18 On those two occasions I
tendered advice to the Gove- General as required as foas follows -
(1) The Prime Minister was not
requirethe Constitution to submit bmit a list of his supporters to the
Governor - General.
That would be determined on the floor of Parliament.
(2) Parliament was set to meet
on 12 October 1998 and there wasustification for an urgent gent special
meeting.
(3) There were no funds for
such special meeting of Parliament.
(4) The Acting Governor -
General hadded to have Parliament meet meeting on 12 October and he himself
had confirmed it
and there was no reason or justification to alter the
decision.
(5) A decision to call a
Special Meeting of Parlt just for a motion of no-c no-confidence in the
Prime Minister in these
circumstances will set a bad precedent for political
instability in this country.
(6) Must take into account the
nationalrest and that political stal stability at this time was crucial now
that the Government
was beginning to put things right by settling some of
country's huge debts, as well as undertaking the Structural Reform Programme
Exercise. Maintaining the confidence of our development partners was
crucial.
(7) The Government nued to
perform its duties and was not doing anythingthing unlawful.
It is also suggested that His
Excellency had ith Opposition Members since 15 August, 1998 and
cont continuously urged
him to convene a special meeting of Parliament earlier.
The implication here is that the decision by His Excellency to order
Parliament to convene on 8 September instead of waiting for 12 October 1998
as earlier agreed to by His Excellency The
Acting Governor-General, was the
result of the pressure from the Opposition.
The third occasion the Prime
Minister met with His Excellency was on 1 September. The Prime Minister
was called to
Government House in the afternoon on that day. After some
discussion on the political situation, His Excellency handed to the
Prime
Minister a letter dated 31 August 1998 in which His Excellency ordered by
proclamation that Parliament meet at
09.30 on Tuesday 8 September 1998 to
consider the motion of no confidence. Naturally the Prime Minister was very
disappointed
and displeased at the action taken by His Excellency as a
result of the circumstances described, the Government instructed
the
Attorney General to institute these proceedings.
At thring on 7 September
1998, Mr. Nori appeared and applied to have the Leader of Oppositposition joined
in as a party
to these proceedings. The Court refused that application on
the basis that the questions posed for the determination by the
Court arose
out of the decision made by His Excellency. No question had been asked of
the Court to determine regarding
any conduct or action taken by the
Opposition. The issues arising out of the action taken by His Excellency and
posed
in the questions raised in the Originating Summons are purely legal
issues which the presence of the Leader of Opposition as
a party would not
matter. The Court agreed that the Leader of Opposition is an interested
party in this case but in the
circumstances of this case, that interest does
not justify this Court making an order joining him as a party. These
proceedings
are not between the Government and Opposition. This case
challenges the lawfulness of the Governor-General's decision and will
be
decided on that basis.
Also on 7 September 1998, the
Court directed that His Excey be legally represented ined in these
proceedings, in view
of the Constitutional importance of the case, not only
to the public and the Government but also to the Office of the
Governor-General. As a result of that direction His Excellency has now been
legally represented in the matter.
As the hearing of this case
would not obviously be concluded bethe scheduled meeting of Paof Parliament
on 8 September
1998 as ordered by His Excellency, the Court bearing in mind
that one of the businesses or perhaps, the only business for the
meeting on
8 September 1998 is the Motion of no Confidence, directed that the said
Motion be not debated until the determination
of this case. It is obvious
that the Court does not intend to interfere with the lawful authority of
those persons empowered
to summon Parliament to meet. Hence the direction of
the Court is confined to the subject matter to be debated in Parliament
and
which is pending in Court.
It is to be noted that the
plaintiff has not raised any argument that His Excellency does not have the
power to summon
Parliament. Section 72(1) of the Constitution vests
the function of appointing the place and time of holding of sessions of the
Parliament in His Excellency The Governor-General.
This is now confirmed by
Francis Billy Hilly & Ors -v- Moses Puibangara Pitakaka & Another,
CC299/94(CA) and Governor-General of Solomon Islands -v- Francis Billy
Hilly & Ors,
Civ. App. 10/94
(CA). While possessing the power to summon Parliament, it must be exercised
in the light of the circumstances warranting
its exercise. The Court of
Appeal found that the circumstances which obtained on 13 October 1994
warranted the exercise
of the power under section 72(1) and so the
Governor-General's action in directing the Speaker to convene Parliament was
lawful in that case.
The plaintiff in the present
case raises a number of issues. But essentially, as noted in the submission
by the learned
Attorney-General, it is the lawfulness of the exercise of the
Governor-General's power under section 72(1) that concerns us
in these
proceedings. As to the facts giving rise to these proceedings, these are not
in dispute.
earned Attorney General
firstly impressed upon the Court that the plaintiff's case isse is brought under
section 83(1)
of the Constitution despite the restriction that it is
subject to the provisions of sections 31(3), 98(1) and paragraph 10 of
Schedule 2
also of the Constitution. Section 83(1) reads:
"83. (1) Subjecthe
provisions of sections 31(3) and 98(1) of, and pand paragraph 10 of Schedule 2
to, this Constitution,
if any person alleges that any provision of this
Constitution (other than Chapter II) 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."
It remains, of course, a matter
for the discretion of the Court to decide whetherpplicant alleging a
b breach of any
provision of the Constitution ought to be heard because of his
interest being affected or are likely to be affected. Kenilorea -v-
Attorney General [1983] SILR 61. In this case Counsel for the defendant
conceded the plaintiff's standing to bring this proceedings and for the
Court
to deal with the issues raised arising out of the action taken by His
Excellency The Governor-General despite the limitations
specified in the
section. With respect, the concession by Counsel was properly made.
In questioning the lawfulness
of the exercise by Hisllency of his power under section 72(1), the
learned rned Attorney
General raised a number of issues. He has taken the Court
through a number of areas of the law relevant for the consideration
of the
validity of His Excellency's action. The Court is indebted to the learned
Attorney for his very helpful submission
in this matter.
The principles to be applie
interpreting the provisions of the
Constitnstitution are well
settled. The learned Attorney General referred the Court to the leading case
of the Minister of Home Affairs
-v- Fisher
[1979] UKPC 21; [1980] AC 319. Accepting that the principles set out in that case are
applicable in this jurisdiction, I must also reiterate the point made
by
this court in Jane Tozaka -v- Hata Enterprises Limited
CC198/96 (Judgement given on 3 June, 1997). This court stressed the
need to build up our own case law in this jurisdiction. So that where
a
legal principle had been firmly established in cases decided by our Courts,
we must build upon them instead of continuing
to rely on outside authorities
all the time. This Court said in that case:
"I note that both counsel in
this case had appeared in sf those cases mentioned andd and yet either
forgot or ignored
to cite those authorities. We must develop and build up
our case law in our jurisdiction instead of borrowing authorities from
foreign jurisdictions all the time.
Once a legal principle had been
firmly established in our jurisdiction it serves no point to keep referring
to the authorities
from foreign jurisdictions. But in order to do this, we
in the Courts and counsel appearing before those courts must strive
to build
up our own body or case law."
We must all strive to achieve
his.
That the Court should adopt a
generous approach to the interpretation of constitutional provisions is well
received in
this jurisdiction. The principles set out in Minister of Home
Affairs -v- Fisher have been adopted and applied by the Solomon Islands
Court of Appeal in The Speaker -v- Danny Philip, Civ. App. No. 5 of
1990(CA) and Edward Huniehu -v- Attorney General & Speaker of National
Parliament, Civil
App. No. 5/96.
There are other cases decided by the Court of Appeal and High Court which
adopted the said principles.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The learned Attorney General
then submitted on the modifications of the Westminster system of government
adopted by the
framers of our Constitution to suit our circumstances.
One of these is the process of appointment and dismissal of the
Governor-General which is
largely now governed by section 27 of the
Constitution. The case of In the Matter of an application by
Honourable Andrew Nori [1988 - 1989] SILR 99 ("The Governor -
General's Case”) established that the Governor-General's appointment
(and so his removal is now governed by section 27 of the Constitution
and not by the exercise of any Royal prerogative.
The second modification
subd by the learned Attorney General is in the appointment andt and
dismissal of the Prime Minister.
Again in this jurisdiction, the question of
appointment and dismissal of the Prime Minister have been well settled. He
is elected and can be removed
pursuant to the
provision of sections 33 and 34 of and schedule 2 of the Constitution.
He can only be removed by the Governor-General after a vote of no
confidence. This is established in Hilly -v-
Pitakaka and
Governor-General -v- Hilly.
The third modification referred
by the learned Attorney General is in regard to ower to prorogue or
d dissolve Parliament.
The power is exercisable by the Governor-General only
after a decision to do so is made by Parliament pursuant to section 73
of
the Constitution. No discretion is vested in the Governor-General in this
regard nor is there any power in any other
person or authority to advise the
Governor-General as to the exercise of his power under that section.
The fourth instance where our
system of Government based on the Westminster systing modified is in
th the restrictions
placed on the discretionary powers of the Governor-General.
One such restriction is found in section 31(1) of the Constitution.
As this section will be dealt with later in this judgement, I shall set it
out here:
31. (1) 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 except in cases where he
is required by this Constitution to act in accordance with the advice of, or
after consultation with, any person or authority
other than the Cabinet or
in his own deliberate judgment.
The restriction therein is that
the Governor - General "shall act in accordance wit advice" of the
Cabinet
or of a Minister acting under general authority of the Cabinet
except in cases where he is required by the Constitution to act in
accordance with the advice of some other person or authority. In this regard
the Prime Minister as the head
of the Cabinet can render advice to the
Governor-General who shall act in accordance with that advice. But the
legitimacy
of such advice is a matter which must be regarded as crucial for
the Governor-General to act upon. An advice contrary to law
or lacking
legitimacy or unconstitutional cannot be the type of advice contemplated
under section 31(1) and the Governor
- General must be entitled to disregard
it or refuse to act upon it. One such instance where the Governor - General
is
not obliged to act on the advice of the Prime Minister is where " a Prime
Minister ... conceding he has no majority is
in no position to insist that
the Governor-General's functions can only be exercised on his advice":
Hilly-v- Pitakaka.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The learned Attorney General,
in view e restrictions placed on the powers to be exercised by the the
Governor-General,
argued that the Governor - General's role is largely
formal. Whether that is so or not, can await another day. For our present
purposes, it is sufficient to be content with the fact the Governor-General
is the representative of the Head of State
in Solomon Islands. The Head of
the Executive is the Head of State and the executive authority of the people
in this
country is vested in the Head of State and exercised on Her behalf
by the Governor-General. (Section 30 of the
Constitution) The Governor-General is a creature of the
Constitution
with executive powers conferred on him by the
Constitution.
The matter now before this
Court is largely on the exercise by His Excellency The Governor-General of
his power under
section 72(1) of the
Constitution. This, in
some way, is a revisitation of this
Constitution provision.
About four years ago, this Court and the Court of Appeal dealt with this
provision in the constitutional challenge,
Francis Billy Hilly & Ors -v- Moses Puibangara Pitakaka & Another
(referred to earlier in this judgement). The Court of Appeal said of
this provision in that case:
&qu72(1) vests in the
Governor-General the function of appointing the place and time of e of the
holding of sessions of
the Parliament. His Excellency, has ordered the
Speaker convene the National Parliament on Monday 31 October next. In the
circumstances there can be no doubt about the validity of that order."
A week later in an appeal,
Governor - General -v- Francis Billy illy Hilly
& Ors, (also referred earlier in this judgment) arising out of
the Hilly -v- Pitakaka
case, the Court of Appeal re-iterated what it said earlier:
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
"The Court (Connoll
Williams and Los JJA) declared that in the circumstaumstances which obtained on
13 October last
it was lawful for the Governor-General to direct the Speaker
of the National Parliament to convene the Parliament as directed
by the
Governor-General in whatever form."
ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The learned Attorney has not
disputed that the Governor - General has poweer section 72(1) of the e
Constitution to summon Parliament. What the learned Attorney General says is
that in the circumstances of the present case, the Governor-General
was not
justified in exercising his power under section 72(1). He said that section
72(1) although gives the Governor
- General the power to determine the date
of the commencement of a session of Parliament, it does not specify that the
determination is to be made in the deliberate judgement of the Governor -
General. Hence, the learned Attorney General says,
the exercise of the
functions under section 72(1) must be governed by section 31(1), that is to
say, that the Governor
- General must act on the advice of the Prime
Minister as head of the Cabinet and cannot convene Parliament on his own
motion or on advice from any other authority other than Cabinet. While it is
correct to say that the Governor - General cannot
convene Parliament on the
advice any other authority other than the Cabinet through the Prime
Minister, I cannot accept
the contention that the Governor-General cannot
convene Parliament in the exercise of his own deliberate judgement. There
are circumstances which, when the normal machinery provided by the
Constitution becomes unworkable or impracticable, the Governor-General
is entitled to exercise his powers under section 72(1) without the
advice of
the Prime Minister. Such a position is clearly established in Hilly -v-
Pitakaka and Governor-General -v- Hilly where it is held that the
Governor - General can lawfully direct the Speaker to convene Parliament in
whatever form.
I would venture to add that in
recognition of such a situation the framers e Constitution
sought to add, in section 31(1), after providing that "the
Governor-General shall act in accordance with the advice of the Cabinet or
of a minister ...,” the Governor - General can also act "in
his own deliberate judgement." Hence one is disposed to the conclusion
that the Governor-General must exercise his powers under the Constitution
or any other law in accordance with the advice of Cabinet. But he can also
exercise his powers in his own deliberate
judgement and there may be
circumstances warrant him to do so. Of course, there are matters
specifically provided in
respect of which he can exercise his own deliberate
judgement, such as provided for under Clause 11 of schedule 2 of the
Constitution (matters in connection with the election of the Prime
Minister).
The position noted by the Court
of Appeal regarding our Constitution in Governor-General -v- Hilly
is real in my respectful view. The Court of Appeal said:
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
"it is a very stronp for
us to decide, although it may possibly be correcorrect, that the Constitution of
this country
is not a full statement of the constitutional position...."
I hold that the
Governor-General has the power to direct Parliamo convene in whatever
form. I do so on the authority
of Hilly -v- Pitakaka and Governor
- General -v- Hilly. I further hold that the Governor-General can direct
Parliament to convene even without the advice of the Cabinet or the Prime
Minister. Having said, I now turn to the circumstances of the present case.
I bear in mind that each case must be determined
on its own facts.
Mr. Hapa Counsel for His
Excellency The Governor - General sought to rely on ases I have just
ment mentioned. Counsel
also relied on the cases of The Speaker -v- Danny
Philip (referred to earlier in this judgement) which reiterated the
principle of "majority rule." The learned Attorney General on the
other had, strenuously sought to distinguish the present case from that of
Hilly -v- Pitakaka. So much so that the learned Attorney General
urged the Court to accept that in the present case there is no crisis like
that in the Hilly Government in 1994 that warrant the calling of Parliament
before the scheduled one on 12 October 1998.
As reliance has been placed on
Hilly -v- Pitakaka, it is necessary to briefly see what the
circumstances of that case Mr. Hilly was elected prime Minister on 18 June
1993,
on 24 votes over his rival who received 23 votes, a majority of one
vote. That was held by the Court of appeal, Governor-General -v- Mamaloni,
and Mamaloni -v- Governor-General, Civil Appeals Nos. 1 & 3 of 1993
to be an "absolute majority." Parliament sat in January 1994 and had
not sat since. By the beginning of October 1994 the Hilly Government had
been borrowing money in excess of the sum authorised by the 1994
Appropriation Act 1993 without the authority of Parliament. In addition,
six(6) members of his Government left (5 Ministers and 1 backbencher) to
join the Opposition. Mr. Hilly was left with 19 MP's while the Opposition
had 28. He admitted to the Governor-General
that he had lost support and he
deliberately delayed calling of Parliament because he was not sure that he
had the number
to pass legislation and defeat the pending motion of
no-confidence in him. He acknowledged that he had two options, to delay
Parliament indefinitely or resign. The Governor - General dismissed Mr.
Hilly as Prime Minister and directed parliament
to meet to elect a Prime
Minister. The Court of Appeal held that the Governor-General had power to
direct Parliament
to meet so that Mr. Hilly would face the no-confidence
motion.
In the present case, the Prime
Minister was elected on 27 August 1997. Parliament lastin April/May
1998. By8. By the beginning
of August, 1998 six(6) MP's in the SIAC Government
left to join the Opposition. In fact there were four Ministers and three
backbenchers who resigned to join the Opposition. However the fourth
Minister withdrew his resignation on 22 August 1998
and returned to the
Government. This was confirmed to the Governor-General in a letter from
Leader of Opposition to His
Excellency which letter had attached to it, the
individual letters of resignation by each of the SIAC MPs and pledging their
support to the Opposition. The Prime Minister, therefore, by 25 August 1998
was only left with 24 MPs supporting him
while the Leader of Opposition
clearly had 25. The Governor - General met with both the Prime Minister and
Leader of
Opposition, on separate occasions in which the Governor-General
requested both leaders to substantiate their support in Parliament.
The
Leader of Opposition did but the Prime Minister refused on the basis, he
said, that the Constitution did not require
him to do so. In the meantime,
Parliament had already been notified that a meeting of Parliament was
scheduled for 12
October 1998 and MPs had already been notified. The Prime
Minister therefore advised the Governor-General that there was no
need for
earlier meeting of Parliament to debate the no-confidence motion. The
Governor-General thereafter being convinced
that the Prime Minister lost the
support in the House directed parliament to meet on 8 September to debate
the no-confidence
motion.
When one looks at th of
circumstances of the two cases, there are obviously some distinguishing
fac factors such as the
absence of concession by the Prime Minister in the
present case of not having majority support in the House; there has been
no
financial irregularity on the part of the present Government; and the number
of MP's supporting the Prime Minister
in the present case is only one less
than those supporting the Opposition. On the other hand in both cases a date
had
been fixed for Parliament meeting before the Governor - General's
direction. Both cases were concerned with the Prime Minister
losing the
majority support of MP's and in both case a motion of no-confidence against
the Prime Minister was pending
before parliament. The learned Attorney
General argued that when one compares the situations of the two cases, those
in the present case did not show that a constitutional crisis of the type
described in Hilly - v- Pitakaka was present. In any case, he argued
if there was a crisis it could easily have been resolved at the sitting of
Parliament
on 12 October 1998. This, of course, assumes that parliament will
on 12 October 1998. But as pointed out in Hilly-v- Pitakaka:
class="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
"..... even if Parliament met
on 18 November certain constitution problems may not be overcome. If the
Prime Minister
lost a vote of confidence on that date there would have to be
an election of a new Prime Minister and the swearing in of a
new Cabinet
before the new government could direct its attention to appropriation for
1995. It is unlikely that could
occur before 31 December 1994."
The Court went on to say that
is was of particular importance in that case because of thef the decision of
the High Court
in Abe -v- Minister of Finance & Attorney General,
CC197 of 1994 (Judgment delivered on 4 October 1994) which held that the
government had contravened the 1994 Appropriation Act 1993 by
borrowing in excess of its limit without authority from Parliament.
As in Hilly -v- Pitakaka,
the Prime Minister in the present case had taken steps to have Parliament
convened, but there is no guarantee that will
occur. However, even if it
meets on 12 October 1998 certain constitution problems may still not be
resolved. His Excellency
described those problems in his letter dated 31
August 1998 to the Prime Minister as follows:
<
"It appears to me that
following the recent resignation of six members of Parliament who now openly
pledge their
support for the Opposition, there is some cause for concern
that you may not have the confidence of the majority of the democratically
elected MPs to enable you to proffer me advice on the government of Solomon
Islands. This observation, couple with the
Opposition's intimation to me
that of their proposed withdrawal of support for the budget which your
Government plans
to introduce on 12 October 1998, has prompted me to
reconsider my earlier views based on the political situation obtaining
at
the time of my return to Honiara."
In my judg such a
situation described by His Excellency The Governor - General is equally of
of
serious concern. It
has been demonstrated that the Prime Minister does not
have majority support and there is the intimation from the Opposition
that
they will not support the Budget. That is equally as serious as that
described in Hilly -v- Pitakaka and one that necessitates the resolution of the question of
support for the Government before the debate of the budget
The cases in this jurisdiction
have now firmlyblished that the central feature of the structure of
government under
our Constitution
is majority rule. The leader of the Government, the Prime Minister,
is identified with an absolute majority through an electoral
procedure set
out in Schedule 2 to the Constitution.
If he loses that support on a motion of no - confidence the Governor
- General must remove him from office. (Section 34 of the
Constitution).
It is inconsistent with the principle of majority rule in a
Parliament democracy, and therefore unconstitutional, for a government
without a majority to remain in office knowing well that it no longer has
the majority support. As pointed out in
The Speaker -v- Danny Philip:
"The result could be that the
mechanism prd by the Constitution for tfor the removal of a Government may
become inoperative,
and even a Government which does not have the confidence
of the House may continue in an unchallenged position for many months.
In
our judgment, such a conclusion would be quite unsatisfactory and
inconsistent with the principle for which Mr. Nori
strongly and, as we
think, rightly contended, that is, the principle of majority rule in a
Parliamentary democracy. Mr
Nori pressed us with the proposition that it is
our duty to interpret the Constitution in a way which advances rather than
impedes the principles of majority Government."
If the criterion of identifying
the candidate for Prime Ministership is an absomajority, then it
fol follows in my judgement
that the same criterion also applies as to the right
to govern. It is a practical principle of government. See Professor Colin
Howard in "Australian Federal
Constitutional Law” (1985)
(3rd Ed.) at p.123 referred to in Hilly -v-
Pitakaka
where it was also pointed out 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."
Although the Prime Minister had
not conceded that he has only 24 Members of Parliament, the evidence clearly
demonstrates
that he only has 24 Members of Parliament. That being so, he
must be in the position described by the Court of Appeal as being
not in a
position to tender advice to the Governor - General.
This is the position gly
contended for by Mr Hapa who simply and in a forthright manner put the case
for the Governor
- General based on the application of the constitutional
provisions and the legally established precedents that go with it.
I do not no dwell into the
argument of reserved powers in this case. It is clear to the Court turt that the
Governor -
General was not relying on any reserved powers but on section
72(1) of the Constitution. As I indicated earlier, this case is a
revisitation of that section, only now that it is much more clearer than it
was
in 1994.
The learned Attorneeral
urged that the Governor - General before exercising his power under section
72(1) ought to
have taken into consideration seven factors, namely:
(a) the fact that the Acting
Governor - General had decided n call a special meeting of g of Parliament.
(b) a Parliament Meeting had
already been set for 12 Oc 1998 - only a matter of weof weeks away.
(c) the Government was not
operating unlawfully.
(d) there was no urgency for a
meeting.
(e) setting a precedent for
political tainty leading to instabiliability
(f) financial constraints in
having a special meeting of Parliam/span>
(g) national interest.
The learned Attorney General
submitted that the Governor - General fato take these into account ount and
so the exercise
of the function by the Governor - General was not a real
exercise of the function and therefore unlawful. With respect, that
contention presupposes the existence of the criterion of majority support
for the Government. If that support is not
present, then the law as
enshrined in the Constitution which is `the supreme law' in
Solomon Islands must be complied with. Political expediency cannot take
precedent over the rule of law, however inconvenient
the result may be. The
national interest is a factor closely associated with stable government
which is achieved by maintaining
the majority support to run it. The fear of
Members crossing floor every now and then is bound to happen under our
present
system of government. That is a matter for the legislature to
resolve.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
On the question of Standing
Orders, it is argued that the Governor - General contravened Standing
Orders 7(2) & (3) in that the required 13 days notice had not been given
and that there was no case of emergency to dispense with
that required
notice. Standing Orders are made pursuant to section 62 of the
Constitution. The power of Parliament to make Standing Orders for
regulating its proceedings is itself expressed to be subject to the
provision of the Constitution. See Huniehu -v- Attorney General &
Speaker. One of the provisions of the Constitution to which any
Standing Orders is subject is section 72(1) which empowers the
Governor - General to direct Parliament to convene"at such place ... and
at such time" as he may appoint by proclamation. No Standing Orders
can override the effect of the Governor - General's power expressed in those
words.
<
Where, however, the Governor -
General acts on the advice of the Prime Minister in the normal situation and
calls Parliament,
Standing Orders 7(2) and (3) must apply. In this
regard, I venture to say that the initial decision by His Excellency on 11
August 1998
to call Parliament was a decision made acting on the advice of
the Prime Minister and the provision of Standing Orders 7(2) & (3)
applied. That meeting schedule for debate on the Budget and 12 October 1998
was for debate on the Budget
and Government Bills. The decision made by His
Excellency on 31 August 1998 was for Parliament to convene to debate the
motion of no - confidence in the Prime Minister before the Budget meeting.
The reasons for this special meeting was made
known by His Excellency in his
letter to the Prime Minister dated 31 August 1998. Non - compliance with
Standing Orders
7(2) & (3) is not fatal to His Excellency's decision of 31
August 1998.
This change of decision by His
Excellency has been argued to be outside His Excellency's . I do not
think so. so. I accept
Mr. Hapa's argument that section 139 of the Constitution
would apply. That provision reads:
"139. Where any power is
conferred by this Constitution to make any proclamation, regulation, order
or rule, or to
give any direction or instructions, the power shall be
construed as including the power, exercisable in like manner, to amend
or
revoke any such proclamation, regulation, order, rule, direction or
instructions."
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
That provision clearly confers
power on His Excellency to alter or even revoke his earlier decision. Prior
to 25 August
1998 the evidence shows that His Excellency's position remain
as that obtained on 11 August 1998. On the two occasions when
the Prime
Minister called on His Excellency, as deposed in paragraph 18 of the Prime
Minister's affidavit, the Prime
Minister tendered advice to His Excellency.
I have reason to suggest that His Excellency did not consider the advice
given to him then. His Excellency had taken steps to have the situation
resolved. His attempt to have a meeting with Prime
Minister and Leader of
Opposition together was unsuccessful due to the refusal by the Leader of
Opposition to attend.
This is regrettable as rightly stated by the Prime
Minister in his letter to H.E on 25 August 1998 ("MPP7"). The
Opposition, no
doubt were relying on their number. His Excellency requested the Prime
Minister to confirm his numerical
support but the Prime Minister said that
he had no obligation under the Constitution to do such a thing. Had
he been properly advised, I have no doubt he would appreciate that he has
the obligation to do
so pursuant to section 32 of the Constitution
which reads:
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
"32. The Prime Minishall
keep the Governor - General fully informed conceconcerning the general conduct of
the government
of Solomon Islands and shall furnish the Governor - General
with such information as he may request with respect to any particular
matter relating to the government of Solomon Islands."
Nothing is clearer than the
words of that provision the duty of the Prime Minister to "furnish
t the Governor - General with such information as he may request";
regarding the government of Solomon Islands.
The public and people of this
country do not know the true pon of what causes the situasituation we are
now in. This Court
has before it the necessary evidence because of these
proceedings, which clearly demonstrate that the situation we now have
must
be resolved as soon as possible. His Excellency recognises the need to have
it so resolved and he took the legally
provided measure demanded of him by
the Constitution. In so doing His Excellency was no more than
subjecting the expediency of politics to the rule of law as enshrined under
our Constitution.
Having anxiously considered all
the matters placed before the Court and havinrd all arguments from both both
the learned
Attorney General and Counsel for the Governor - General, the
Court answers the three questions posed in the affirmative.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The result is that Parliament
must meet to debate the motion of no - conce. The Governor - Generalneral
had already lawfully
directed Parliament to convene on 8 September 1998. By
order of this Court, the debate of the motion of no confidence in the
Prime
Minister could not take place on that date. The Speaker of National
Parliament would now have to fix a new date
so that Parliament can resume
and have the motion debated in the House which is the place where the people
of this nation
through their Constitution, intend the present dispute
to be resolved.
This is not a personal matter
for His Excellency whose decision gave rise to these proceedings. He was
performing a constitutional
duty. He should therefore, not have to bear the
costs of defending his decision personally. I therefore order that any
expenses incurred by Counsel in representing His Excellency must be paid out
of public fund.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The Orders of the Court are:
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
Question: 1
Answer: Yes.
Question: 2.
Answer: Yes.
Question: 3.
Answer: Yes.
onsequential orders sought
do not, therefore, arise for determination.
>
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Costs as directed.
(GJB
Muria)
CHIEF JUSTIJUSTICE
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