Nori v Attorney General [2006] SBHC 134; HCSI CC 172 of 2005 (4 April 2006)

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Attorney-General, and Sandie Piesley (Commander of the Participating Police Force of the Visiting Contingent to Solomon Islands), and Alan James Morton, Graeme Leigh Marshall, Brett Darren Pattie, Paul William Tubman, Michael David Zschorn and Gavin Alan Campbell

Andrew Nori in person
Nathan Moshinsky Q.C. and R. Ziza for the Attorney-General
Henry Burmeister Q.C. for the Second Defendants.
Sol-Law for the third – eight Defendants

1. The Plaintiff, Andrew Gabriel Hanaipeo Nori is a prominent lawyer in Solomon Islands. He operates his business under the name of Bridge Lawyers. It was common knowledge he acted as a spokesman and legal adviser for the Malaita Eagles Force ("MEF") and the Paramilitary Force, which comprised disaffected members of the Police and Prison Service, who joined forces with the MEF (hereinafter referred to as "the Joint Force") to resist the advances and illegal activities of the Guadalcanal rebel groups during the civil unrest. The Joint Force gained prominence when it masterminded an operation on 5th June 2000, forcing the then Prime Minister, Mr. Bartholomew Ulufa’alu and his Government to resign and engineered the election and set up of a new Government led by Mr. Manneseh Sogavare which held power right through to the 2001 elections. Thereafter, a new Government led by Prime Minister Sir Allen Kemakeza came to power and facilitated the intervention of the Regional Assistance Mission to Solomon Islands ("RAMSI") comprising of Pacific Island civilians, members of the armed forces and police forces from Fiji, Papua New Guinea, Samoa and Tonga led by Australia and New Zealand military and police contingents on 24th July 2003.

2. On 26th February 2005 the Third Defendant, members of the Participating Police Force ("the PPF"), obtained search warrants from the Magistrate’s Court in Honiara to carry out searches at the residence of the Plaintiff at the Skyline Ridge in Central Honiara, Solomon Islands, and at the Offices of the Bridge Lawyers Law Firm at Point Cruz Arcade in Central Honiara, Solomon Islands, of which the Plaintiff is the Principal.

On 28 February 2005 the Third to the Eighth Defendants carried out searches at his residence and Office and removed several documents, files and papers which belonged to him. The Plaintiff alleges those documents, files and papers have not been delivered to the Magistrate’s Court which issued the search warrants and have not returned the said documents, files and papers to him or his law firm.

Following the removal of those documents, files and papers the Third to the Eighth Defendants ordered the Plaintiff to accompany them to Rove Police Headquarters where they carried out detailed and lengthy interrogations.

During the course of the interrogations, the Third Defendant and one other witnessing member of the PPF maintained that they were police officers.

During the period between the time when searches were carried out at his residence and at his law firm and the time when he appeared in Court at about 4:50 o’clock in the afternoon of 28th February 2005, he was not free to go where he wanted and was virtually under the Third Defendant’s custody and unable to depart or leave at his free will.

As part of the investigation and interrogations carried out by the Third to the Eighth Defendants the Plaintiff was forced to be finger-printed without his consent.

Following the interviews the Third Defendant laid criminal charges against the Plaintiff which resulted in him appearing in the Magistrate’s Court at about 4:50 o’clock in the afternoon of the same day where bail conditions were ordered by the presiding Magistrate.

The Plaintiff was then released on bail with strict bail conditions which restricted his free movement as guaranteed under section 14 of the Constitution, including the confiscation of his passport.

The Plaintiff alleges that at the time when he appeared in Court numerous journalists were present, called in by the Second and the Third Defendant as a means to embarrass him or to draw public attention to his case.

He alleges that on or about 1st March 2005 detail facts of the charges and reason for the charges laid against him were published in the Solomon Star Newspaper when no such facts or statements were ever produced or disclosed to him during his Magistrate’s Court appearance the previous day.

He alleges that the unannounced and unexpected entry and search of his residence at about 7:30 o’clock in the morning on 28th February 2005 caused mental and psychological stress to members of his family, especially children and women. The unannounced and unexpected entry and search of his offices of Bridge Lawyers at about 11:30 o’clock in the morning on 28th February 2005 caused him and his other employees embarrassment, mental and psychological stress. The search of the Bridge Lawyers offices in the full view and to the full knowledge of clients resulted and led to a serious decline in client consultations during the subsequent days and weeks and the negative effects of the Third to the Eighth Defendants’ actions are continuing.

He estimates the loss of clients and business since the Third to the Eighth Defendants’ search of the offices at Bridge Lawyers is valued at 30 man-hours per days and is continuing.

The normal rate of fees chargeable by him and his other solicitors at the Bridge Lawyers Law Firm are as follows:-

(a)	Principal:	$600.00 per hour.
(b)	Snr Solicitor	$400.00 per hour.
(c)	Jnr Solicitor 1	$200.00 per hour
(d)	Jnr Solicitor 2	$200.00 per hour.
(e)	Article Clerk	$100.00 per hour.
(f)	Clerk	$ 80.00 per hour.

He claims that lawyers at the Bridge Lawyers Law firm work at least 8 hours per day from Mondays to Fridays while the Plaintiff also works for about five hours on Sundays.

By reason of the actions of the Defendants, he says he has suffered and continues to suffer damages in terms of business and financial loss.

(1) A declaration that the Facilitation of International Assistance Act No. 1 of 2003 is unconstitutional and void to the extent that –

(a) it establishes or provides for the operation in Solomon Islands of a police force independent of and operating outside the full command and control of the Commissioner as required by section 43 (3) of the Constitution;

(b) it establishes or provides for the operation in Solomon Islands of a police force whose members are not appointed by the Police and Prisons Service Commission or by the Commissioner as required by section 120 (1) and (2) of the Constitution;

(d) it directs the Director of Public Prosecution not to initiate any action against members of the Illegal Force for criminal actions committed in Solomon Islands.

(3) A declaration that the Second Defendant’s posts as the so-called Assistant Commissioner of Police and Commander of the Illegal Force are unconstitutional and unlawfully constituted;

(4) A declaration that the Second to the Eighth Defendants and all other officers and personnel of the Illegal Force who are currently carrying out police duties in Solomon Islands are not police officers under the provisions of the Police Act and are, therefore, legally unable to carry out police duties in Solomon Islands in accordance with Solomon Islands laws;

(5) A declaration that the Second to the Eighth Defendants and all the other personnel of the Illegal Force have illegally entered are illegally and unlawfully within Solomon Islands’ territory, in breach of Solomon Islands immigration and customs or border laws;

(6) A declaration that the applications by and the issue of search warrants to the Third Defendant on or about 25th February 2005 in respect of the Plaintiff’s residence and the Offices of the Bridge Lawyers Law Firm were unlawful as the said warrants were so issued in contravention of sections 101 and 102 of the Criminal Procedure Code Act;

(7) A declaration that the action of the Third to the Eighth Defendants in entering and carrying out searches of the Plaintiff’s residence at Skyline Ridge in Central Honiara and at the Offices of Bridge Lawyers Law Firm at Rooms 309 and 310 on Level 3, Point Cruz Arcade in Central Honiara on 28th February 2005 were unlawful and illegal and amounted to trespass;

(8) A permanent injunction restraining the Second to the Eighth Defendants and any other officers or members of the Illegal Force from carrying out further police duties, undertakings, operations or any other activities of a police or security nature in Solomon Islands;

(9) Against the Second to the Eighth Defendants, damages for trespass and false imprisonment, limited to $25,000.

(10) Against the Second to the Eighth Defendants an order for the immediate return to the Plaintiff of all documents, articles or any materials of whatsoever nature removed from the Plaintiff’s Skyline residence or from the offices of Bridge Lawyers Law Firm at Point Cruz Arcade at Tongs Buildings or, in the alternative, for said documents, items or materials to be handed to the custody of the Magistrate’s Court forthwith;

4. The short history of Solomon Islands in that period after what was generally described as a fair and successful election in December 2001 did not and could not lift the country out of the hands and control of individuals or criminal groups many of whom were still in possession of high powered rifles and continued to use them to force, threaten and intimidate civilians to get their way. The Treasury continued to be subjected to threats and intimidation from such groups and despite efforts by well meaning persons the cash flow situation could not be controlled. Instead of heading for the better after what may have been termed a successful election, the nation sank even further and further down on its knees. Basic services declined and the situation became intolerable. It became clear to everyone that the Solomon Islands Government could not save the nation or pull it out of the mess its very own sons and fathers had created. The Solomon Islands Government just did not have the capacity, power and force to do it short of an illegitimate force or strong man overtaking the reins of power in Government and turning things around by force. Vigilante groups were starting to emerge and a culture of "sharks" was becoming visible. Desperate business houses and people were recruiting ex-militant gangs and criminals to protect them from other criminals. It was a strange situation more aptly described, tragic and one we hope never again to be repeated.

On 13 June 2005, the second and third Defendants filed Summons inter alia, to have the Plaintiff’s Amended Statement of Claim struck out on the ground that it did not disclose any reasonable cause of action and an order that the action be dismissed and judgment entered in favour of the second to the eight Defendants. A similar Summons was filed on 17 June 2005 by the first Defendant adding that the Plaintiff had not obtained leave to bring his claim under Order 61A of the High Court (Civil Procedure) Rules, 1964 ("the Rules").

On 17 June 2005, the Plaintiff filed a Notice of Motion to have those two Summons dismissed on the ground that they were an abuse of the court’s process. This was heard by this court and judgement delivered on 3rd October 2005 dismissing the Notice of Motion of the Plaintiff, paving the way for hearing of the first, second to eight Defendants ("the Defendants") Summons.

In the interlocutory judgment delivered on 3rd October 2005 this court identified four crucial issues, which is conceded by all parties, as follows:

Paragraphs (2) – (10) of the relief sought are all dependent on the success or failure of the issues raised in paragraphs 1(a)-(d). If the Defendants succeed in their application, the relief sought in paragraphs (2)-(10) will consequentially fail."

7. 1. The first issue raised is does the Constitution provide that there shall be only one command and control ("c/c") of all policing activities/operations in Solomon Islands under the authority, superintendence and direction of the Commissioner of Police ("the Commissioner")?

7.2. The Plaintiff’s argument. Plaintiff premises his submission on the foundational principles of a constitutional democracy, where the Constitution is supreme as opposed to Parliamentary supremacy. Plaintiff, who is a lawyer himself submits that the Constitution must be interpreted according to democratic principles and concepts which

"permeate, ...invigorate and ...vibrate throughout the organs of governance created by and established under the Constitution. The concept which it describes forms the very heart-beat of Solomon Islands system of government. It assumes that the principles of democracy are to apply throughout the very operation and application of the Constitution itself. "

The Plaintiff referred to the Preamble as summarising the essence of a democratic state as a State in which "all power...belongs to its people and is exercised on their behalf by the legislature, the executive and the judiciary established by this Constitution." Plaintiff referred to the Court of Appeal Case in UDM and Another v. Governor General and Another[1] in which their Lordships when construing section 1[2] of the Constitution stated:

"In short, this is that it is neither necessary nor appropriate to travel outside our supreme law for the purpose of discovering hwat the framers of our Constitution had in mind when they used the words ‘democratic state’, and still less to invoke certain conventions which underlie British constitutional law. What s. 1 means is that our State is to be administered in accordance with the other provisions of the Constitution, which contains the essence of the democratic principles of governing us. These include the guarantee of human rights and fundamental freedoms, ..., the responsibility of the executive to Parliament.... It is indeed significant that any Parliament may, provided the proposed measure is approved by prescribed majorities including the requirement of a vote by the three-quarters of the members of the Assembly in the case of major changes, alter the Constitution and thus change the structure of our democracy without anyone being able to contend that this state has ceased to be a democratic state."

The Plaintiff points out that there are three crucial factors identified in the above statements of the Court of Appeal:

(i) In Solomon Islands the State is to be governed in accordance with democratic principles;

(ii) The executive is responsible to or accountable to Parliament, which is an elected body; and

(iii) The Constitution is sovereign, in that the power of Parliament to legislate is made subject to the Constitution: where major changes to the Constitution have to be enacted a prescribed majority required for passage in Parliament.

The Plaintiff submits the concept of accountability to the people underpins the very workings and operations of the organs and institutions of Government throughout. He looked at the electoral process which runs throughout the Legislature and the structures of Parliament. He then looked at the structures of the Executive comprising of collective responsibility through Cabinet to Parliament. He points out that the post of the Commissioner is a public office set up within the Executive branch – section 43(1) of the Constitution. He also looked at the appointment process[3] and submits that the following should be implied:

Plaintiff says that section 43(4) highlights the link between the Commissioner and the political leadership in the differentiation of functions between policy and administrative matters as opposed to matters of control and police operations. Plaintiff concludes his submissions on this point by saying that "...any agency, ...organisation or any body which is empowered to carry out the powers of the police force in this country shall be required to fall under the command of the Commissioner. There may be more than one police force in Solomon Islands but there can only be one Commander. Any laws enacted by Parliament that denies the Commissioner of this command system must be struck down as being unconstitutional and void."

The Defendants do not seem to take issue with this point. They premise their arguments more on the basis that there is no such contravention of any constitutional provision.

8. Whilst it would seem that the Defendants do not take issue with this point, since it is one of the main thrusts in the arguments of the Plaintiff I will rule on the point.

Section 43(1) of the Constitution establishes the Office of the Commissioner as a public office. A "public office" is an office of emolument in the public service[4] and "public service" means the service of the Crown in a civil capacity in respect of the government of Solomon Islands[5]. The principle of accountability to the people through the Executive branch is preserved in that appointment. Sub-section 43(2) describes the manner of appointment, that is on the advice of the Prime Minister (and one can safely assume after he has discussed with Cabinet) and consultation with the Police and Prisons Service Commission. I accept submissions of the Plaintiff that the manner of appointment reflects that principle of accountability.

"(3) The Police Force shall be under the command of the Commissioner of Police."

The Police Force is defined in section 144(1) of the Constitution as the Solomon Islands Police Force ("the Force"). In so far as the express provisions of the Constitution are concerned, the c/c of the Force is to be under the control of the Commissioner.

The Plaintiff contends that in the context of the PPF they have a different command structure apart from the Commissioner and therefore offends against the Constitution to that extent. He attacks the validity of The Facilitation Of International Assistance Act 2003 ("the Facilitation Act") from the premise that there can only be one commander of all policing activities/operations in the country and that section 19 of the Facilitation Act usurps that control from him, therefore it is unconstitutional.

The Defendants do not take strong issue with this submission, that the Constitution envisages that there be one Commander of police operations and activities in the country and rightly so. By necessary implication that conclusion is fairly evident.

Implications can be drawn from the Constitution based on the actual terms of the Constitution, or on its structure[6]. In the Australian Capital Television Pty Ltd v. The Commonwealth (ACTV) [1992] HCA 45; (1992) 177 CLR 106 at 135, Mason CJ said:

"It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation. However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure.

It is essential to keep steadily in mind the critical difference between an implication and an unexpressed assumption upon which the framers proceeded in drafting the Constitution. The former is a term or concept which inheres in the instrument and as such operates as part of the instrument, whereas an assumption stands outside the instrument."

In Victoria v. The Commonwealth[7] Windeyer J. had remarked that "implications have a place in the interpretation of the Constitution" and "our avowed task is simply the revealing or uncovering of implications that are already there." In Hinds and Others v. The Queen, Director of Public Prosecutions v. Jackson Attorney General of Jamaica (intervener) [1976] 1 All ER 353, 359, Lord Diplock also made relevant comments:

"A written constitution, like any other written instrument affecting legal rights or obligations, falls to be construed in the light of its subject-matter and of the surrounding circumstances with reference to which it was made.

...In seeking to apply to the interpretation of the Constitution of Jamaica what has been said in particular cases about other constitutions, care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular consideration and reasoning which depended on what, though not expressed, is nonetheless a necessary implication from the subject-matter and structure of the constitution and the circumstances in which it had been made."

It is important to appreciate that in normal circumstances, it was clearly envisaged under the Constitution and the Police Act that there should be one commander of police operations. This is made clear when the provisions of section 5 of the Police Act on the roles and functions of the Force in the country are considered:

"The Force shall be employed in and throughout Solomon Islands for the maintenance and enforcement of law and order, the preservation of the peace, the protection of life and property, the prevention and detection of crime and the apprehension of offenders, ...."

When that is read with section 8 of the Police Act and section 43(5) of the Constitution, it is clear that ultimately the power of control over policing activities and operations in the country was intended under the Constitution to be vested in one supreme commander, the Commissioner. Subsection 43(5) in particular makes clear that in respect of the use and operational control of the Force, the Commissioner is in charge. To that extent I accept submissions of the Plaintiff in so far as the Constitution envisages that there is one commander in the country over policing activities/operations.

It is important to note though that both the Police Act and the Constitution do recognise that there may be situations where the normal regimes, structures and systems envisaged may not apply or be relevant. For instance, in the event of a war, if "...Her Majesty is at war or it appears ...that a grave threat to the defence or internal security of Solomon Islands has arisen....", section 6 of the Police Act, empowers the Prime Minister in his discretion to direct that the Force or any part thereof may be deployed as a military force and to comply with the orders of any military authority that he may specify.

Further, Part VIII of the Police Act provides for arrangements where police officers from the police force of a neighbouring territory may enter the country for the purpose of assisting the Force in a temporary emergency. In such situation, the provisions of Section 57 would apply.

Similar arrangements are also envisaged in my respectful by our Constitution by having section 19(1)(g) included, in which the definition of a "disciplined force" includes "any other constabulary or police force established by Parliament", and subsection 19(4) which envisages arrangements made between the Solomon Islands Government and another Government or an international organisation whereby another disciplined force is in the country.

So in times of abnormality, arrangements which may not necessarily comply on all fours with Constitutional requirements must be considered and the Constitution given its widest construction which will achieve what the framers had purposed and designed it to attain. It is most unrealistic and unreasonable to expect the framers of the Constitution to envisage everything and every situation.

Again when dealing with such abnormal situations, the purposive principle in interpreting the Constitution must be applied. In the Reference by the Queen’s Representative (1985) LRC (Const) 6, the Court of Appeal of the Cook Islands refers to the "broad contextual approach" in the interpretation of constitutions.

"The words used [in a constitution] are necessarily general and their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning."

In AG for Ontario v. AG for Canada [1947] 1 All ER 137, at 145 the Privy Council in referring to the Canadian Constitution said that a "... flexible interpretation must be given that changing circumstances require."

In The Queen v. Beauregard, (1987) LRC (Const) 180 the Supreme Court of Canada, when referring to the Canadian Constitution made some very pertinent comments:

"The Canadian Constitution is not locked forever in a 119 – year old casket. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people."

"...interpreting a constitution or organic statute such as the [British North America Act 1867, the Canadian Constitution] that construction most beneficial to the widest possible amplitude of its powers must be adopted."

And so in interpreting the Constitution as it applies to the Facilitation Act and the Agreement between Solomon Islands and Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga of 24th May 2003 ("the Agreement") it is important to always bear in mind the background circumstances in which it was drawn up and to apply the most wide, reasonable and flexible interpretation.

The advancing principle[8], advocated by the Plaintiff which he says should be applied to the Constitution to advance and not impede the principles of democratic values and principles are equally pertinent to the case of the Defendants regarding how the Constitution ultimately must be interpreted. I do not need to remind the country that the Agreement and Facilitation Act were entered into at a most critical time in the history of this nation, when law and order was at its lowest and the country at the brink of collapse and anarchy. Constitutional obligations, powers, duties even fundamental rights of the People, the very people this Constitution exists for, could no longer be guaranteed by the Government of the day at that time and invoking those rights in the courts could offer no effective remedy; they were as good as the paper they were written on. Yes the Courts continued to function and orders were made but it was common knowledge in those times, there was no effective police and prison service to enforce them, apart from a joint illegitimate force which existed to maintain law and order in the city. So whilst recognising that the Constitution must be rigid and solid enough to sustain and preserve the status quo, structure and identity of the nation and provide certainty and predictability, it must also be flexible enough to permit not merely its continuity but its very survival. That was what was at stake at that time; the very survival of the nation and the Constitution under which set it was up. This too is the essential difference to the situation in Papua New Guinea when compared to Solomon Islands. Without the Agreement and the enactment of the Facilitation Act, no Regional Assistance Mission to Solomon Islands ("RAMSI") would have materialised, no intervention and the future of the nation at stake. No one can deny that that intervention was critical, that it was what was needed at that time and which turned this nation around! The Constitution must be interpreted in a manner that recognises the abnormality of the situation at the time and construed generously and flexibly enough to facilitate such intervention. This is what was meant by the Privy Council in Lennox Ricardo Boyce and Jeffrey Joseph v. The Queen (Barbados) [2004] UKPC 32 (7 July 2004) when referring to the Barbados Constitution as a "living instrument" when it dealt with the question of fundamental rights:

"Parts of the Constitution, and in particular the fundamental rights provisions of Chapter III, are expressed in general and abstract terms which invite the participation of the judiciary in giving them sufficient flesh to answer concrete questions. The framers of the Constitution would have been aware that they were invoking concepts of liberty such as free speech, fair trials and freedom from cruel punishments which went back to the Enlightenment and beyond. And they would have been aware that sometimes the practical expression of these concepts- ...had been different in the past and might again be different in the future. But whether they entertained these thoughts or not, the terms in which these provisions of the Constitution are expressed necessarily co-opts future generations of judges to the enterprise of giving life to the abstract constitutional text and the messy detail of their application to concrete problems. And the judges, in giving body and substance to fundamental rights, will naturally be guided by what are thought to be the requirements of a just society in their own time. In so doing, they are not performing a legislative function. They are not doing the work of repair by bringing an obsolete text up to date. On the contrary, they are applying the language of these provisions of the Constitution according to their true meaning. The text is a "living instrument" when the terms in which it is expressed, in their constitutional context, invite and require periodic re-examination of its application to contemporary life."

It is my humble task to "breathe" life into these constitutional texts and apply their messy details to the abnormal situation which it was confronted with at that time.

But even if some provisions of the Constitution may have been breached, this court must be wary of striking the whole Act (the Facilitation Act) down as unconstitutional for the greater and ultimate good of the nation and its people.

So I will now turn to the Facilitation Act itself and address the second part to the issue raised by the Plaintiff, whether the said Act usurps the c/c authority of the Commissioner.

9. The entry of the Visiting Contingent ("VC") comprises civilian administrators technical and support persons and the army and police component. Of relevance in this case is the police component, the Participating Police Force ("the PPF").

Following the request for international assistance by the Government of Solomon Islands and the signing of the Agreement on 24th May 2003, Parliament convened a special sitting to debate the Facilitation Act. It is important to appreciate that not only did it receive the blessing of the Executive it also received the unanimous support of the Parliament of Solomon Islands - the majority of the nation was right behind the Government throughout.

The Facilitation Act required publication of a Notice under section 3 by the Governor-General to facilitate the entry of the VC. That Notice was published in the Solomon Islands Gazette on 23rd July 2003 ("the Notice"). Whilst the Agreement and the Act received unanimous support and backing from start to finish, it is important to bear in mind that because Solomon Islands is a Constitutional democracy, it meant those arrangements must be shifted carefully through the Constitutional net, as the Constitution is supreme, not Parliament or the Executive Government, and the Courts have been given the ultimate responsibility of acting as the gatekeepers - the final arbiters of the interpretation/application of the Constitution.

The Facilitation Act is headed "An Act to make provisions for the requesting of international assistance for the restoration of law and order in Solomon Islands, and for matters connected therewith or incidental thereto." Section 3 provides that:

(2) The notice may specify an agreement or arrangement between the Government and the government of the assisting country that covers the operations and activities in Solomon Islands of the visiting contingent (the "assistance agreement").

(3) The provisions of this Act apply on the making of a notice under subsection (1)."

The validity of the Notice or the actions of the Governor-General is not being challenged. It is important to bear in mind that the Agreement, the Facilitation Act and the Notice were part and parcel of the same arrangements/transactions which facilitated the intervention. The authority of the Governor-General to sign the Notice came directly from section 3 of the Facilitation Act.

By virtue of section 3(2) of the Facilitation Act and clause 3 of the Notice the terms of the Agreement were made to apply to the operations and activities of the VC in Solomon Islands. Section 4(1) of the Facilitation Act defines the composition of the VC. Paragraph 4(1)(a) refers to the Police component, its police activities/operations in the country, (the PPF).

The PPF comprises police officers and associated personnel from the police forces of Australia, New Zealand, Fiji, Papua New Guinea, Samoa, Tonga and such other police forces from the region with the concurrence of the parties to the Agreement. It is interesting to note that this arrangement is very similar to the arrangements envisaged under section 57 of the Police Act, which refers to "police officers from the police force of a neighbouring territory" engaged to assist the Force in a temporary emergency.

Section 3(1)(a) refers to assistance being provided for a public purpose, which is defined in section 2 as follows:

"means the purposes of ensuring the security and safety of persons and property, maintaining supplies and services essential to the life of the community preventing and suppressing violence, intimidation and crime, maintaining law and order, supporting the administration of justice, supporting and developing Solomon Islands institutions and responding to natural catastrophic events;".

This definition and the part of the Preamble to the Agreement which refers to the provision of a package of strengthened assistance to Solomon Islands, including a policing operation to restore law and order, supported as required by armed peace-keepers and a program of assistance to strengthen the justice system and restore the economy and basic services, and Article 2 of the Agreement sets out the mission statement of the PPF.

Article 5.5 sets out the approach or manner in which that specific assistance is to be provided by the PPF:

"The Participating Police Force shall work co-operatively with the Government of Solomon Islands and its authorities, and consult with the Commissioner of the Solomon Islands Police Force, to achieve the purposes set out in Article 2."

That approach clearly is one of partnership and summed up in the words "helpem frend". These are concepts that are familiar and well recognized in international relations and assistance on a government to government basis and entirely consistent with concepts of sovereignty and accountability.

1. Plaintiff says that S.19 of the Facilitation Act is unequivocal about the c/c of the VC – they do not lie with the Commissioner. He says this section removes the power of command from the Commissioner and places the PPF outside the command structure of S. 43 (3). The Plaintiff relies on the Papua New Guinea case of the Special Reference by the Morobe Provincial Executive (2004) PNG SCR No. 2. That reference was made by the Morobe Provincial Executive to the Supreme Court of Papua New Guinea ("PNGSC") seeking the Court’s opinion on the interpretation or application of the Enhanced Co-operation between Papua New Guinea and Australia Act, 2004 (No. 8 of 2004)(ECP Act). Following discussions between the Executive Governments of Australia and Papua New Guinea on issues of assistance to Papua New Guinea ("PNG") in 2003, they entered into a Joint Agreement on Enhanced Cooperation between Papua New Guinea and Australia on 30th June 2004 ("the ECP Agreeement"). Following the signing of that agreement, the matter was tabled before Parliament and passed as the ECP Act. The ECP Agreement was adopted as part of the law in the Schedule to the Act.

A number of questions were put before the Supreme Court in the reference. Question 1 reads:

"Is Article 3.6 of the Schedule invalid in that it purports to exempt Assisting Australian Police Personnel from the jurisdiction of any Papua New Guinea court thereby depriving persons whose guaranteed rights or freedoms contained in Part III Division 3 of the Constitution are contravened by such personnel from seeking redress or remedy from such personnel in the National or Supreme Courts under section 21, 22, 34, 57 or 58 of the Constitution?"

When dealing with that question the PNGSC touched on the provisions of Article 3.4 of the ECP Agreement and found that not only was it inconsistent with Article 3.1 but it undermined the control of the Police Commissioner of Papua New Guinea ("PNG Commissioner") under section 198 of the Constitution with regard to police functions.

"Assisting Australian Police Personnel are subject to the orders of, and instructions from the head of the Assisting Australian Police. The head of the Assisting Australian Police shall report to the Commissioner of the Royal Papua New Guinea Constabulary. The head of the Assisting Australian Police shall be responsible to the Commissioner of the Australian Federal Police."

"This provision makes AAP Subject to the Head of AAP and he is responsible to the Commissioner of the Australian Federal Police. In so far as this Article relates to functions of the police, this will undermine the authority of RPNGC Commissioner as set out under Article 3.1 and is inconsistent with s. 197 of the Constitution. Article 3.4 is therefore inconsistent and invalid (see s 10, 11(2) of the Constitution)."

The PNGSC found that Article 3.4 was inconsistent with both sections 197 and 198 of the Papua New Guinea Constitution ("PNGC"). Those two sections read as follows:

There shall be, within the Police Force, an office of Commissioner of Police, who shall be responsible for the superintendence, efficient organisation and control of the Force in accordance with an Act of the Parliament."

We do not have a corresponding section in our Constitution in respect of section 197 however we do have a similar provision in our Police Act at section 5, which sets out the functions of the Force. In terms of powers of arrest, charge and prosecution, these are set out in Part III of our Criminal Procedure Code [cap. 7].

Plaintiff argues that section 198 of the PNGC is similar to section 43(3) of the Constitution which not only establishes the office of the Commissioner but reposes overall command and control in him. He argues that section 19 of the Facilitation Act being unequivocal about the command and control of the VC undermines the c/c of the Commissioner. Plaintiff also commented on the command and control structure of the VC under Article 5.1 of the Agreement whereby the most senior Australian Police Officer of the PPF is the head of the PPF with responsibility for its control and states that in exercising that control the head of the PPF shall consult with the head of the VC. The Plaintiff seems to be saying that such command structure undermines the authority of the Commissioner.

When dealing with the issue of control of the AAP the PNGSC distinguished two very important matters. (i)The performance of police functions, and (ii) matters of administration and discipline of the AAP deployed in PNG under the ECP Act. The PNGSC held that the PNG Commissioner has ultimate command and control of the Royal Papua New Guinea Constabulary ("RPNGC"). It held that in the performance of police functions on a day to day basis, Article 3.1 provides that the AAP "will comply with the lawful directions, organizational strategies and effective control of the RPNGC Commissioner of Police ...."

On the question of general administration and control over AAP, they are subject to the regular management of their immediate supervisor, and under Article 3.3 the most senior member of AAP has the overall responsibility. The Court distinguished that control as relating to personnel matters rather than police powers to lay, prosecute or withdraw charges (Article 3.1).

The Court then went on to distinguish powers of control in relation to discipline and personnel matters over the AAP in the light of section 198 of the PNGC. The Court found that Article 3.6, which corresponds to Article 5.7 of the Agreement, and which requires that where a matter of administration or discipline occurs in respect of the AAP, they would not be subject to the discipline of RPNGC or to the jurisdiction of any Papua New Guinea disciplinary authority, court or tribunal, not to be inconsistent with section 198 of the PNGC. The PNGSC noted the existence of two different disciplined forces and accepted that on matters of general administration and discipline, the AAP will be dealt with in accordance with the law in Australia. That they are subject to the laws, procedures and standards of conduct applicable in Australia and may be disciplined in accordance with those laws (Article 3.5).

On the question of control by the PNG Commissioner, of police functions, superintendence, efficient organization and control of the Force, and in relation to Article 3.1, to lay, prosecute or withdraw charges, the PNGSC found that the AAP are subject to the orders and instructions of the PNG Commissioner. To the extent therefore that Article 3.4 undermined the control of the PNG Commissioner, it was inconsistent to S. 198 of the Constitution and to the extent it undermined police functions to lay, prosecute and withdraw charges it was inconsistent with section 197 of the PNGC.

"While respecting the laws of Solomon Islands, the visiting contingent shall have sole responsibility for the internal command, control, discipline and administration of the personnel of the visiting contingent."

In determining the question whether this section removes the power of c/c from the Commissioner, it is important to consider the meaning of this section in the context of the Act. It is important also to distinguish between administration and discipline matters as opposed to police functions. Does this include the police powers of the PPF? Does it refer to the use and operational control of the PPF?

Section 19 in my respectful view is a general provision. It refers to the VC as having sole responsibility for the "internal command, control, discipline and administration of the personnel of the visiting contingent". The key word which defines what that command and control constitutes of is the word internal. It refers to the command and control within the structure and bearing in mind the composition of the VC, it is essential there is a head and someone to take responsibility for the group. Section 4 defines the composition of the VC and Article 4.1 in turn specifies who the head of the VC should be.

"The head of the Visiting Contingent shall be a person nominated by the Government of Australia, in consultation with the Government of Solomon Islands. The head of the Visiting Contingent shall have responsibility, subject to any arrangements between Assisting Countries, for leading and managing the Visiting Contingent, and for related liaising with the Government of Solomon Islands and Assisting Countries."

It is common knowledge that the head of the VC is styled "The Special Coordinator" and currently held by Mr. James Batley. It will be clear from this provision that the command and control envisaged is one of administration, management, organisation and discipline.

Article 4.2 is the same section 19 in the Facilitation Act. It is consistent with such interpretation that Article 4.2 should be located within that Article headed "Command and Control of the Visiting Contingent".

Article 4.3 provides for the situation where a member of the VC may be requested to be withdrawn by the head of the VC and is consistent with the overall structure that it deals with internal issues affecting members of the VC.

Where the Plaintiff concedes that other disciplinary forces may exist in the country by Parliamentary legislation it is only logical and reasonable to expect that they are able to exercise control, command, discipline and management of their own personnel.

I do not find that section 19 undermines the c/c of the Commissioner as it does not relate to the exercise of police powers, functions and operational control, it being confined to internal issues affecting the command, control, administration and discipline of the VC and thereby members of the PPF. Members of the PPF are part of the VC. Article 5.1 simply reiterates that line of responsibility by providing that the Head of the PPF shall consult with the head of the VC in terms of control of the PPF. Bearing in mind that the head of the VC is not necessarily someone with a police background, knowledge or qualification, more likely someone with administration or managerial skills and expertise, that would be more consistent with the construction of section 19 as being confined to matters of internal administration, management and discipline rather than police functions, which is a matter entirely for the head of the PPF and the Commissioner to determine. The wordings of Article 3.4 of the ECP Agreement must be distinguished from the wordings used in section 19 of the Facilitation Act in that Article 3.4 is quite specific in terms of orders and instructions, responsibility and accountability in terms of police matters.

Article 5 of the Agreement describes in detail the status of the PPF. Article 5.1 identifies who the head of the PPF is in the country.

"The most senior Australian Police Officer of the Participating Police Force, shall be the head of the Participating Police Force, with responsibility for control of that Force. In exercising that control, the head of the Participating Police Force shall consult with the head of the Visiting Contingent."

That wording is similar to Article 3.3 of the ECP Agreement which gives the most senior member of the AAP the responsibility for the administration and control of the AAP. The PNGSC found that such clause is not inconsistent with the command and control of the PNG Commissioner. I too do not find that that clause offends against the overall c/c of the Commissioner. It is a clause that is consistent with the existence of a different disciplinary force that must have its own internal line of authority, control and discipline over administration and other related matters.

Article 5.2 is important to the Defendants’ case because it provides that the head of the PPF shall be appointed a Deputy Commissioner of the Solomon Islands Police Force ("the Force") – holding a line position. It also provides that other members of the PPF may be appointed to the Force (this is also reflected in section 8(1) of the Facilitation Act). By having the head of the PPF appointed as a Deputy Commissioner, it in my respectful view destroys any arguments about effective c/c of the PPF by the Commissioner as it relates to police operational matters and functions. Any arguments about the powers of command being undermined cannot be sustained. By holding a line position in the Force the head of the PPF comes directly under the command, superintendence and direction of the Commissioner. The same applies to any member of the PPF appointed to a line position in the Force.

How the Commissioner seeks to exercise that c/c authority is a matter within his sole discretion to decide. The Agreement and the Facilitation Act provides him with some guidelines as to how he does that. For instance, Article 5.4(a) provides:

"Members of the Participating Police Force are subject only to the orders of, and instructions from:

When exercising control over members of the PPF it only stands to reason that consultation is done with the head of the PPF – Deputy Commissioner of Police. I fail to find any conflict or contravention in the power of c/c of the Commissioner of Police as envisaged in those arrangements. As there are two police forces, which is not contested, it is only proper that members of the PPF (who consist of numerous police officers from the participating countries) have a clear line of command and control in terms of general administration and discipline. In their operational control and activities that also comes from the head of the PPF, who in turn comes under the direct c/c of the Commissioner. The overall c/c of the Commissioner therefore is not usurped, compromised, diminished or reduced. Through Article 5.2, that c/c authority is retained.

This command control approach is not new or unusual as it already exists under the Police Act in Part VIII headed "RECIPROCAL PROVISIONS AS TO SERVICES IN NEIGHBOURING TERRITORIES". Section 57(a) of that Act provides as follows:

"Whenever any police officers from the police force of a neighbouring territory are present in Solomon Islands in response to an application made by the Prime Minister for the purpose of assisting the Force in a temporary emergency, the following provisions shall have effect with regard to such officers:—

(a) they shall be under the orders of their own officers present with them (if any), subject, however, to the command of the Commissioner;"

So whilst the c/c of the neighbouring police force (comparative to the PPF) by their officers or head is retained, it is made subject to the command of the Commissioner, and despite being deemed to be members of the Force under section 57(b) of the Police Act. The only difference with the terms of the Facilitation Act and the Agreement is that the overall command is exercised via the appointment of the head of the PPF as the Deputy Commissioner of Police.

But even if it may be argued that the ultimate c/c of the Commissioner may have been undermined, usurped or compromised, the very same argument relied on by the Plaintiff in relation to the concept of accountability to the people which underpins the workings and operations of the office of the Commissioner and consistent with the idea of a democratic state, is preserved throughout by the Facilitation Act. I do not find those fundamental principles and concepts undermined or compromised in this legislation. What Parliament takes away it can replace by another legislation and still preserve the ultimate structure and harmony in the principles and concepts of democratic government and sovereignty.

This legislation is unique because it is double pronged. Not only does it seek to preserve the ultimate c/c of the Commissioner through its structure as envisaged in Articles 5.2, 5.4 and 5.8, but there is direct accountability provided in the Agreement itself under Article 3.3 which provides as follows:

"The Government of Solomon Islands may at any time in writing request withdrawal of the Visiting Contingent from the Area of Operations. On receipt of such written notice, the Visiting Contingent shall withdraw prior to the expiration of 3 months from the date of receipt of that notice."

Section 23 of the Facilitation Act provides annual reviews of the operations of the VC. In that instance, the Notice must be placed before Parliament within 3 months of the 24th day of July of each year. If Parliament passes a resolution within 3 months after the review date, the notice ceases to have effect 21 days thereafter and RAMSI officially withdraws.

At this point of time, the clear message being sent out is that the people through their elected representatives want RAMSI to stay. So there is an even more direct line of accountability by the PPF to the people through Parliament. I simply cannot see how this court can even consider striking out this legislation as unconstitutional when on the very face and the tenor of the Act the fundamental constitutional and democratic principles of accountability are preserved throughout.

13. Does Article 5.2 usurp the power of the Police and Prisons Service Commission?

The second issue which arises from Article 5.2 is whether it usurps the power of the Police and Prisons Service Commission ("PPSC") under section 120(1) of the Constitution to make appointments to the Force.

"120.—(1) Save as provided in section 43(2) of this Constitution, power to make appointments (including power to confirm appointments) to offices in the Police Force of or above the rank of Inspector is vested in the Police and Prisons Service Commission."

"(4) In the exercise of their functions under this Constitution, no such Commission shall be subject to the direction or control of any other person or authority, except where otherwise provided by this Constitution."

1. When considered in the light of their literal and ordinary meaning, it is clear what these Constitutional provisions were intended to achieve. They were to safeguard the independence of the PPSC to appoint suitable, qualified officers based on merit to the post of the Deputy Commissioner of Police. No one takes issue with this power and the reason for its independence. In periods of normalcy it all makes good sense. It is important to bear in mind though that the time in which the Facilitation Act was enacted were not normal. Of critical concern at that time was the fact that the Force was tainted and corrupted. Whilst there were good officers around, the presence of guns and rogue police officers right through the ranks and file of the Force made it extremely difficult and problematic for the Commissioner in charge of the Force to maintain effective c/c of his officers.

It is important to bear this in mind in the construction of such Constitutional provisions, and when considering whether to apply the advancing principle[9] or the purposive principle, advocated by the Plaintiff in his submissions and the extent to which such principles of interpretation should be applied.

When read, viewed and considered in that light, the most liberal, wide and accommodating interpretation must be applied to such Constitutional provisions to ensure that Article 5.2 is not struck down simply because the independent power of appointment of the PPSC is being interfered with to facilitate and achieve a specific purpose and which was absolutely necessary for the survival and continuity of the very institutions set up under the Constitution.

2. In the interpretation of sections 120(1) and 137(4) of the Constitution and Article 5.2, it is important too that they be construed so as to maintain the harmony and unity in the Constitution in so far as they relate to the overall c/c of the Commissioner under section 43(3) and to ensure that it is preserved. On one hand if the literal and legalistic interpretation of sections 120 and 137(4) would result in finding that Article 5.2 offends those Constitutional provisions and on the other hand, a purposive and generous interpretation would preserve the unity of the intervention and thereby meet the nation’s needs, then this court is obliged to apply such liberal, wide and generous interpretation.

3. Further, it is important to bear in mind that section 37 of the Constitution provides that the Governor-General acting in accordance with the advice of the Prime Minister (and thereby through Cabinet) may assign to a Minister responsibility for the conduct including administration of any department of the Government. Subsection 43(5) of the Constitution in turn provides that insofar as the organisation, maintenance and administration of the Force is concerned, the Minister responsible is not precluded from exercising control and direction over the Police Force. I quote:

"Nothing in this section shall be construed as precluding the assignment to a Minister of responsibility under section 37 of this Constitution for the organisation, maintenance and administration of the Police Force, but the Commissioner of Police shall be responsible for determining the use and controlling the operations of the Force and, except as provided in the preceding subsection, the Commissioner shall not, in the exercise of his responsibilities and powers with respect to the use and operational control of the Force, be subject to the direction or control of any person or authority." (emphasis added)

The Executive Government therefore under the Constitution, is entitled to determine how the Force is to be organised or administered and if it decides to have a post of the Deputy Commissioner of Police to be held by the head of the PPF, then they are perfectly entitled to do so. It is important to note the distinction between the creation of a Deputy Commissioner of Police post, which is an administrative matter/function and falls within the jurisdiction of the Executive Government through the responsible Minister, as opposed to powers of appointment. If the Executive decides to create two or three Deputy Commissioners of Police post for the efficient organisation and more effective management of the Force, they are perfectly entitled to do so and to impose that direction through legislation. To that extent I find no conflict or contravention of sections 120(1) or 137(4) of the Constitution.

4. In so far as police powers of the PPF are concerned that is expressly provided for under section 7 of the Facilitation Act. Section 8 makes clear that the exercise of those powers are not dependent on being appointed to any office in the Force. To that extent as a different disciplined force serving in this country there is no requirement that they must be appointed to the office of the Force by the PPSC and that a failure to do so amounts to an infringement of those Constitutional provisions. This would explain the reason why the Facilitation Act provides that section 11 of the Police Act shall not apply to its officers.

Even section 57(b) of the Police Act recognizes that such requirement is not necessary by simply applying a deeming provision whereby such officers are deemed to be members of the Force and would not have to be required to be appointed in the normal way: "...they shall have and may exercise the powers, and shall be liable to perform the duties, of police officers of equivalent rank in the Force, and shall for those purposes be deemed to be members of the Force."

In paragraph 13.1 of his submissions the Plaintiff also submits that section 19 of the Facilitation Act is unconstitutional in that it leaves discipline to the VC when that is a matter vested in the PPSC under section 121 of the Constitution. While he concedes that in matters of pure administration section 19 does not offend section 121, he contends that in terms of disciplinary matters those are the preserve of the PPSC.

Section 19 reflects Article 4.2 of the Agreement. When it comes to matters of discipline, Article 5.7 of the Agreement is more specific:

"The Participating Police Force shall not be subject to any regulations concerning the administration or discipline of the Solomon Islands Police Force, or to the jurisdiction of any Solomon Islands disciplinary authority, court or tribunal."

Article 5.7 couldn’t be any clearer regarding matters of discipline or administration. Article 5.7 is similar to Article 3.6 of the ECP Agreement, that in matters of administration or discipline, the AAP are not subject to "regulations concerning the administration or discipline of the Royal Papua New Guinea Constabulary, or to the jurisdiction of any Papua New Guinea disciplinary authority, court or tribunal." When dealing with that issue, in the Morobe Reference[10], the PNGSC noted the distinction between matters of general administration and discipline as opposed to police functions, even in the context of their Constitution which expressly provided for only one police force in Papua New Guinea. The PNGSC held as follows:

"The relevant Act under consideration is the ECP Act. The Act seeks to treat AAP differently. This is understandable as AAP are members of the Australian Federal Police who are given police powers and functions. ...So far as administration and discipline is concerned, they are subject to the applicable laws in Australia. This is not inconsistent with s. 198 of the Constitution."

Section 198 of the Papua New Guinea Constitution is similar to our section 43(3). Section 19 expressly talks about the "internal command, control, discipline and administration of the personnel" of the VC. In terms of disciplinary matters, members of the PPF are subject to the disciplinary law of the VC. In contrast the provisions of section 121 on the other hand relate to disciplinary matters of members of the Force.

Once it is conceded by the Plaintiff that other disciplinary forces may be established by Parliament[11] or may be present in the country pursuant to any Government to Government arrangements[12], it is only both reasonable and logical that they should be entitled/allowed to retain command and control over administrative and disciplinary matters; bearing in mind these are officers from various police forces from the regional participating countries through RAMSI.

Again this sort of arrangements where matters of discipline are left to the disciplined force itself to administer are recognised in the Police Act. Section 57(c) of the Police Act provides for the application of other disciplinary law in the context of a neighbouring force in Solomon Islands and giving it effect as part of the general law of Solomon Islands, providing that such disciplinary law is not interpreted as conferring any power on any officer of the Force to punish such officer of the neighbouring force for any offence against discipline.

The effect of this proviso leaves open the question of discipline to the neighbouring force to exercise as against its own officer. This is reiterated in paragraph (ii) of the same Proviso where jurisdiction is conferred to courts in this country exercising comparable jurisdiction which may be invoked. The tenor of the language used is permissive rather than mandatory and consistent with the view that matters of discipline applying to officers of such neighbouring force may be exercised by their own disciplinary authority. Section 57 of the Police Act therefore supports the construction of section 19 of the Facilitation Act and Article 5.7 as validly confining disciplinary matters to the VC and as not offending section 121 of the Constitution. Also section 19(4) of the Constitution indirectly recognises the existence of such disciplinary laws and their application to such disciplined force.

Plaintiff claims that section 17(1) of the Facilitation Act which gives immunity to members of the VC is unconstitutional on the grounds that:

Learned Counsel argues that there are no caveats placed on the immunity granted under that section. There is no "good faith" or "gross negligence" requirements. He says as long as a member of the visiting contingent claims to be on official duties he is completely immune from legal proceedings.

"(1) Members of the visiting contingent, the assisting country, and any other country whose personnel are members of the visiting contingent, shall have immunity from legal proceedings in Solomon Islands courts and tribunals in relation to actions of the visiting contingent or its members that are taken in the course of, or are incidental to, official duties.

(2) Criminal and disciplinary jurisdiction shall not be exercised over a member of the visiting contingent arising out of an action taking place in Solomon Islands if such jurisdiction is asserted over that member in respect of that action by a country referred to in section 3(1)(b).

(3) Where criminal and disciplinary jurisdiction has been exercised over a member of the visiting contingent arising out an action taking place in Solomon Islands, that jurisdiction will be relinquished to a country referred to in section 3(1)(b) if that country asserts jurisdiction over that member in respect of that action.

(4) In this section, "legal proceedings" include criminal, civil, disciplinary and administrative proceedings, and proceedings seeking to enforce customary law."

Respectfully such interpretation given to section 17(1)-(4) is over simplistic. It is not correct to say that the section is unfettered. There are limits which are confined to "actions...taken in the course of, or are incidental to, official duties". Anything that is not taken in the course of or incidental to official duties falls outside the purview of the immunity granted under subsection 17(1).

It is also not necessary to have a "good faith" or "gross negligence" phrase inserted in such legislation. The powers of PPF officers essentially relate to the exercise of police powers. This is set out in Article 5.8 which confers on them the same powers authorities and privileges which may be exercised by members of the Force, irrespective of whether that member has been appointed pursuant to the Force or not. On top of that, section 2 defines in broad terms the role they play in the country.

I have looked at the Police Act (cap. 110) to see if there is any similar "good faith" or "gross negligence" clause but there is none. The only saving provided for in the Constitution is under section 19(3) for members of the disciplined force of Solomon Islands, which would include police and prison service officers, which provides that "...nothing contained in or done under the authority of the disciplinary law of that force (eg. police force or Prison Service) shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter (Chapter II – Protection of Fundamental Rights and Freedoms of the Individual) other than sections 4, 6, 7, 8 and 15." [words in brackets added]. For the Force, anything done under the authority of the Police Act or other relevant legislation will afford a defence to their actions, provided they do not conflict with sections 4, 6, 7, 8 and 15 of the Constitution. In the case of members of the VC, the limits are actions taken in the course of, or are incidental to, official duties.

3. The third flaw in Plaintiff’s submissions is in assuming that there is interference with citizen’s fundamental rights without recourse to the courts. There is no basis to such argument as the decision whether the actions of members of the VC are "taken in the course of, or are incidental to, official duties" is essentially a matter for the court at the end of the day to determine and their jurisdiction preserved. If there is dispute on the question whether such immunity exists, that will be a matter for the courts of this country to determine. It is over simplistic to assert "As long as a member of the visiting contingent claims to be on official duties he is completely immune from legal proceedings." Once it is determined that the actions of a member of the PPF for instance falls outside official duties, the veil of immunity is pierced and such officer becomes liable to be prosecuted in the courts of this country. But even if any such actions may be determined as acts performed in the course of or incidental to official duties that does not automatically remove the rights of citizens to pursue redress in these courts where it is alleged their fundamental rights have been breached subject of-course to other Constitutional provisions which may further impinge on whether redress may be sought or available; I have in mind the provisions of section 19(4) of the Constitution, which provides that "...nothing contained in or done under the authority of the disciplinary law of that force (eg. the PPF and the provisions of the Agreement and the Facilitation Act) shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter". Even in this context, the authority/ jurisdiction of the courts is preserved! For instance, the extant of the disciplinary law applicable to the facts or circumstances of the case will have to be determined; whether it is permitted/sanctioned under such disciplinary law and if not then the veil of protection afforded even under section 19(4) will not protect any such member of the disciplinary force.

4. Section 24(1) of the Facilitation Act completely dispels any suggestions/doubts that section 17(1) imposes a full and unfettered immunity to members of the VC and removes or interferes with citizen’s rights under the Constitution to run to the courts for redress. It expressly subjects the Facilitation Act to the Constitution. I quote:

"Subject to the Constitution, this Act and any regulations or other subsidiary legislation made under this Act shall have effect notwithstanding any other law of Solomon Islands."

The supremacy and authority of the Constitution and the jurisdiction of the courts to determine the ambit of the immunity as well as breaches of any Constitutional rights are preserved throughout.

5. The power to grant immunity to groups or certain persons from legal proceedings by Parliament is not unique to this legislation. Other Acts of Parliament provide similar immunity. For example, section 249 of the Customs and Excise Act [cap. 121] provides that "...no legal proceeding or claim shall lie against the Comptroller or any officer for any act done in good faith and without gross negligence in the exercise or performance of any power given or duty laid upon him by or under this Act." The only distinction or difference lies in the requirements to be fulfilled. In the context of Custom’s officers any acts done in "good faith and without gross negligence" are protected.

Reference was made by learned Counsels for the Defendants in this case to the Immunities and privileges provided under the Diplomatic Privileges and Immunities Act ("DPI Act") [cap. 67] as an illustration of legislation which does provide immunity provisions. Apart from the fact that the provisions of that Act are yet to be tested against the Constitutional provisions of this country, it is important to bear in mind the historical, legal and judicial basis for such legislation. In a Tongan case, Tu’itavake v. Porter, Government of Australia and Attorney General Supreme Court of Tonga, CC 24/1989, 2 November 1989 per Webster J., the Plaintiff sought to challenge the validity of the Diplomatic Relations Act 1971, which provided immunity from legal proceedings of a diplomatic agent, the first Defendant in that case as contrary to Clause 4 of the Tonga Constitution which in essence stated that there should be one law in Tonga for all, whether chiefs, commoners or non-Tongans and Tongans. By virtue of his diplomatic status the first Defendant declined to accept service of the writ on him. The Supreme Court dismissed the application of the Plaintiff and held inter alia that the Constitution was to be interpreted flexibly and generously having regard to the purposes of the Constitution. The Court traced the historical basis of diplomatic privileges and declined to find that the legislation contravened Clause 4 of the Constitution.

It is important to note that whilst the DPI Act does provide immunity from criminal jurisdiction of the receiving state unless they submit to it, it does not rule out legal liability. All it does is to exempt from suit. Article 31(1)(a)-(c) of the Vienna Convention on Diplomatic Relations for instance provides exceptions where that immunity may not apply:

"1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions."

So whilst a diplomatic agent may not be sued for a criminal offence under the said Act, in terms of private property of actions falling outside official functions, he may be sued in the courts in this country. The context in which the Facilitation Act was enacted is important to bear in mind when interpreting its provisions as it applies to the Constitution. Respectfully I do not find that section 17(1) contravenes the Constitution as alleged by the Plaintiff.

The Plaintiff alleges that section 17(5) of the Facilitation Act interferes with the independent power of the Minister and Director of Public Prosecutions ("the DPP") to undertake or discontinue prosecutorial actions as provided for under section 91 of the Constitution. Plaintiff says that the said section leaves no option to the Minister and the DPP in how they will assess any impending scenarios of national defence, security or international relations of Solomon Islands. He alleges that Parliament has dictated to them and gives rise to altering the requirements of section 91(7) of the Constitution. He says that their powers and responsibilities must be exercised based on their deliberate judgements not on the dictates of Parliament. The only way this can be done is to comply with the majority requirements of section 61 of the Constitution and effect a Constitutional amendment.

1. Plaintiff assumes that the independent powers of the Minister and DPP have been interfered with. Unfortunately that is not so. Subsection 17(5) is to be read with subsections 17(1) and (2). I quote:

"For this section, the Minister responsible for justice shall be deemed to have directed the Director of Public Prosecutions that he is to initiate no action with respect to members of the visiting contingent for actions referred to in subsections (1) and (2), unless the assisting country has expressly consented to the exercise of such jurisdiction."

This court’s reasons in the arguments on immunity equally apply to the question of the DPP’s powers. The DPP’s power to initiate criminal proceedings is not hampered in respect of actions not done in the course of or are incidental to, official duties. For criminal activities committed outside the scope of their official duties, I do not see how it can be claimed that they are not subject to normal criminal processes in the country as envisaged by the Constitution and the laws of the country. Section 24 of the Facilitation Act makes it patently clear that the Act is subject to the Constitution.

2. The Proviso in subsection 91(7) of the Constitution is entirely consistent with the notion that the Executive retains overall control over matters of defence, security and international relations. It reflects on ministerial and collective responsibility through Cabinet and in turn accountability to Parliament. When viewed in that light, I find nothing offensive in the way and manner subsection 17(5) has been enacted. The backdrop in which the Facilitation Act was enacted is entirely consistent with the notions contained in section 91(7) of the Constitution.

3. Plaintiff assumes that the Minister and DPP are no longer independent because subsection 17(5) imposes a direction on what is to be done. It is not contested that the direction removes or limits the discretion of the Minister and the DPP. To take it further and say that it trenches on their independence cannot be right. The powers of the Minister and DPP are independently exercised if they are not subject to the control, influence direction of any outside body or authority in the exercise of their discretion as it relates to any particular matter. The question whether the DPP will exercise his discretion to prosecute a member of the PPF for any criminal action that does not fall within what is termed as official duties is retained.

At paragraph 17.3 of his submissions Plaintiff further asserts that the degree of immunity provided for by section 17(1)-(5) of the Facilitation Act is that it threatens citizens’ rights under Part II of the Constitution, in particular sections 9 and 10. He says that even if members of the PPF contravene citizens’ rights, no legal proceedings will ensue.

I have already pointed out that the jurisdiction of the courts in this country are not removed and that legal proceedings may issue against such members of the PPF for actions alleging breaches of the Constitutional rights of citizens in this country. I take judicial notice of the fact that such actions have already been commenced in this court and dealt with. Secondly, section 24 expressly subjects the provisions of the Facilitation Act to the Constitution and so it cannot be said that no citizen has right of recourse to the courts for alleged breaches of fundamental rights under section 9 or 10 of the Constitution.

It is important always to bear in mind the purposes and objects for which the Facilitation Act was enacted in interpreting its provisions. The heading of the Agreement describes it as an agreement "...concerning the operations and status of the police and armed forces and other personnel deployed to Solomon Islands to assist in the restoration of law and order and security."

"Noting the deteriorating law and order and security in Solomon Islands poses a threat to good governance and economic prosperity of Solomon Islands;

Noting further the requests for assistance in restoring law and order and security dated 4 July 2003 from the Governor-General of Solomon Islands acting on the advice of the Cabinet of Solomon Islands"

"...the provision of a package of strengthened assistance to Solomon Islands, including a policing operation to restore law and order, supported as required by armed peace keepers, and a program of assistance to strengthen the justice system and restore the economy and basic services;

Acknowledging the need to assist the effective functioning of government, the restoration of confidence in law and order, and the economic recovery of Solomon Islands; ...."

The Facilitation Act was the product of that Agreement and encapsulates in section 2 the mission statement of the VC in the definition of the word "public purpose", of "...ensuring the security and safety of persons and property, maintaining supplies and services essential to the life of the community preventing and suppressing violence, intimidation and crime, maintaining law and order, supporting the administration of justice, supporting and developing Solomon Islands institutions and responding to natural catastrophic events".

It is important to appreciate that their coming here is not a picnic. They have left the safety and security of their home countries to help a fledging neighbouring nation get back on track. One has paid the ultimate price, late Adam Dunning, shot in the back by his killers. Whilst he never had the chance to explain what he was here for, his killers will have their day in court. That is justice at its highest and best and might I add made possible through the intervention by the very force whose entry is now being challenged.

The underlying current in their presence in this country is not only the need to uphold and enforce the laws of Solomon Islands but to assist the Force restore law and order in the country. The concepts of working together in partnership with the Force as preserved in the Facilitation Act and Agreement signed between our Government and the various Governments of the participating countries must be re-emphasised and accentuated. Whilst there are differences or distinctions in the discharge of their duties, for example they are allowed to carry weapons – members of the Force are not allowed to carry them and they are allowed to wear their own uniforms from their countries, the rules of engagement remain essentially the same. They have to act and behave in a disciplined and professional manner. The expectations placed on them are as high as the expectation on the Force members, in fact higher, because part of their role in this country would be to lead by example, to demonstrate professional standards which would assist to raise and restore discipline, confidence and trust within the Force and by the Public. One day, the assistance will be withdrawn and the Force must take full responsibility and control again for "...the maintenance and enforcement of law and order, the preservation of the peace, the protection of life and property, the prevention and detection of crime and the apprehension of offenders, ...." (section 5 of the Police Act).

1. Whether the Facilitation Act is unconstitutional and void on the grounds that it establishes or provides for the operation in Solomon Islands of a police force independent of and operating outside the full command and control of the Commissioner as required by section 43(3) of the Constitution?

2. Whether the Facilitation Act is unconstitutional and void on the grounds that it establishes or provides for the operation in Solomon Islands of a police force whose members are not appointed by the Police and Prisons Service Commission or by the Commissioner as required by section 120(1) and (2) of the Constitution?

3. Whether the Facilitation Act is unconstitutional and void on the grounds that it provides for immunity from legal proceedings of members of the Illegal Force?

4. Whether the Facilitation Act is unconstitutional and void on the grounds that it directs the Director of Public Prosecution not to initiate any action against members of the Illegal Force for criminal actions committed in Solomon Islands?

To the extent that the orders sought in paragraphs (2) – (10) of the relief sought are all dependent on the success or failure of the issues raised in questions 1-4 above and to the extent that those questions have been answered in the negative by this court, the relief sought in those orders must also be denied.

Accordingly the Plaintiff’s Amended Statement of Claim must be struck out as having disclosed no reasonable cause of action and judgment entered in favour of the first and second to the eight Defendants. The Defendants are entitled to have their costs in this action and I so order.

^[1] CASI-CAC 3-97
^[2] section 1(1) reads: “Solomon Islands shall be a sovereign democratic State.”
^[3] Section 43(2) of the Constitution
^[4] s. 144(1) Constitution
^[5] (ibid)
^[6] McGinty and Others v. The State of Western Australia [1995-1996] 186 CLR 140
^[7] (“the Payroll Tax Case”) [1971] HCA 16; (1971) 122 CLR 353, at pp. 401-402
^[8] See the case of Speaker of the National Parliament v. Danny Philip CASI-CAC No. 5 of 1990 and Billy Hilly v. The Governor-General CASI-CAC 299 of 1994 where that principle was referred to with approval.
^[9] See the case of Speaker of the National Parliament v. Danny Philip CASI-CAC No. 5 of 1990 and Billy Hilly v. The Governor-General CASI-CAC 299 of 1994 where that principle was referred to with approval.
^[10] Special Reference by the Morobe Provincial Executive, Papua New Guinea Supreme Court, SCR No. 2 of 2004 13^th May 2005
^[11] section 19(1)(g) of the Constitution.
^[12] S. 19(4) of the Constitution

High Court of Solomon Islands

Nori v Attorney General [2006] SBHC 134; HCSI CC 172 of 2005 (4 April 2006)