating Summons and Amended Summons filed on 21st October,

1996 and 22nd November, 1996 respectively be amended as follows and served on the Speaker of Parliament with the usual requirement of 8 days to enter appearance:

(a) The Speaker of Parliament be joined as First Respondent;

(b) The Minister of Provincial Government be joined as the Second Respondent.

2. The matter to be listed for hearing by arrangement with all respective Counsels and the Court thereafter.

3. Costs in the cause.

Albert R.Palmer
The Court.