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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
CIVIL CASE (CONSTITUTIONAL) NUMBER 195 OF 2000
HON. BARTHOLOMEW ULUFA’ALU
V
ATTORNEY-GENERAL & HON. MANASSEH SOGAVARE &
HON CHARLES DAUSABEA & ANDREW NORI &
MEMBERS OF THE JOINT MALAITA EAGLES FORCE/ PARAMILITARY FORCE
(PALMER ACJ)
HEARING: 15th – 16th October 2001
JUDGMENT: 9th November 2001
John Greenwood QC and Patrick Lavery and Emma Garo for the Applicant
Attorney-General Primo Afeau and Mekau for the First Respondent
Motis Pacific Lawyers for the Second and Third Respondents
Andrew Nori in person as the Fourth Respondent
Bridge Lawyers for the Fifth Respondent
PALMER ACJ: There are two interlocutory motions before this Court, one filed on 8th October 2001 by the Second and Third Respondents, the other filed on 12th October 2001 by the Fourth Respondent. Mr. Greenwood raised objection at the commencement of proceedings on the ground that these applications should have been dealt with prior to the substantive hearing of the Applicant’s Notice of Motion. I over-ruled however on the grounds that the Second, Third and Fourth Respondents were entitled to bring such application under Order 17 rules 11 and 12 of the High Court (Civil Procedure) Rules, 1964 (hereinafter referred to as "the High Court Rules") and heard applications of Second, Third and Fourth Respondents.
The Notice of Motion of the Second and Third Respondents seek the following orders:
"1. That the Second and Third Respondents cease to be parties in this action; and
2. That their names be struck out of the application for redress and all subsequent proceedings herein
on the grounds that:
(a) the Second and Third Respondents are;
(i) improperly joined as parties hereto; and
(ii) not persons from or against whom the Applicant is entitled to claim redress under the provisions of Section 18 of the Constitution in the form of the declaratory or other orders set out in paragraphs (a)(1) – (7) inclusive and (b) of the Notice of Motion filed herein on behalf of the Applicant on June 19, 2001;
(b) the matters in respect of which redress is sought by the Applicant in the form of the declaratory or other orders set out in paragraphs (a)(1), (3), (4), (7) and (b) of the Notice of Motion filed herein on behalf of the Applicant on June 19, 2001 are not justiciable by virtue of paragraph 10 of Schedule 2 to the Constitution;
(c) the Applicant is not entitled under the provisions of Section 18(1) of the Constitution to apply for (and, accordingly, the Court lacks jurisdiction under Section 18(2) thereof to grant) redress from or against the Second and Third Respondents in the form of the declaratory orders set out in paragraphs (a)(2)(i) – (x) inclusive and (3) of the Notice of Motion filed herein on behalf of the Applicant on June 19, 2001."
The Notice of Motion of the Fourth Respondent seek the following orders:
"1. The Fourth Respondent be removed as a party to this action;
2. Paragraph (a)(2) of the Notice of Motion be struck out on the ground that the Applicant has no locus standi to seek the declarations sought therein;
3. Such further orders as the Court deems just and equitable in the circumstances of the case, including further orders for variation of directions."
The background facts
The matters giving rise to the application of the Applicant before this Court emanate from the events, which occurred on the early morning hours of 5th June 2000. It is important to appreciate however that what happened that morning was a culmination of unforeseen, unfortunate and unprecedented train of events, which rocked the country and continue to shake its foundations. The situation in the country prior to 5th June was not stable. The rule of law in the country had been severely undermined by rebel groups and criminals on Guadalcanal Island who showed no respect for the law. These initially formed themselves into a group called the Guadalcanal Revolutionary Army ("GRA"), which later changed its name to the Guadalcanal Liberation Army ("GLA"), then changed to the Isatabu Freedom Fighters ("IFF") and finally the Isatabu Freedom Movement ("IFM"). It was not clear what exactly their agenda was, but it started off as grievances arising from the murders of Guadalcanal people, (many of the accuseds had been tried under the criminal law of this country and convicted), illegal settlements of land in the outskirts of Honiara City, (squattor settlements had grown up and extended into customary land areas of the indigenous owners), a desire for more autonomy through state government and a host of other grievances. A small renegade faction, led by the notorious Harold Keke still exists despite peace efforts to have the violence and fighting stopped. This group and their members deliberately broke the laws of this country and yet were not arrested and brought to account in the People’s Courts. A lot of people from Malaita and others, living in the outskirts of Honiara city, many for two to three generations and had validly purchased land in custom or according to law (pursuant to the Land and Titles Act Cap. 133), peacefully and lawfully residing in their lands, suddenly found themselves chased out by armed and ruthless gangs who showed no respect for the law. There was indiscriminate burning, destruction of property, kidnapping and killing of innocent Malaitans. Law and order outside of Honiara city was virtually out of control. The Police with due respects were unable or prevented from taking control of the law and order situation outside of the city boundary. Had the armed rebellion and upheaval, which started off as criminal activities been nipped at the bud, the storm may never have been allowed to gather momentum and turn into a hurricane which almost destroyed the foundations of this nation. The Government of the day too seemed powerless, despite its many well meaning efforts and attempts to halt the lawlessness that was wreaking havoc outside the city boundary and pushing its ugly head in towards Honiara City. Progress to halt or arrest this downward spiral of lawlessness was slow, too slow perhaps for the victims and those directly affected. Many had lost their life’s savings and investments overnight. For some it was a simple matter of life and death to escape. Delay would have been fatal. Many were traumatized and hurt by what appears to be insane and unimaginable atrocities and crimes, tortures and killings committed against them. Many lost their loved ones. Many were innocent victims of this incomprehensible hatred and anger directed at them under the guise of "ethnic cleansing". There were obviously many disaffected people, especially from the thousands that had been unlawfully chased out and displaced by the armed rebellion. There were many hurt and wounded, angry and offended people. For many who had been abased, abused and debased, revenge and retribution was high on their list. Their patience was running out. Confusion and uncertainty was ripe. The politically orientated obviously took advantage of the situation to advance their political agendas. The stage was set for the volcano to explode and it did on 5th June 2000. Spurred on perhaps by the events in Fiji, some disaffected members of the Police and Prison Force joined up with disaffected members of those who had been displaced, a group now known as the Malaita Eagles Force ("MEF") and hereinafter jointly referred to as "the Joint Force", raided the Police Armoury at Rove on the early morning hours of 5th June 2000 and after arming themselves with high powered rifles, took "control" of "law and order" within the city vicinity. The Prime Minister then, (Applicant in these proceedings), was placed under house arrest by the Joint Force, after his personal guards at his residence had been disarmed, threatened and chased out. The Prime Minister was told to resign or his life would be at risk. Mr. Ulufa’alu has deposed in his affidavits filed 5th June, 12th June and 18th June 2001, not only explicit details of the harassment, intimidation and violence he had been exposed and subjected to during that time, but had filed copious documents of the reports, events and efforts undertaken by his Government to address the downward spiral of law and order in the Capital, which preceded the 5th June 2000 and the events thereafter. Numerous affidavits too (that of Paul Afafa filed 13th June 2001, Francis Billy Hilly, Daniele Enele Kwanairara, Hugo Ragoso, Walton Naezon, Nelson Boso, Edwin Kwaimisi, and Jimmy Mae all filed on 5th June 2001, Sir Baddley Devesi filed 18th June, Patteson Oti and Fred Fono filed on 9th July 2001) have also deposed to details of harassment, intimidation and threats on themselves, their family members and others by members of the Joint Force or their supporters. As a direct result of those threats, a number of his supporters resigned from his Government and defected to the opposition grouping, which was led at that time by the Second Respondent.
Mr. Ulufa’alu tendered his resignation to the Governor-General (see Exhibit marked "BU 5" annexed to his affidavit filed 12th June 2001) by letter dated 13th June 2000 as a result of those threats. It was clear his Government was no longer in control of events. A sector of the People had risen up and assumed illegitimate control of the Capital. The country was thrown into a state of misapprehension, uncertainty and fear. The Police Force, the legitimate law enforcement agency in the country was paralyzed overnight. It became extremely urgent henceforth to have the situation brought under control. This could only be done, by summoning Parliament to elect a new Prime Minister who would form a new government that would take the bull by the horns and address the vital pressing issues confronting the country. Realizing the urgency of the situation, His Excellency immediately arranged to have Parliament called. It was obvious the situation was not normal. The Governor-General himself was under intense pressure. His personal guards had been disarmed. Despite this, he bravely made a call to all Members of Parliament for the return to normalcy in his letter of 14th June 2000 (page 259 of Exhibit marked "BU" in the affidavit of Bartholomew filed 5th June 2001) before Parliament would be summoned to elect a new Prime Minister. He knew, it was common knowledge then, that the Prime Minister had been forced to resign under the barrel of the gun. The conditions set included inter alia, the return of all parties to the conflict to the pre-position before 17th January 2000 and the return of all arms to the Rove Armoury within 14 days thereafter and the restoration of a neutral police force. But the damage had been done, the conflict had gone beyond the point of no return and nobody was listening. Realizing the situation was even more precarious, with widespread looting, stealing, harassment and intimidation of innocent citizens in the Capital, with the absence of an effective police force, not to mention the fact that our overseas neighbours were making plans to evacuate their citizens from our country, his Excellency decided in his own deliberate judgment to activate the provisions of Schedule 2 to the Constitution, and call a meeting of members for the urgent task of electing a new Prime Minister in spite of the fact that the preconditions set by him had not been complied with. The date fixed was 28th June 2000 and notices were sent out to all members of Parliament to attend. It is important to bear in mind throughout that there is no challenge whatsoever to the validity or legality of the powers exercised by the Governor-General in the extreme situation prevailing in the Capital and in the country at the said time. On said date, only 23 members turned up. The meeting was cancelled by His Excellency and re-scheduled for 30th June 2000. The Office of Parliament went to great lengths to arrange for charter flights and ordinary flights to bring in from the Provinces other members of Parliament who had fled the Capital in fear of their life. This time, the turn out was more successful. The remaining members of the "Caretaker Government" nominated two from their numbers (Hon. Leslie Boseto, a former Bishop of the United Church now a Parliamentarian and Hon. Francis Billy Hilly a former Prime Minister) as their candidates to contest the election of Prime Minister. The opposition nominated Hon. Manasseh Sogavare. It is clear from the affidavits of Francis Billy Hilly, Daniel Enele Kwanairara, Walton Naezon, Nelson Boso, Edwin Kwaimisi (2nd affidavit), and Jimmy Mae, all filed on 5th June 2001, first affidavit of Edwin Kwaimisi filed 7th May 2001, Sir Baddeley Devesi filed 18th June 2001 and affidavit of Patteson Oti filed 9th July 2001, that there were unlawful attempts by armed men alleged to be members of the Joint Force and supporters of the opposition candidate (2nd Respondent and 3rd Respondent) to prevent the charter and normal flights from taking off the ground and bringing in members of Parliament from the Provinces. Despite those threats and at the risk of their lives, the majority including the Applicant bravely turned up to honour the constitutional obligations and duties required of them to elect a new Prime Minister. They should be commended for that. On said date, a majority of members (44 out of the 50 seat Parliament) turned up and the election meeting was given the green light by his Excellency. Of the three nominated, Hon. Francis Billy Hilly withdrew his candidature at the last minute. The Applicant was neither a candidate nor a nominator of any of the candidates for prime minister (see Exhibit "MS 3" annexed to the affidavit of Manasseh Sogavare filed 10th September 2001). Hon. M. Sogavare collected 23 votes whilst his rival 21. He was declared by His Excellency to be the new Prime Minister of Solomon Islands. This has been subsequently published in the Solomon Islands Gazette on 5th July 2000 as Legal Notice No. 60 (see copy annexed as "MS 1" to the same affidavit of Manasseh Sogavare). The Notice of Assignment of Responsibility to Prime Minister dated 11th July 2000 was published as Legal Notice No. 115 in the Solomon Islands Gazette on 12th July 2000 (Annexure "MS 4"). No dispute arising out of or in connection with the calling or conduct of that election meeting or the election of Hon. Manasseh Sogavare has been referred to His Excellency for his determination.
The claim of the Applicant
It is important at the outset, to set out the gist of the Applicant’s case. His application for redress is centered on the events occurring between 5th June and 30th June 2000. That as a result of what happened during and throughout that period, his resignation was not voluntary, made under duress and protest by him. He stopped short however of asking this court to rule on its validity, content with a mere declaration. He submits that as a result of the harassment, intimidation and threats issued against members of Parliament within his camp (his supporters), and leveled directly against him, the meeting of Members of Parliament on 30th June 2000 was perverted by the coup leaders (the second, third and fourth Respondents – see paragraph 3 of the Statement accompanying the Application for Leave filed 5th June 2001 ["the Statement"]) to the extent no valid and constitutional exercise of the power to elect a Prime Minister had taken place (paragraph 18 of the Statement). The purported election of Hon. Manasseh Sogavare on 30th June 2000 accordingly was invalid and sought consequential declarations to the effect that he was entitled to continue as Care-Taker Prime Minister under section 34(4) of the Constitution until a valid meeting is convened to elect a new prime minister [see para. (a)(1) and (3) of his Notice of Motion filed 19th June 2000].
The Issues
Learned Counsel Mr. Moti, for the 2nd and 3rd Respondents has conveniently summarized the issues for determination by this court into three categories. The issues raised by Mr. Nori in his Notice of Motion are subsumed in those categories and so both Notices of motion have been dealt with together. For convenience the 2nd, 3rd and 4th Respondents are referred to hereinafter as "the Respondents". The three categories are (i) objections to the Applicant’s locus standi, (ii) objections of non-justiciability and (iii) objections to horizontal application of Chapter II of the Constitution. Each objection will be addressed separately with the arguments for and against, and the law as found and applied to the facts before the court.
Objections to Locus Standi
The objections of the Respondents are two pronged. (i) The Respondents object to the Applicant applying for redress in a representative or relator capacity on behalf of "Members of Parliament" and "family members of Members of Parliament" (para. 9 of written submissions of 2nd and 3rd Respondents). (ii) The Respondents object on the basis that "the Applicant was neither a candidate nominated for election nor a nominator of any candidate for election as Prime Minister" (see paragraph (a)(3) of the Notice of Motion of the Applicant).
The Respondents submit that the sine qua non for locus standi in section 18(1) of the Constitution is contained in the qualifying, controlling or limiting words "in relation to him", which requires that the allegations of contravention must relate directly to or personally affect the applicant for redress. The only permissible exception is in the case of "a person who is detained". The Respondents rely on a decision of the Supreme Court of Zimbabwe (per Gubbay CJ, McNally, Korsah, Ebrahim and Muchechetere JJA) in United Parties v. Minister of Justice, Legal and Parliamentary Affairs [1998] 1 LRC 614, dealing with a challenge to the constitutionality of electoral legislation based on alleged contraventions of the Declaration of Rights in the Zimbabwe Constitution, with reference to an identical provision to section 18(1) of our Constitution. It was held in that case that the applicant had no right to bring an action either on behalf of the general public or anyone else. The Respondents submit, the Applicant in this case in like fashion, cannot be permitted to bring an action and apply for redress on behalf of "Members of Parliament", "family members of Members of Parliament" or candidates and nominators of the candidates.
The Respondents point out (paragraph 16) that none of the former Members of Parliament, their family members, their candidate for prime minister or any of the nominators have been joined as applicants to these proceedings. Mr. Moti also points out the fundamental difference in the formulation of locus standi requirements in Section 18(1) and Section 83(1) of the Constitution. In Section 18(1) the alleged contravention must be personal to the applicant (i.e. in relation to him), whereas under Section 83(1) the alleged contravention must:
(a) have occurred ("has been contravened"); and
(b) affect his interests for declaratory and other relief:
- (i) either currently or presently; or
- (ii) prospectively or in the future ("are likely to be affected").
Learned Counsel submits the Applicant should not be allowed to use the liberalized approach to locus standi under Section 83(1) as set out in numerous cases, Kenilorea v. Attorney-General [1983] SILR 61; Kenilorea v. Attorney-General [1984] SILR 179; The Speaker v. Danny Philip (unreported, CASI, Civil Appeal Case No. 5 of 1990, 30/08/91); Christopher Columbus Abe v. Minister of Finance and Attorney-General (unreported), HCSI, Civil Case No. 197 of 1994, 12/08/94) and apply them to the test of locus standi under section 18(1). The Respondents rely on the clear statements of Parnell J., dealing with a similar provision in the Jamaican Constitution in Banton & Others v. Alcoa Minerals of Jamaica Incorporated (1971) 17 WIR 275, 305 which affirmed inter alia, the view that an applicant has a justiciable complaint, if a right personal to him and guaranteed by the Constitution has been or is likely to be contravened.
The Submissions of the Applicant on locus standi
The Applicant submits that the threats to the safety of Members of Parliament and to families of Members of Parliament, which form the basis of paragraph 2 of the declarations sought, can be shown to relate to him and to affect him personally by asking three crucial questions.
2. If yes, were they contraventions of such a nature that they:
(1) were likely to have an effect on the Prime Minister; or
(2) did in fact have an effect on the PM; or
(3) were intended by their perpetrators to have an effect on the PM?
The effects alleged by the Applicant were:
(a) imposing sufficient pressure on the PM to procure his resignation. The Applicant submits that one of the factors which weighed heavy in his mind and prompted his resignation was not only the danger to himself and his family but knowledge that the danger to his followers and their families would continue until he resigned.
(b) imposing sufficient pressure on the MPs to persuade them to withdraw political support from the PM by either;
(i) resigning from the coalition,
(ii) refraining from attending the meetings of 28 June and 30 June,
(iii) procure a meeting in which a result would be achieved favourable to the Opposition candidate, and in so doing bring the caretaker Prime Ministership of the Hon. Bartholomew Ulufa’alu to an end.
(c) imposing pressure on the PM not to stand for re-election at the meetings of 28 June or 30 June. The Applicant submits he did not do so because to do so would bring back again further intimidation to his fellow MPs and their families.
In a nutshell, the Applicant contends that all the harassment, intimidation and threats made against the MPs and their families and to him and his family were for the purpose of getting him to resign, to prevent him from resuming leadership as PM and to prevent his coalition from regaining control of power in government. As long as he can show to this Court by evidence and he submits he has done that, it is sufficient to show that the contraventions were done in relation to him.
Applicant relies on two cases Inland Revenue Commissioners v. Maple and Co (Paris) Ltd [1907] UKLawRpAC 63; 1908 AC 22 at 26 and Oscar Faber v. Commissioners for Inland Revenue (1936) 1 All ER 617 at 620.3 as giving a broad meaning to the phrase "relating to". Applicant also relies on the provisions of Section 83(2) of the Constitution as giving him supplementary jurisdiction under Section 83 when proceedings under S. 18(1) are before the court. I presume the Applicant meant he could bring proceedings under Section 83 if this application fails or that perhaps he could rely on the test of locus standi therein to validate his standing under Section 18(1).
Locus Standi under section 18(1)
Locus Standi simply means a place of standing or standing in court, a right of appearance in a court of law (Black’s Law Dictionary sixth edition). It is a threshold question to be determined at the beginning of a case to weed out frivolous or vexatious claims or in which it is shown an applicant has no interest or insufficient interest. There are two gateways (Sections 18 and 83) in our Constitution under which an applicant seeking redress for contraventions of provisions of the Constitution may proceed. Those two gateways however relate to specific parts of the Constitution. Section 83 provides remedy for allegations of contraventions of those Chapters of the Constitution dealing with Citizenship (Chapter III), the Executive (Chapter V), The National Legislature (Chapter VI), the Legal System (Chapter VII), the Leadership Code (Chapter VIII), the Ombudsman (Chapter IX), Finance (Chapter X), Land (Chapter XI), Provincial Government (Chapter XII), and the Public Service (Chapter XIII). Section 18 deals with the Protection of Fundamental Rights and Freedoms of the Individual. The test for locus standi in both provisions in my respectful view is quite distinct and to be determined primarily from the express terms contained in those provisions. For purposes of comparison it is pertinent to note that the standards expressed are different. Section 83 is outward looking "... 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....". It is broader and wider in terms of possible applicants that could apply for redress. An applicant satisfies that test if he has sufficient interest. Section 18 on the other hand, looks inward. This is plain from the sub-heading of Chapter II "Protection of Fundamental Rights and Freedoms of the Individual". It focuses on the protection of individual rights and freedoms, encapsulated in Sections 3 to 16 of the Constitution, not his interests. The test of sufficient interest is more liberal than the test under Section 18. Satisfying the locus standi requirements under Section 83 does not imply an applicant should be granted locus standi under Section 18. For instance, a close relative of an affected person may show that he/she has sufficient interest in the contraventions of the provisions in Chapter II in relation to an affected person, but he/she cannot and does not have locus standi to bring such action for and on behalf of the affected person. He/she may be able to do it under Section 83 but definitely not under Section 18. The allegations of contraventions of any provision of Chapter II must necessarily relate to and are confined in my respectful view, to the individual rights and freedoms of an applicant.
Section 18(1) reads:
"Subject to the provisions of subsection (6) of this section, if any person alleges that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress."
The first qualifying factor in Section 18(1) is that any allegations of contraventions are confined to the individual rights and freedoms specified in Sections 3 to 16. The second qualifying or limiting factor is that those contraventions must relate directly to or personally affect him - "in relation to him". The rights that an applicant can seek redress for under Section 18(1) are not the rights of a friend, supporter or family member. An applicant cannot be permitted to come to court for redress, for contraventions, which relate to others. They can come to court themselves. They have equal rights of access, guaranteed by our Constitution to come to court for redress. It is unnecessary therefore and actually amounts to an abuse of process for another person, whether a friend, supporter or family member to seek redress on behalf of someone else’s rights. An applicant can agitate his own allegations of contraventions under Section 18(1).
Only where there is ambiguity may the court consider whether the words "in relation to him" should be extended to include the effects that such contravention may have on an applicant. I find no such ambiguity in the construction of the words "in relation to him" and therefore it is superfluous, to imply terms or meanings in its construction. The effects doctrine referred to by Mr. Greenwood may be applicable under Section 83, but not Section 18(1). For instance, under Section 4(1), only a person sought to be deprived of his life intentionally, (not his friend or a family member) may bring an action for redress under Section 18(1). The same applies to allegations of deprivation of personal liberty under Section 5(1). An applicant cannot bring an action for redress in respect of contraventions of another man’s personal liberty merely because they affect him as well.
The two cases Inland Revenue Commissioners v. Maple and Co (Parish) Ltd [1907] UKLawRpAC 63; 1908 AC 22 at 26 ("the Inland Revenue Case") and Oscar Faber v. Commissioners for Inland Revenue (1963) 1 All ER 617 ("the Oscar Case") at 620.3, relied on by Mr. Greenwood are distinguishable and do not assist the Applicant. In the Inland Revenue Case the court was required to determine whether a conveyance on sale executed abroad (in France) should be charged with duty when they relate "to any matter or thing done or to be done in any part of the United Kingdom". The issue, which the court was required to determine was whether those words could be extended to include any property, situate in the United Kingdom. It was in the context of those words that Lord Macnaghten defined the words "relating to" in his judgment.
"Speaking for myself, I have some difficulty in seeing why it should be assumed that this instrument does not relate to property situate in the United Kingdom. The Act speaks of the "instrument." The provision is not confined to the operative part of the instrument. It speaks of the instrument as "relating to" certain subjects. There is no expression more general or far-reaching than that." [Emphasis added]
Mr. Greenwood picks out the words ‘There is no expression more general or far-reaching than that’ and submits that the same must be applied to the words ‘in relation to him’ in Section 18(1). Unfortunately, the application of his Lordship’s comments is flawed. The phrases compared are not the same. In the Inland Revenue Case the term used was, "relating to any matter or thing done or to be done". In Section 18(1) on the other hand, the term used is specific - "in relation to him". The focus in Section 18(1) of the application of any allegations of contraventions is on an applicant. I agree with his Lordship Lord Macnaghten, that the term in the Inland Revenue Case is general and far-reaching in its ambit, the same cannot be said of the term in Section 18(1). Oscars Case also adds little to the Applicant’s case as it simply reiterated what was said in the Inland Revenue Case regarding the words "relating to", that they were the widest possible words. As applied to the test in Section 18(1), those two cases do not assist the Applicant’s case. Respectfully, the submissions of learned Counsel Mr. Greenwood on the application of the effects doctrine must be rejected.
The case United Parties v. Minister of Justice, Legal and Parliamentary Affairs [1998] 1 LRC 614, cited by learned Counsel Mr. Moti on the other hand, is directly on point. That case dealt with an application by one of the political parties United Parties, contesting in the national elections held in Zimbabwe in March 1990, that certain legislation (section 3(3) of the Finance Act) which provided for state funding of political parties (provided such party had not less than 15 elected members in the 120 seat Parliament of Zimbabwe), was inconsistent with the right to freedom secured under section 20(1) of the Constitution and therefore invalid. One of the arguments raised was the standing of United Parties to bring such an action for redress under section 24(1) of the Constitution. Section 24(1) is worded in very similar terms to our section 18(1) and so in pari materia. What the Supreme Court of Zimbabwe said in that case at page 618 is directly relevant to the issue before this case:
"Section 24(1) of the Constitution reads in material part: ‘If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him ... then, without prejudice to any other action with respect to the same matter which is lawfully available, that person ... may ... apply to the Supreme Court for redress.’
Unless the context otherwise requires, ‘person’ is defined in s 113(1) to mean ‘any individual or any body or persons, whether corporate or unincorporated.’
Thus s 24(1) affords the applicant locus standi in judicio to seek redress for a contravention of the Declaration of Rights only in relation to itself (the exception being where a person is detained). It has no right to do so either on behalf of the general public or anyone else. The applicant must be able to show a likelihood of itself being affected by the law impugned before it can invoke a constitutional right to invalidate that law (see Retrofit (Pvt) ltd v. Posts and Telecommunications Corp [1964] 4 LRC 489 at 497).
So it was in Re Wood [1994] 4 LRC 153 at 156-157, that this court held that the right to reside in any part of Zimbabwe, as guaranteed by s 22(1) of the Declaration of Rights, vested in the minor child of Mrs Wood and not in her. No constitutional right in relation to her was violated by the refusal of the immigration authorities to grant her a residence permit. See also Ruwodo NO v. Minister of Home Affairs [1995] 2 LRC 86
The Supreme Court of Zimbabwe concluded that the applicant, United Parties did not qualify as an applicant under section 24(1) to bring an action for redress on behalf of its members.
Application to the facts in this case.
Paragraphs (a)(2)(i – x) of the Notice of Motion of the Applicant seeks various declaratory orders on behalf of Members of Parliament and family members of Members of Parliament in respect of alleged contraventions of numerous provisions (sections 3, 4, 5, 8, 9, 11, 12, 13, and 14) of Chapter II. The first point to be noted about those orders is that they are too vague and general in their description of the persons relief is claimed on behalf of. The declarations in those paragraphs pertain to allegations of contraventions of fundamental rights of unidentified Members of Parliament and their family members. Who are those Members of Parliament and their families? I acknowledge a number of affidavits have been filed by some Members of Parliament but they have not been joined or their names mentioned. Are they the ones referred to? If so, then their identity should have been so stated. This Court cannot imply what is not expressly stated in the declarations sought, the effect of which would give quite a wrong impression. On that basis alone, those declarations should be refused.
A fortiori, those declarations (paragraphs (a)(2)(i – x)) cannot be granted, as the Applicant does not have locus standi to bring an action for redress in a representative or relator capacity. Those Members of Parliament and their Families ought not only to have been identified but joined as well. They have equal rights, guaranteed by the Constitution, as this Applicant to come to court for redress. That is the only way those declarations can be granted as they pertain to allegations of contraventions of their individual rights and not that of the Applicant. The flaw in Applicant’s submissions is in assuming that he had a fundamental right as Prime Minister to be protected under the Constitution. It is not the office of Prime Minister or the fact he was Prime Minister that is protected under the Constitution. The rights protected are his individual rights set out in Chapter II. It is those rights, contraventions of which the Applicant is entitled to agitate before this Court.
The approach taken by the Applicant in seeking to establish his locus standi by asking three questions in relation to the effects those threats, intimidation and harassment had on him in my respectful view is misconceived. After asking and correctly answering the first question, "Were the various threats directed at MPs and their families constitutional contraventions?" the Applicant went on to ask superfluous questions. Once the first question had been answered in the affirmative, it is unnecessary to ask about the effects they have on the Prime Minister. All they would have been required and entitled to do was to invoke section 18(1) for redress. They are the right persons to invoke section 18(1) for redress and not the Applicant on their behalf.
Paragraph (a)(3) of the Notice of Motion of the Applicant is objected to for the same reasons that the "Applicant was neither a candidate nominated for election nor a nominator of any candidate for election as Prime Minister". That the Applicant could only successfully challenge the election of Hon. Manasseh Sogavare as Prime Minister if he were a candidate himself or nominator of one of the candidates. He can then seek to impugn that election as a person directly affected. Respectfully, as a member present to elect the new Prime Minister that day he had opportunity to and did cast his vote for the candidate he supported. Accordingly, the submission of learned Counsel Moti is also correct on this point. I would have had no hesitation in granting locus standi had he applied under Section 83(1). Unfortunately by choosing to apply under Section 18(1) he confines himself to the test of locus standi required therein.
Section 83(2)
Applicant submits he had supplementary jurisdiction under Section 83 when proceedings under Section 18(1) are before the Court. This is based on the provisions of Subsection 83(2). Subsection 83(2) reads:
"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 II) has been contravened and to make a declaration accordingly:
Provided that the High Court shall not make a declaration in pursuance of the jurisdiction conferred by this subsection unless it is satisfied that the interests of the person by whom the application under the preceding subsection is made or, in the case of other proceedings before the Court, a party to those proceedings, are being or are likely to be affected."
Unfortunately that submission is misconceived. Subsection 83(2) does not give supplementary jurisdiction to this court to entertain any application dealing with allegations of contraventions under the Constitution when an application is before the Court under Section 18(1). Mr. Greenwood had quoted out of context, the phrase "The High Court shall have jurisdiction ... in any other proceedings lawfully brought before the Court to determine whether any provision of this Constitution ... has been contravened ..." as supporting his submission that it gave the Applicant supplementary jurisdiction under Section 18(1). The crucial words "(other than Chapter II)" however were ignored. The meaning and effect of Subsection 83(2) in my respectful view is plain. Subsection 83(2) refers to the jurisdiction of the High Court in relation to any allegations of contraventions of the Constitution other than Chapter II. Any applications for redress therefore regarding any allegations of any contraventions pertaining to provisons of the Constitution other than Chapter II should be made under Section 83(1) and not under Section 18(1). The latter caters specifically for allegations of contraventions under Chapter II. The submission therefore by learned Counsel that the Applicant is entitled to impugn the election of Hon. M. Sogavare under Section 18(1) on the grounds that his rights and interests under Section 34(4) have been affected is mistaken. Any application for redress regarding any allegations of any contraventions of Section 34(4) should be made under Section 83(1). He has not done that and so Subsection 83(2) cannot be invoked to enliven any jurisdiction, which this Court does not have under Section 18(1) to deal with any issues under Section 34(4). The right for redress under Section 18(1) is confined to allegations of contraventions under Chapter II.
Objections of non-justiciability
The objections of non-justiciability are based on the premise, that there was a valid resignation by the Applicant, as former Prime Minister on 13th June 2000. Thereafter the office of Prime Minister became vacant, a valid election meeting conducted and Hon. M. Sogavare elected as Prime Minister. Learned Counsel Mr. Moti submits no dispute had been referred to the Governor-General arising out of or in connection with the calling or conduct of the said election pursuant to paragraph 10 of Schedule 2 to the Constitution and accordingly his Excellency’s determination of the election result was final and conclusive and cannot be questioned by this Court. Learned Counsel further submits the alleged contraventions of Sections 34(4), 33(1) and 34(3) are not justiciable or redressable in any event under Section 18(1) of the Constitution as the proper gateway provided for under our Constitution is Section 83(1). Having failed to institute proceedings timeously under said Section, the Applicant cannot now be permitted to proceed under Section 18(1) to ventilate and remedy his complaints of constitutional contraventions. Mr. Moti also submits that the appropriate time for invocation of proceedings under section 83(1) would have been the period before the election meeting on 30th June 2000. It is now too late to seek redress even if they could. He further submits that by failing to promptly refer a dispute to the Governor-General under paragraph 10 of Schedule 2 the Applicant effectively waived his rights to question the election process and after a lapse of one year had thereby acquiesced in the results of that election.
Submissions of the Applicant
Applicant’s submission against non-justiciability is not that the meeting of 30th June 2000 was irregular and therefore invalid, but that the events subsequent to the calling but preceding the conduct of the meeting were so tainted with illegality that the said meeting could not be said to have been a valid meeting. The Applicant submits he and his coalition supporters (Members of Parliament) had been subjected to physical threats, intimidation, violence and harassment for the sole purpose of preventing them from attending the election meeting. In consequence four members refused to turn up out of fear. Another two could not attend, due to cancellation of their flights out of Brisbane as a direct consequence of the security problem in the Capital at that time. The meeting of 30th June 2000 therefore could not have been convened in accordance with the Constitution and Schedule 2. The presence of threats and the lack of an effective police force, creating an atmosphere of insecurity and fear under which the said meeting was called, invalidated the legitimacy of that meeting. Learned Counsel, Mr. Greenwood submits it is a fundamental requirement of the Constitution, gleaned from the provisions of Chapter II, that the presence of any such threats nullifies any meeting of Parliament.
Learned Counsel quoted from Pride’s Purge as an introductory to and in support of his submissions on this point. The story of Pride’s Purge related to attempts by the Parliamentary Army in the 17th Century to put King Charles I on trial. Before impeachment procedures could be instituted in the House of Commons, a majority was needed. The army knew they did not have a majority. The only way they could do it was by force. Colonel Pride obtained a list of MP’s who were loyal to the King and on the morning of 6th December 1948 surrounded Parliament with his troop. Those who were on the list were prevented from attending Parliament that day. When asked what authority he had he pointed to his sword. This resulted in the successful commencement of impeachment proceedings against the King, culminating in his trial and execution on 30th January 1649. Mr. Greenwood submits there is a fundamental assumption that a valid meeting to the House of Commons does not take place if selected members are illegally prevented from attending. He submits if a similar situation were to arise in England today, the Common Law would have no difficulty in coming to the conclusion that the proper functioning of Parliament necessarily involves the freedom of members of Parliament to attend sittings of the House of Commons and meetings of its various Committees. He seeks to extend the application of that fundamental assumption to the facts of this case.
Learned Counsel relied on three crucial cases, Ridge v. Baldwin [1963] UKHL 2; (1964) A.C. 40, Anisminic Ltd v. The Foreign Compensation Commission and Anor [1968] UKHL 6; (1969) 2 AC 147 (hereinafter referred to as "the Anisminic’ Case"), and an Australian case, Australian Capital Television Pty Ltd and the State of NSW v. The Commonwealth [1992] HCA 45; (1992) 177 CLR 106, (hereinafter referred to as "the ACT Case") in support of his submission, that this court has jurisdiction to deal with the question whether the meeting of 30th June 2000 was valid or not. Learned Counsel submits that where there has been an absence of a free and fair meeting, this court must have jurisdiction not only to deal with such matter, but also to intervene where necessary. The ouster clause in paragraph 10 of Schedule 2 therefore cannot assist the Respondents in this case.
Learned Counsel further submits that the provisions of Chapter II must be extended to protect meetings convened under Schedule 2 in the election of a Prime Minister under Sections 33(1) or 34(4). So much so that if rights of Members of Parliament are being deliberately interfered with to the extent they are unable to attend Parliament, this court must have jurisdiction to determine whether such a meeting is valid or not.
Issue on non-justiciability
This court is required to determine whether in the circumstances of this case, it has jurisdiction to decide whether the meeting of Parliament convened on 30th June 2000 was valid or not. This necessarily entails the scope and ambit of paragraph 10 to Schedule 2 relied on by the Respondents. The second part deals with the question whether even if the court has jurisdiction it should in the circumstances of this case go ahead and deal with it. The second part in the Respondent’s submissions suggests that even if that is so, this court should refrain from exercising its jurisdiction.
The Law on non-justiciability
In dealing with the issue of non-justiciability in this application, it is pertinent the scope or ambit of the Governor-General’s powers as to the type or kind of disputes that can be referred to him for his determination be scrutinised. What kind of disputes can and should be referred to him? Paragraph 10 of Schedule 2 to the Constitution is the relevant clause:
"Any dispute arising out of or in connection with the calling or conduct of any election meeting or the election of the Prime Minister under this Schedule shall be determined by the Governor-General whose determination of the matter in dispute shall be final and conclusive and shall not be questioned in any proceedings whatsoever."
The crucial words are "Any dispute arising out of or in connection with the calling or conduct of any election meeting or the election of the Prime Minister". There are two key phrases, "arising out of" and "in connection with" which determine the ambit of disputes, which His Excellency can determine. The former pertains to disputes emanating from the calling or conduct of any election meeting or the election of the Prime Minister, the latter relates to disputes that are connected to the election. The phrase "arising out of" is more specific, pertaining to matters specified in the functions of the Governor-General as spelled out in Schedule 2. They relate to any disputes pertaining to the calling of an election meeting (paragraph 1), the list of candidates (paragraph 2), nominations of candidates (paragraph 3), powers of the Governor-General to counter-mand an election (paragraph 4), voting (paragraph 5), conduct of the meeting itself (paragraph 6), and voting procedure (paragraph 7). His Excellency has power to determine any disputes arising out of the functions spelled out in those paragraphs.
The phrase "in connection with" is more general. Any dispute in connection with the calling or conduct of any election meeting or the election of the Prime Minister may be referred to the Governor-General for his determination. The word "connection" is defined in Oxford Advanced Learner’s Dictionary of Current English, published by Oxford University Press, 1974 as "connecting or being connected; (note connect is defined as ‘join, be joined, think of as being related to each other’); point where two things are connected". Black’s Law Dictionary, sixth edition defines it as: "The state of being connected or joined; union by junction, by an intervening substance or medium, by dependence or relation, or by order in a series." There are basically two types of connections; close connections – a direct link or association, as opposed to remote connections or indirect connections. The kind of disputes envisaged under paragraph 10, to be in connection with any election meeting or election of Prime Minister is the kind of dispute that is direct or close, where the links are clearly defined. The convening of an election meeting falls within that ambit. It is also one of the functions anyway, which is intertwined (connected, joined, linked) with the calling and conduct of an election meeting, and therefore comes within the scope of the calling or conduct of an election meeting. There can be no calling or conduct of an election meeting without the convening of a meeting.
This brings me to the question whether the use of threats to prevent the attendance of Members of Parliament at the election meeting, is a dispute arising out of or in connection with the calling or conduct of the election meeting? Mr. Greenwood says it is not, Mr. Moti says otherwise. I think assistance can be obtained by asking the question, is it a matter, which is related to the calling or conduct of the election meeting? Is there a direct link – a connection, between those threats and the calling and conduct of the meeting of 30th June? In my respectful view, the answer must be yes. The thrust of the Applicant’s submissions on this point is that the meeting was invalid as a result of the presence of threats and the extreme situation prevailing in the Capital at that time. That with respect is directly connected with the calling, convening and conduct of the meeting on 30th June 2000. Anything to do with the question, whether a meeting is valid or not, is a matter which his Excellency must have an interest and jurisdiction. Obviously if there is anything that would render or affect the validity of an election meeting, his Excellency would have been obliged to consider before making any further decision whether to continue or not. He had power under paragraph 4 of Schedule 2 to suspend the meeting if he considers in his own deliberate judgment that should be done. Should Applicant have raised his concerns before his Excellency at the said meeting? The answer again must be yes. He should have timeously raised it before his Excellency at said time. He had opportunity to do so in the privacy and security of the chambers of Parliament and ask his Excellency to rule on it. Paragraph 6(3) of Schedule 2 provides that the election meeting shall be in camera. He did not do so. By remaining silent, he had effectively waived his rights to question the election process and acquiesced in the results. He is bound by that result.
He cannot now be permitted to come to Court via the provisions of Section 18(1) when he had waived his rights to challenge the validity of the meeting through the constitutionally ordained route – paragraph 10 of Schedule 2. The ouster or privative clause in paragraph 10 seals the result and this court is not permitted to open it.
The words of our Court of Appeal in The Governor-General v. Solomon Sunaone Mamaloni Civil Appeal Case Nos. 1 & 3 of 1993 CASI, 5th November 1993, at page 4, referring to the ouster clause therein, are apposite:
"This type of provision is commonly called a finality or ouster or privative or preclusive provision, that is one which excludes the jurisdiction of the Courts to determine the correctness of the determination, provided always that the tribunal (here the Governor-General) has acted within jurisdiction. The expression "within jurisdiction" is a legal phrase meaning no more than that such a law requires the Courts to hold their hands where the tribunal in question has done the very task assigned to it by, in this case the Constitution, and in other cases the relevant statute. No better exposition of the limits of such a provision will be found than in the decision of the House of Lords in Anisminic Ltd v. Foreign Compensation Commission [1968] UKHL 6; (1969) 2 A.C. 147; (1969) 1 All E.R. 208."
After quoting the classic passage of Lord Reid at page 171 of the Law Report or page 213 of the All England Law Reports, their Lordships continued at page 7 of their judgment:
"Mr. Mamaloni’s application was made under s. 83(1) of the Constitution which empowers an application to be made for relief by any person who alleges that his interests are being, or are likely to be, affected by the contravention of a constitutional provision. Section 83(1) is however expressly subject to para. 10 of Schedule 2 which must prevail over it. In the absence of error such that the determination was a nullity for any of the reasons given by Lord Reid, or we would add, analogous reasons, it is final and conclusive and cannot be questioned in the Courts whether it be right or wrong."
No allegation of impropriety, error listed in Lord Reid’s judgement or analogous reasons has been raised against the calling, convening and conduct of the said election. The decision is final and conclusive and cannot be questioned in this court whether it is right or wrong. This conclusion effectively disposes of the submissions of the Applicant in which he sought to rely on the case authorities in Ridge v. Baldwin (ibid), the Anisminic’s Case and the ACT Case, being clear authorities on the proposition of law that the court has jurisdiction to determine whether a decision is a nullity or not. That basic proposition is not denied. It has been recognized by our Court of Appeal in The Governor-General v. Solomon Sunaone Mamaloni Civil Appeal Case Nos. 1 & 3 of 1993 CASI, 5th November 1993. The analogy drawn by the Applicant in the circumstances of this case was that; this court should declare the election meeting of Hon. M. Sogavare a nullity in view of the extreme circumstances prevailing in the Capital as they affected the Applicant and his coalition supporters. There is a difficulty however. In order for the court to visit that meeting with its judicial axe, and hew the validity of that election meeting down, the Applicant must first impugn the declaration of the Governor-General that Hon. M. Sogavare was the duly elected Prime Minister. And the only way that can be done is for him to show that the Governor-General had committed a jurisdictional error, i.e. one of the errors listed in Lord Reid’s judgment or analogous reasons. Respectfully, such error can only be committed if it was alleged his Excellency failed to take into account the circumstances affecting the Applicant and his coalition supporters. The submission of the Respondents on this and conceded by the Applicant is that no such error had been committed by the Governor-General. There is no evidence to suggest the Governor-General failed to take that factor into account. His Excellency has not been joined and no declarations have been sought to invalidate his decision or declaration. This is consistent with the view that he has committed no such errors. Instead the Applicant seeks a general declaration, which if granted, would have the effect in any event, of nullifying or invalidating his decision. Respectfully he cannot be permitted to do that unless he challenges the decision of the Governor-General. His Excellency has express powers to perform regarding the election of a Prime Minister. It is clear he had complied with all the necessary requirements imposed upon him under Schedule 2. There is no evidence to suggest he was not aware nor did not take into account, the fact threats had been imposed upon the Applicant and other members of Parliament, and that they had been intimidated or harassed. It was common knowledge and I take judicial notice of the fact that the police force at the relevant time was not in control of law and order in the Capital. That matter was in the hands of the Joint Operation and their members. In spite of that, his Excellency went ahead to call and convene a meeting of Parliament in accordance with Schedule 2. No objection or dispute was raised on 28th June or 30th June 2000. The material before this court points conclusively to the view that the decision made by the Governor-General to re-convene the meeting on 30th June was a deliberate judgment taken in the light of and cognizant of the abnormal and extreme situation prevailing in the Capital at the said time. There is no evidence to suggest he did not take into account those threats complained of by the Applicant, never mind the fact they had not been formally raised before him. And so even if this Court had jurisdiction under Section 18(1), the seal cannot be opened, the ouster clause in paragraph 10 to Schedule 2 applies.
But even if this court should rule otherwise, Mr. Moti submits that the Applicant could only have been permitted to bring an action to challenge the validity of the meeting under Section 83(1) and not Section 18(1). The Applicant having also failed to do so is prevented from circumventing that constitutionally ordained route. I agree.
The application of the Applicant is mistaken as well for the following reason. The allegations of contraventions of the rights of the Applicant are not so much against the Governor-General as against the Respondents, JPM/MEF and their members. That is clear from the affidavit material filed. The substantive issue arising for determination from the Notice of Motion, Statement and affidavits filed in support is even if the allegations, (that the harassment, threats and intimidation of the Applicant and Members of Parliament were for the purpose of preventing him from being nominated as one of the candidates for Prime Minister and for preventing their candidate winning the election as Prime Minister, and those who masterminded the coup of 5th June 2000 were the Respondents) are found to have basis, can the Court grant relief in the form of the declarations sought? I think herein lay the crucial distinction. Relief is sought against the Governor-General as if he was at fault, to be blamed for the contraventions of the Applicant’s rights, but that is not so. The allegations of contraventions are against private individuals and the Joint Force, not the Governor-General. The admonitory note issued by the Privy Council (per Lord Diplock) in Kemrajh Harrikissoon v. Attorney-General of Trinidad and Tobago [1980] AC 265, 268B-E, referred to in Counsel Moti’s submission is on point:
"The notion that wherever there is a failure by an organ of government or a public authority or a public officer to comply with the law this necessary entails the contravention of some human right or fundamental freedom guaranteed to individuals by Chapter I of the Constitution is fallacious. The right to apply to the High Court under section 6 [which is substantially similar to our section 18] of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application to the High Court under section 6(1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom." (Emphasis added)
The Applicant’s case by comparison is weaker, a fortiori the allegations of contraventions of rights are not made against any organ of government, public authority or public officer, but against individuals. Therein lies the defect in his application. The Governor-General has not been joined or allegations raised that he had contravened any of the rights of the Applicant protected in Chapter II, or failed to take into account any material factor (Lord Reid’s list in Anisminic’s Case), that would justify a visitation of his determination by this Court. In paragraphs 14-17 of the Statement Accompanying Application for Leave the Applicant expressly states that his application is made against the Respondents and members of the Joint Force. At paragraph 18 he identifies those responsible for the alleged contraventions of his rights and those of his coalition supporters:
"In the premises the meeting of Members of Parliament on 30th June 2000 was perverted by the coup leaders and no valid and constitutional exercise of the power to elect a Prime Minister has taken place".
Those responsible and against whom his application for redress is directed against were, the coup leaders. The coup leaders however did not have control over the proceedings of the election meeting called, convened and conducted on 28th June and 30th June 2000. After the resignation of the Applicant as Prime Minister, the Governor-General called a meeting of Parliamentary members in accordance with paragraph 1 of Schedule 2. He did this as soon as it was possible to do so in the extreme situation prevailing in the Capital at that time. The Governor-General had control at all times though it can be said things were not normal. He was obviously under a lot of pressure and the situation was extreme on the ground. Yet he did what was necessary, urgent and reasonable in the circumstances. The ball was in his court and he did the best he could in abnormal circumstances. He exercised his functions in his own deliberate judgment and convened a meeting of members to elect a Prime Minister as soon as possible. Any disputes to his actions therefore should have been raised before his Excellency in the private chambers of Parliament. Two things could have occurred, had objection been raised. His Excellency could have suspended the meeting further to allow time for other members of Parliament to attend (he had power to do so under paragraph 4 of Schedule 2) or he could have simply decided to proceed in the light of what the country was going through, that it was paramount a new government be established as soon as possible. He did not have to consider those options as no dispute was raised.
In Russell (Randolph) and Others v. Attorney-General of St Vincent and the Grenadines (1995) 50 WIR 127 at 138c-f, also referred to by learned Counsel Moti, referring to a similar provision [section 96(7) of the Constitution of St Vincent and Grenadines] to our paragraph 10 of Schedule 2, Sir Vincent Floissac CJ (Byron and Liverpool JJA concurring) issued a judicial rebuke to the approach adopted by the applicants in that case. The position is not too dissimilar to the case at hand. Two of the Appellants (C and S) did not participate in the national elections held in February 1994 as their names had been omitted from the electoral roll. They applied under section 96 of the Constitution of St Vincent and Grenadines (similar to our section 83) for a declaration that the election had been held in contravention of section 33 of their Constitution. Section 96(7) however excluded any question referred to in section 36 of the Constitution from being dealt with under section 96.
"By expressly excluding the parliamentary jurisdiction from the constitutional jurisdiction, section 96(7) of the Constitution ensures that a constitutional contravention which may theoretically have affected the validity of a parliamentary election is not used as pretext for invoking the constitutional jurisdiction for the purpose of invalidating the parliamentary election. Section 96(7) also ensures that the constitutional jurisdiction is not available as a means of circumventing the strict substantive and procedural rules which govern the parliamentary jurisdiction and applications for determinations of questions as to the validity of parliamentary elections or as a means of gaining ultimate access to Her Majesty in Council under guise of seeking to enforce a constitutional provision. By virtue of section 96(7) and the evident objects thereof, I would affirm the trial judge’s decision that the jurisdiction conferred by section 96 was not the appropriate jurisdiction for the entertainment of the appellant’s notice of motion in so far as it relates to the general election or the alleged invalidity thereof."
Similar comments can be expressed regarding the application of the provisions in Schedule 2. Whilst paragraph 10 of Schedule 2 does not expressly exclude the calling, convening or conduct of an election meeting from the jurisdiction of the High Court, the effect by virtue of the ouster clause is the same, that any constitutional contraventions, which theoretically may affect the validity of such meetings is not used as a pretext for invoking the constitutional jurisdiction for the purpose of invalidating such meeting. Paragraph 10 also would have the effect of ensuring that the constitutional jurisdiction is not available, save the commission of a jurisdictional error of law and through Section 83(1), as a means of circumventing the strict substantive and procedural rules, which govern His Excellency’s jurisdiction. It would be a misuse of the constitutional jurisdiction to come in a circuitous manner via Section 18(1) for the purpose of invalidating the election meeting of 30th June 2000. Further, the jurisdiction conferred by section 18(1) is not the appropriate avenue for the entertainment of the Applicant’s Notice of Motion in so far as it relates to the validity of the election meeting or the election of the Prime Minister. The appropriate route is by paragraph 10 of Schedule 2 or Section 83(1).
Doctrine of necessity
The doctrine of necessity was cited by learned Counsel Mr. Nori in his submissions in reply to counter any suggestions that the Applicant was entitled to remain as Care-taker Prime Minister until a valid election was held, indirectly challenging the validity of the election of Hon. M. Sogavare as Prime Minister. Learned Counsel relied on two recent decisions, The Republic of Fiji and The Attorney-General of Fiji v. Chandrika Prasad CAC No. ABU0078/2000S, 1/03/2000, and The Rev. Akuila Yabaki & Others v. The President of the Republic of Fiji Islands and The Attorney-General High Court of Fiji, Civil Action No. HBC119 of 2001S, in support of the doctrine of necessity. It is not necessary to quote the facts in detail other than to state that in both cases the Courts gave recognition to the said doctrine in extreme situations that warranted the departure from lawful compliance by the executive government or armed forces in the interests of preserving the Constitution or the rule of law. The situation which occurred in Fiji was not too dissimilar to the situation in Solomon Islands. There was a coup by disaffected indigenous Fijians led by their notorious leader George Speight. The Prime Minister was held hostage in Parliament for a number of days. The regular Fijian Police Force could not control the situation on the ground and the Army took over. The Constitution of Fiji was abrogated by the Army Commander, Commodore Bainimarama and out went the Office of the President Ratu Sir Kamisese Mara. The Army took over and imposed martial law. The Fiji Court of Appeal described the events as follows at page 17:
"Section 187 of the 1997 Constitution did provide for the President to proclaim a state of emergency ‘acting on the advice of Cabinet’. Clearly, the President could not act under this section if almost all the members of the Cabinet were held hostages by the kidnappers. The imperative necessity for prompt action arose out of exceptional circumstances not provided for in the Constitution. These circumstances called for immediate action. There was no other course reasonably available to the President at the time the hostage crisis began. Later on, as the hostages continued to be confined and anarchy was developing, the Commander quite properly contemplated executive action by way of martial law to restore and/or maintain law and order. This was appropriate, so long as the extraordinary and frightening situation lasted. The crisis did not end until all the hostages had been released and some calm restored.
....
The doctrine of necessity enables those in de facto control, such as the military, to respond to and deal with a sudden and stark crisis in circumstances which had not been provided for in the written Constitution or where the emergency powers machinery in that Constitution was inadequate for the occasion. The extra-constitutional action authorized by that doctrine is essentially of a temporary character and it ceases to apply once the crisis has passed."
The Court concluded at page 18 as follows:
"The doctrine of necessity would have authorized him to have taken all necessary steps, whether authorized by the text of the 1997 Constitution or not, to have restored law and order, to have secured the release of the hostages, and then, when the emergency had abated, to have reverted tot eh Constitution. Had the Commander chosen this path, his actions could have been validated by the doctrine of necessity. Instead, he chose a different path, that of constitutional abrogation. The doctrine of necessity does not authorize permanent changes to a written constitution, let alone its complete abrogation."
In the Solomon Islands context, a coup took place on the morning of 5th June 2000, the Prime Minister was placed under house arrest by the Joint Force. The Police Force collapsed replaced by an illegitimate force. The Prime Minister was forced to resign which he did on 13th June 2000. Unlike the Fiji situation, the Governor-General did not resign or was ousted or the Constitution abrogated. He remained in Office though no longer in control as Commander of the Royal Solomon Islands Police Force, there was no effective Police Force under his command that he could summon. The situation was extreme but that did not stop him from exercising his constitutional functions in as best he could and in his own deliberate judgment. This was the crucial distinction in the events, which happened in Solomon Islands compared to Fiji. The integrity of the Constitution was maintained, in spite of the extreme situation prevailing in the country with His Excellency doing what he had to do under the Constitution and convening a meeting of the members of Parliament to elect a new Prime Minister as soon as possible. His Excellency has not been joined as a party and his actions and decisions unchallenged. In the circumstances I find it is not necessary to apply the doctrine of necessity to the facts of this case. Apart from that, it would have been a very relevant factor for consideration.
Case Authorities relied on by the Applicant.
Substantial reliance had been placed by learned Counsel Mr. Greenwood on the three cases Ridge v. Baldwin, the Anisminic’s Case and the ACT Case. A common thread however distinguishes those three cases. In Ridge v. Baldwin, the meeting was held a nullity on the ground that the Watch Committee had failed to observe the rules of natural justice. In the Anisminic’s case, the British Foreign Compensation Commission took into account an irrelevant factor, resulting in it committing a fundamental error. The Court held its decision to be a nullity. In the ACT Case, the High Court of Australia held that the implied right of freedom of communication in relation to elections had been infringed by Part IIID of the Broadcasting Act 1942 and ruled it to be invalid.
The Applicant’s case however is different. In order to invalidate the election meeting held on 30th June 2000, the decision of the Governor-General has to be impugned. His Excellency has not been joined and no application made to impugn his decision. There is no allegation of any jurisdictional error having been committed by him or that any legislation is inconsistent with the terms of the Constitution. Any reliance on those cases therefore is also mistaken.
For the reasons given, the declarations sought in paragraphs (a)(1), (3), (4), (7) and (b) of the Notice of Motion of the Applicant are non-justiciable as against the Respondents.
Objections to Horizontal Application of Chapter II
The objection of the Respondents that they have been improperly joined and not proper persons against whom redress can be claimed relates to paragraphs (a)(1) – (7) inclusive and (b) of the Applicant’s Notice of Motion. They rely on paragraphs 1 and 11-14 of the Affidavit of the Second Respondent filed 10th September 2001 and at paragraphs 1 and 3 – 5 of the Third Respondent’s sworn Affidavit filed on 20th September 2001. The crucial submission of the Respondents is an interesting one, based on the interpretation and application of the provisions of Chapter II of the Constitution, whether they apply to relationships between the State and private persons only or include that of private persons. They rely on a number of Commonwealth authorities:
Learned Counsel Moti submits that the rights protected in Chapter II are rights of a private citizen as against contraventions by the State, or other public authority. To that extent the Respondents who did not occupy any office of emolument in the Public Service during that time cannot be sued in their private capacities. He contends the proper party to defend the allegations of contravention leveled against the State is the First Respondent on the grounds that the State is ultimately responsible for the "protection of law" and the maintenance of order. Between 5th June and 30th June 2000, the responsibility for government of the country notionally vested in the Applicant. Neither the Second nor Third Respondent was endowed by law with coercive powers of the State. The fact they had been sued in their personal and private capacity only highlights the absence of any "legal nexus" between them and the Applicant (Paia & Other v. CC Abe & Another unreported, HCSI, CC 30/93 at page 5).
Alternatively, Learned Counsel submits that they are not the proper respondents to the Applicant’s application for redress as this is dependent on the nature of the right or freedom implicated. Reliance is also placed on two Canadian publications which go against the judicial extension of the vertically – based (i.e. state-citizen) application to Chapter II to the horizontal plane of private litigation of inter-citizen disputes:
Submissions of the Applicant
Mr. Greenwood submits that the rights protected by Chapter II include rights on a horizontal plane and not merely rights on a vertical level between private citizen and State. He relies entirely on the minority decision of Kapi JA in Loumia v. DPP [1985/1986] SILR 158 168-169 (hereinafter referred to as "Loumia’s Case").
Loumia’s Case
Loumia’s Case involved an application by the Appellant who had been convicted by the High Court for murder. He had participated in a fight between a group of Kwaio men and another group known as the Agia. The Appellant had seen one of his people wounded and another killed and so joined in the attack and killed a member of the other group. He argued before the High Court that the duty in custom (Kwaio) to kill when another member of his group has been killed should be recognized as part of the law of Solomon Islands under paragraph 3 of Schedule 3 to the Constitution. This would have the effect of reducing the offence of murder to manslaughter. The High Court rejected his submissions inter alia, on the grounds that it was inconsistent with the provisions of section 4 of the Constitution. He argued before the Court of Appeal, that Section 4 of the Constitution applied only to relationships between private persons and the State and not to those between private persons, therefore the appellant’s duty to kill was not inconsistent with Section 4. Section 4 dealt with the protection of right to life.
The majority, Connolly JA (Wood CJ concurring) held that the relationship should be confined to a vertical one. He cited with approval the principles established by the Privy Council in Ramesh Lawrence Maharaj and Thornhill (ibid) at pages 161-162:
"It was argued that s.4 and indeed most of the other fundamental rights provisions do not relate to relationships between private persons but rather to relationships between the State and private persons. It is contended therefore that the fundamental rights provisions are concerned with the field of public civil law and have no application in the present case. It may be conceded for present purposes that most of the provisions of Chapter II are principally concerned with the relations between the citizen and the state. See Maharaj ...; Thornhill ...; both of which were decisions of the Privy Council.
The fundamental rights and freedoms of the individual may be infringed by the State in, broadly speaking, one of two ways. The infringement may occur arbitrarily and in defiance of the general rules of law. In such circumstances the individual has his remedy in the courts. It is thus not strictly necessary, though it may be salutary, to have contained in the Constitution provisions guaranteeing these fundamental freedoms. The evident purpose of the provisions of Chapter II is to prevent the infringement of those freedoms by the enactment of laws or regulations which impair them."
His Lordship Kapi JA dissented. After distinguishing the application of Maharaj v. Attorney General of Trinidad and Tobago (No. 2) [1978] UKPC 3; (1978) 2 All ER 670, he continued:
"For these reasons, I do not consider that the broad principle stated by the Privy Council can be readily applied without proper examination of the provisions of the Constitution of Solomon Islands.
Having regard to the provisions relating to fundamental rights in the Constitution of Solomon Islands, I cannot find any support for the submission made by counsel for the appellant. It is true that most of the provisions in ch. II are principally concerned with relations between citizen and the State. However, I cannot find any words in s. 4 which would confine the protection against deprivation of life by the State only. The words, "No person shall be deprived of his life intentionally...." must be given a wide and generous application. Ministry of Home Affairs & Another v. Fisher and Another [1979] UKPC 21; (1979) 3 All ER 21, per Lord Wilberforce.
Purpose of s.4 is to protect the right to life against any person or authority (including) the State. This can be inferred from s. 4(2)(a) where it is permissible under a law (e.g. s. 17 of the Penal Code) to allow a private person to kill another in defence of another person or property. The implication is that s. 4(1) prohibit deprivation of life by a private person.
Examination of the other provisions in ch. II also support a wider application of fundamental rights provisions. Section 15(3) of the Constitution prohibits certain types of treatment as between private persons and private bodies.
The essence of fundamental rights provisions in Solomon Islands is that they apply to all persons and they are limited only by their terms and the qualifications set out thereunder.
I reject the submission by counsel for the appellant and find that the deceased were entitled to the protection of life under s. 4 of the Constitution."
His Lordship nevertheless found that the Kwaio custom was inconsistent with section 4(2) of the Constitution, thus reaching the same conclusion as the majority but by different routes.
If the submission of learned Counsel Mr. Greenwood is to be accepted, that the correct approach to be adopted by this court is the minority decision of Kapi JA then it opens up the following scenario under section 4. Any relatives of a deceased could come to this court via section 18(1) and argue that he/she is entitled to seek redresss for contraventions of the rights of a deceased person on the grounds that those contraventions affected him - were done "in relation to him". The floodgates to litigation would be opened and the courts inundated with claims. On the other hand, if the literal interpretation, (in my view, this is the correct interpretation) is applied, that "in relation to him" refers to the deceased, then an application for redress under S. 18(1) in respect of S. 4 can only be done prospectively by a person who faces the grim prospect of having his life being deprived intentionally. Learned Counsel Mr. Moti is correct on that point. Such conclusion is consistent with the majority view that the provisions of Chapter II are primarily concerned with the relationship of a private citizen and the State.
Kapi JA made reference to the provisions of S. 15(3) supporting his view of a horizontal application, but with respect I think there is a clear distinction inherent in that subsection. It focuses on the public character or nature provided by those enterprises and the need to safeguard public access. To that extent, it does not necessarily support the horizontal approach. But even if it does, it can be distinguished as an express provision providing for such horizontal approach. In the absence of an express provision, the provisions of Chapter II should be construed as applying on a vertical basis.
Other Case authorities
The High Court case of Fugui & Another v. Solmac Construction Company Limited and Others [1982] SILR 100 was a case in which an application for redress under Section 18(1) against a private company was made. The issue before the court was whether the applicant could seek redress for alleged contraventions of Section 8(1) of the Constitution where the acquisition or taking of possession of his trees were not done under statute or statutory regulation. Commissioner Crome noted as follows at page 116:
"In the context of the Chapter, Sections 8 sets out the terms upon which the fundamental right in 3(c), will operate, within the Constitution. In the nature of things no "compulsory acquisition", and I use the words loosely, between individuals can be "without compensation". The law will always order the return of the property or payment of damages against the Tortfeasor. The section can only have a meaning in the context of statutory compulsory acquisition where someone takes my canoe and I go to Court to seek its return and he pleads an Act of Parliament allowed him to commit his wrong, then the constitutional validity of that Act can be called in question." (emphasis added)
And at 117:
"If there is need to go further, the interpretation I have rejected, apart from granting what would be a constitutional right for a situation already well protected by the common law in actions for detinue and conversion, would grant an additional right in nearly every similar case ... But why have the word ‘compulsory’ at all if all that is meant is ‘acquisition’ i.e. the tort of trespass, detinue or conversion or the crime of larceny or a kindred offence? There would be multiplicity of motions claiming compensation under s. 18 for thefts and civil takings and a whole library of case law built up to decide if the taking was ‘compulsory’ or an ‘acquisition’ or something else. All to no purpose because the position is already covered at common law. Only when statute challenges common law does the question of deprivation of constitutional right under s. 8(1) arise.
....
In my judgment the fundamental right protected in S. 8(1) of the Constitution refers to an acquisition by right of statute or statutory regulation."
Commissioner Crome’s view on the application of S. 8(1) is consistent with the vertical approach. Jamakana v. Attorney General and Another [1983] SILR 127 is also consistent with that approach though the order for compensation was made against the Minister for his "personal involvement" in the unlawful actions of the Government under Section 17. Scope is provided for such orders under the said Section.
In Ramesh Lawrence Maharaj v. Attorney-General of Trinidad and Tobago (No 2) (1978) 30 WIR 310 ("Maharaj"), the appellant had alleged that his right not to be deprived of his liberty except by due process of law (guaranteed by s. 1(a) of the Constitution) had been violated. He had been committed to prison for 7 days for contempt of court by Maharaj J. It was argued by the Attorney General that the Judge was not the proper Respondent. The court held that the order made was done in the exercise of the judicial powers of the State. At page 318, their Lordships held, who was protected by those provisions:
"Read in the light of the recognition that each of the highly diversified rights and freedoms of the individual described in s 1 already existed, it is in their Lordships’ view clear that the protection afforded was against contravention of those rights or freedoms by the State or by some other public authority endowed by law with coercive powers. The chapter is concerned with public law, not private law. One man’s freedom is another man’s restriction; and, as regards the infringement by one private individual of the rights of another private individual, s 1 implicitly acknowledges that the existing law of torts provided a sufficient accommodation between their conflicting rights and freedoms to satisfy the requirements of the new Constitution as respects those rights and freedoms that are specifically referred to."
In Thornhill v. Attorney General (1978) 31 WIR 498, 515e – 516e (per Lord Diplock) (Privy Council), one of the issues considered was whether police officers came within the definition of persons endowed by law with coercive powers. It was held they came within the ambit of the provisions of Chapter I of the Constitution. Chokolingo v. Law Society of Trinidad and Tobago (1978) 30 WIR 372 dealt with the question whether Chokolingo’s claim as against the Law Society could be sustained under the provisions of s 6 of the Constitution. The Court held relief was not available against the Law Society even if made out as it was "not the State or an arm of the State or a public authority endowed by law with coercive powers" (389, per Sir Isaac Hyatali CJ; 395-396 per Corbin JA; 401 per Kelsick JA). Ramson v. Barker (1982) 33 WIR 183 also related to police action against the appellant. Court held the police were exercising coercive powers of the State and could be sued for alleged breaches of the appellants rights protected by article 12(1), 13(1) and 14(1) of the Constitution of Guyana (202 per George JA, Jhappan JA concurring). Alonzo v. Development Finance Corporation [1985] LRC (Const) 359 was an application by the appellant, an employee of the respondent, a statutory corporation, for redress that his fundamental rights and freedoms (right of freedom of assembly and association under section 13) guaranteed by the Constitution had been breached. He was dismissed for participating in negotiations between the union (United General Workers Union) of which he was a member, and the respondent. The respondent took offence at his activities, which it felt were incompatible with his managerial status in the corporation. The Court of Appeal of Belize (362 – 364 per Summerfield P) held:
"The fundamental rights and freedoms protected by the Constitution are not intended as guarantees of purely private rights, that is rights as between one individual and another. They are intended as protection afforded to individuals against any contravention of those rights and freedoms by the state or by some other public authority endowed by law with coercive powers. The employer in this case, although a statutory corporation set up by an Ordinance, is not a public body endowed by law with coercive powers. In its contractual relations with employees it is in exactly the same position as any private employer. Nothing turns on the fact that it is a statutory corporation. It is not exercising functions of a public nature when it engages personnel or terminates their contracts of employment." (Emphasis added)
Wijetunga v. Insurance Corporation of Sri Lanka [1985] LRC (Const) 335, also involved the grievances of an employee (appellant) of a public corporation (respondent) set up by legislation. The appellant was the Organizing Secretary of the Insurance Employees Union and had been involved in displaying posters in their premises, to the chagrin of the respondent. The appellant was subjected to disciplinary actions by the respondent. He complained alleging respondent’s conduct violated his fundamental rights of freedom of speech and right to join a trade union under Article 14(1)(a) and 14(1)(d) of the Constitution. The Supreme Court of Sri Lanka held that Article 126 and 17 entitled a person to apply to the Supreme Court only in respect of the infringement or imminent infringement of fundamental rights by executive or administrative action. His Lordship Sharvananda ACJ at 338–339 said:
"Article 126 read with Article 17 entitles a person to apply to the Supreme Court only in respect of the infringement or imminent infringement by "executive or administrative action" of the fundamental rights to which such person is entitled under the provisions of Chapter 3 of the Constitution. The jurisdiction of the Supreme Court to grant relief against any infringement or imminent infringement of the fundamental rights recognized by Chapter 3 of the Constitution is limited to cases of such infringement by "executive or administrative action"."
His Lordship then goes on to consider the meaning of "executive action" at page 339 of his judgment, which would have provided useful insight had any issue been raised as to whether the actions of the Respondents in this case amounted to "executive or administrative action". That is not contended and so does not arise.
Du Plessis v. De Klerk [1997] 1 LRC 637, was an application by the plaintiffs against the defendant newspaper claiming damages for defamation. The defendant applied to the Constitutional Court of South Africa to include in its defence the right to freedom of expression as contained in section 15 of the Constitution. The court rejected the application holding inter alia, that the provisions of Chapter 3 of the Constitution applied on a vertical basis only. In its judgment the court considered the application of the principle in other civil jurisdictions and concluded inter alia, "that the resolution of the issue must ultimately depend on an analysis of the specific provisions of the Constitution" (per Kentridge Ag J 660d).
Finally, the case of Andre Francois and Others v. Juris Ozols and Others (unreported, Vanuatu Court of Appeal, 25/06/98 dealt with provisions (Articles 5 and 6) of the Vanuatu Constitution having close equivalents to the provisions in our Chapter II in particular Sections 3 and 18(1). The Court held as follows:
"The opening words of Article 5 are critical to the understanding of the nature of the fundamental rights and freedoms that are guaranteed. The words "The Republic of Vanuatu recognizes..." are not apt to create new private rights and obligations between individuals. The words are a covenant by the Republic to all persons (subject only to a qualification in respect of non-citizens) that in its relationship with them the Republic will recognize the fundamental rights and freedoms set out in Article 5. The provisions of Article 6 provide the means by which compliance by the Republic can be enforced.
The purpose of Article 5 is to protect the individual against arbitrary or unjust treatment by the organs of government through which the affairs of the Republic are administered. The protection of private rights between individuals and the Republic, is ensured by other provisions of the Constitution, namely the provisions of Chapter 4 that establish Parliament to make laws for the peace, order and good government of Vanuatu, the provisions of Chapter 7 that establish the Executive to implement those laws, and the provisions of Chapter 8 which establish the Judiciary to enable individuals to enforce them.
For example, the protection afforded by Article 5(1)(f) against "unjust deprivation of property" is a protection against seizure or confiscation by government action. The general law already provides a comprehensive package of rules to protect against the invasion of commercial, economic or proprietary interests of one person by another person. Such rights are protected by the criminal law, and by civil laws such as the laws of contract and torts. In one sense if one person steals the goods of another, the victim of the theft has suffered an "unjust deprivation of property", but that injustice is not one that finds protection in Article 5. The injustice would be met by prosecution of the offender under the criminal law, and by civil action under the general law by the victim against the thief to recover the goods or their value.
The provisions of Articles 6 (and also those of Article 53) provide a new procedure for seeking the review of administrative decisions by organs of government and public officials, and the correction of inappropriate, unlawful or unjust exercises of government power. At common law such decisions could only be attacked through one of the prerogative writs, for example by a writ of certiorari, mandamus or prohibition. The procedures under these forms of writ were technical, restrictive and complex. Articles 6 and 53 impose none of these complications, and Parliament has ensured that access to the Courts is not to be hindered by any want of formality: see s218 (1) of the Criminal Procedure Code.
The rights and freedoms guaranteed by Article 5 are to be accorded a generous interpretation: Attorney- General v Timakata (1993) 2 Vanuatu Law Reports 679 at 682. But this does not mean that the provisions of Article 5 can be applied to situations that are quite outside their evident scope and purpose, which is to regulate the relationship between the Republic and its peoples.
It follows from this purpose that proceedings brought under Article 6 will name the Attorney-General as representing Vanuatu; see S.1 of the Law Officers Act [CAP.118], and may also name the Minister, government officer, or other public official whose exercise of power, or inaction, is said to constitute the Constitutional breach. If a Constitutional Petition names as a respondent someone who is a private individual, and not a government official, this is likely be an indication that the Petition is misconceived, and that it seeks to complain about the infringement of rights which are not rights and freedoms of the kind protected by Article 5."
Application
Apart from the majority view in Loumia’s Case, which this Court is obliged anyway to follow, this Court would be taking a giant leap against the tide of judicial view and thought in other jurisdictions if it were to extend the application of the rights protected under Chapter II to private actions between private citizens. This has been a crucial submission in the objections of the Respondents and a valid one, whether the provisions of Chapter II (the protection of fundamental rights) should be extended to private actions. This has been the gist of the Applicant’s application, that by virtue of the unlawful activities of the Respondents in consort with the fifth Respondent, this court should visit the election meeting of 30th June 2000 with its judicial axe and hew down its validity.
In the Canadian publication ‘Constitutional Law of Canada’ by Professor Peter W. Hogg, (4th edn, Carswell, 1997) at 858 –861, (also cited by Mr. Moti) the learned Professor reasserts what the role of a constitution is when dealing with such questions referring to the Charter of Canada:
"A constitution establishes and regulates the institutions of government, and it leaves to those institutions the task of ordering the private affairs of the people."
This concept or role is reiterated by another distinguished writer (also referred to by Counsel Moti) Professor Katherine Swinton in "Application of the Canadian Charter of Rights and Freedoms" in Walter S Tarnopolsky and Gerald A Beaudoin (eds), The Canadian Charter of Rights and Freedoms: Commentary (Carswell, 1982) 41 at 44-49:
"The purpose of a Charter of Rights is to regulate the relationship of an individual with the government by invalidating laws and governmental activity which infringe the rights guaranteed by the document, while relationships between individuals are left to the regulation of human rights codes, other statutes, and common law remedies, such as libel and slander laws."
Can the same be said of our Constitution in particular the provisions of Chapter II (the chapter on human rights)? In my respectful view, the text of Chapter II is plain and clear and leads to only one logical conclusion, that the rights protected therein, are the rights of private citizens from infringements by the State and or other public authority endowed by law with coercive powers. Paragraph (a) of the introductory part to our Constitution, often referred to as the Preamble makes this plain:
"Declare that
(a) All power in Solomon Islands belongs to its people and is exercised on their behalf by the legislature, the executive and the judiciary established by this Constitution;"
And in Section 2 it provides:
"This Constitution is the supreme law of Solomon Islands and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void."
In essence, the Constitution defines the limits and extent of legislative, executive and judicial power to be exercised by the State, its organs and officers in relation to the people of Solomon Islands. If Government Ministers, Officers, Servants, Agents or authorities exceed their powers and contravene the rights (Chapter II) of an individual or affect his interests (provisions of the Constitution other than Chapter II) then application for redress can be made under Sections 18(1) or 83(1). An example of a private person challenging the power of the State to enact a law that contravenes his rights under the Constitution is the recent case of Walter Folotalu v. Attorney-General HC-CC No. 234 of 2001, 19/10/01 (unreported). In that case, Mr. Folotalu challenged the increase of the non-refundable deposit from $2,000 to $5,000 effected by the National Parliament Electoral Provisions (Amendment) Act 2001 as contravening inter alia his rights to form or belong to political parties protected under Section 13 of the Constitution and thereby inconsistent under Section 2. This Court upheld his submissions and granted the declaration sought.
Section 3 contains a summary of the rights protected under the Constitution and the limitations to those rights:
"... the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."
Section 3 provides the framework in which those rights are to be protected. Sections 4 to 15 in turn set out in detail how those rights are protected and to be implemented. Under Section 4 for instance, the right to life of a person is protected from State intrusion save in execution of a sentence of a court in respect of a criminal offence and only after being duly convicted under a law in force in Solomon Islands (Subsection 4(1)). Subsection 4(2) further enlarges that limit in circumstances where a person dies as the result of the use of such force as is reasonably justifiable and permitted by law:
If we are to look carefully at the provisions of Section 4, it will be obvious that they refer primarily to the exercise of judicial or executive power of the State, exercised on its behalf by the Courts, the Police or Prison Service and/or agents of the Government, in the enforcement of the law. In other words, it seems plain that the persons intended to be bound or targeted in Section 4 are the persons exercising judicial or executive powers of the State. On the other hand, a private person who purports to exercise such power would open himself/herself to possible criminal charges of murder, attempted murder or conspiracy to murder or manslaughter, unless he/she can bring his actions within the confines of the law. If analysis is made in respect of the remaining provisions in Chapter II with the exception of Section 15(3), it is crystal clear, they were intended to regulate State power and authority over private rights and freedoms.
In order therefore, for the Applicant to succeed on the threshold issue raised by the Respondents, he needs to show under what executive or administrative authority his application is premised on. For only then, can he be permitted to continue with this action. Respectfully, he has not done that. On the contrary, it has been made plain and the Applicant does not deny this, that the Respondents are being sued in their personal capacities; the second Respondent as Member of Parliament and leader of the opposition grouping in Parliament, the third Respondent as Member of Parliament and member of the opposition grouping in Parliament, and both in their capacities together with the fourth Respondent as alleged leaders of the Joint Force. Apart from that, there is no evidence and no legal nexus suggesting or purporting to show that those persons were acting in any executive or administrative capacity for or on behalf of the State. There is no suggestion for instance that they were in league with the Governor-General and were taking orders from him.
In essence the allegations leveled against the Respondents and the Joint Force and their members, constitute some extremely serious breaches of our Penal Code. Applicant’s remedy lies in the Penal Code and the Criminal Procedure Code. The Police and Director of Public Prosecutions are the appropriate authority to deal with such contraventions. Other remedies lie in tort or contract.
Alternative Submissions
The Respondents have raised, as alternative submissions, a number of matters why they say they are not the proper respondents. Under Sections 3 and 4, they say this can only be redressed prospectively for threatened infringements, obviously not at the suit of a deceased person. To that extent, the Applicant cannot rely on Section 4(1) for redress against the Respondents. I agree. There is no threatened right to life that requires protection under said provision. Under Sections 12, 13, and 3, (provisions dealing with protection of freedom of expression and protection of freedom of assembly and association) it is clear the Applicant was present at the election meeting and exercised his right to vote by secret ballot. Under Sections 5, 9, 10, and 3, adequate means of redress are available under the criminal and civil law. Also under Sections 9, 10 and 3, there has been no suggestion that the Respondents were employed as police officers or performing any such functions under the relevant law during the month of June 2000.
The Attorney General
The learned Attorney General, Mr. Afeau expressed apprehension as to why he had been joined when it had been admitted in submissions of learned Counsel Mr. Greenwood that the calling and conduct of the election meeting in which Hon. M. Sogavare was elected as Prime Minister was not being challenged. This meant there was no State power or authority for him to defend in this application. Accordingly he should not have been joined. Mr. Afeau nevertheless conceded that the effect of declarations (a)(1), (3) and (4) of the Notice of Motion of the Applicant necessarily implied the said election meeting was invalid in any event. In his submissions on the objections of locus standi and non-justiciability, Mr. Afeau adopted submissions of Mr. Moti, though conceding that if this court should rule against both matters, there would then be grounds for joining the other Respondents. He also supported submissions of Mr. Nori on the application of the doctrine of necessity but reserved his submissions if the matter should continue to a further hearing. That is now not necessary. The learned Attorney however did point out correctly that if the Respondents were to be excised from these proceedings then he should also be removed.
Proviso to Section 18(2)
This is a crucial provision, which gives discretion to this Court to decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law. Respectfully, this is another ground, which I would also have found in favour of the Respondents and decline jurisdiction on the ground that it has been clearly demonstrated to me that adequate means of redress are and have been available to the Applicant under other laws.
In view of the way this Court has ruled the application of the Applicant must be dismissed not only against the second, third and fourth Respondents, but also against the first and fifth Respondents with costs. This means the Notice of Motion of the Applicant filed on 19th June 2001 is dismissed against all the Respondents. I order accordingly.
ORDERS OF THE COURT:
1. That the Second, Third and Fourth Respondents cease to be parties in this action.
2. That their names be struck out of the application for redress and all subsequent proceedings herein on the grounds that:
(a) the Second and Third Respondents are:
(i) improperly joined as parties hereto; and not persons from or against whom the Applicant is entitled to claim redress under the provisions of Section 18 of the Constitution in the form of the declaratory or other orders set out in paragraph (a)(1) – (7) inclusive and (b) of the Notice of Motion filed herein on behalf of the Applicant on June 19, 2001;
(a) the matters in respect of which redress is sought by the Applicant in the form of the declaratory or other orders set out in paragraphs (a)(1), (3), (4), (7) and (b) of the Notice of Motion filed herein on behalf of the Applicant on June 19, 2001 are not justiciable by virtue of paragraph 10 of Schedule 2 to the Constitution;
(b) the Applicant is not entitled under the provisions of Section 18(1) of the Constitution to apply for (and, accordingly, the Court lacks jurisdiction under Section 18(2) thereof to grant) redress from or against the Second and Third Respondents in the form of the declaratory orders set out in paragraphs (a)(2)(i) – (x) inclusive and (3) of the Notice of Motion filed herein on behalf of the Applicant on June 19, 2001.
3. Consequently, order that the Notice of Motion of the Applicant filed 19th June 2001 is dismissed in its entirety as against all the Respondents with costs.
THE COURT.
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