Govenor General v Public Service Commission [2007] SBHC 114; HCSI CC 263 of 2007 (26 September 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 263 of 2007

THE GOVERNOR-GENERAL

-v-

PUBLIC SERVICE COMMISSION,
JUDICIAL AND LEGAL SERVICE COMMISSION,
POLICE AND PRISON SERVICE COMMISSION

Date of Hearing: 10 September 2007
Date of Ruling: 26 September 2007.

The Attorney General for the Plaintiff
A. Radclyffe for 1st & 3rd Defendant
G. Brown for 2nd Defendant

RULING on application to strike out originating summons of the plaintiff seeking declarations pursuant to Order 58, r. 1 of the High Court Rules.

Brown, J:

1. The 1st and 3rd defendants, represented by Mr. Radclyffe of counsel, seek to strike out the originating summons on the basis that it discloses no reasonable cause of action or because it is frivolous and vexatious for that the plaintiff has no locus standi to seek the relief claimed. The phraseology has particular meaning when used in this context. Frivolous may be said be mean "futile" and not "trifling", while the other phrases have over time, in practice, meaning according to the gloss afforded by court precedent. What is clear however, is the discretion in the court under the rule relied upon, to strike out in appropriate cases. The discretion need be exercised with proper regard to precedent.

2. The originating summons asks the court to answer particular questions and consequent upon the court’s answers, make declarations. Whether or not the plaintiff and all three defendants, by virtue of their constitutional nature, role, powers and functions, are constituent organs of "the Government" and accordingly obliged to source and rely upon legal advice from the Attorney General in his constitutional capacity as "the principal legal adviser to the Government" and accordingly entitled to legal representation in all contentious matters by the Attorney General, are the questions which the court is asked to answer..

3. The Attorney points to this claim to strike as having been brought pursuant to O. 27 r4 of the High Court (Civil Procedure) Rules 1964 ("Rules") and not under the court’s inherent jurisdiction. On that basis, he argues, it is impermissible to refer to any affidavit material in adjudicating whether the Originating Summons does or does not disclose a "reasonable cause of action". In other words, the court is only concerned with the summons itself, and not with any factual material which may have been filed in support of the summons. For this argument he relied upon the carefully reasoned judgment by former Chief Justice Muria in the matter of Christopher Columbus Abe v. Minister of Finance and Attorney-General, (unreported cc 197 of 1994 judgment dated 12 August 1994).

4. In that case Muria CJ, [again dealing with a summons for declarations against the Minister of Finance as a consequence of the manner in which supply had been obtained in terms of the Appropriation Act for the year in question] referred to a number of authorities dealing with the exercise of the courts discretion. The Attorney General [the Attorney] quoting the oft repeated phraseology at 6 of the judgment emphasised the need to exercise restraint, caution and circumspection in the exercise of the discretion and only in cases which are plain and obvious and where the offending pleadings are obviously unsustainable or incurably defective. The case is guidance but not authority on the use of affidavit material in such matters. I will deal with that particular issue later in these reasons.

5. Of course the summons of the plaintiff is not constituted by a statement of claim [a pleading as such] but is brought under Order 58 rule 2 which provides for the determination of questions of construction of any provision of a written law, [in this case "the Constitution"] and for a consequent declaration of right claimed.

6. Grappling with what constitute a "reasonable cause of action" in terms of principles set down for private law cases where pleadings normally enliven the claim, whilst helpful, do not, as Mason P says, have an unqualified application to constitutional questions. –

"The traditional statements made in private law cases to which I have referred do not have an unqualified application to constitutional questions of the kind that arise here. A constitutional court and this court is effectively the constitutional court of the Solomon Islands has a responsibility to respond to constitutional questions if it can conveniently and appropriately do so."

[The Prime Minister v The Governor General {unreported Ct of App. 14/1998 per Mason P at 10}]

7. The factual circumstances appertaining at the time of the summons by the Honourable MP Abe were relevant, in Chief Justice Muria’s reasoning as affording no doubt, "live issues" for he adopted Kapi DCJ’s ratio in Lowa v Kipe (1991) PNGLR 265 at 290;-

"The phrase "cause of action" has two components. First, there must be a right which is given by a law, such as, entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution. This is what is referred to as the form of action. Secondly, the pleadings must disclose all the necessary facts which give rise to the form of action"

8. Muria CJ went as to say;-"with respect, I feel His Honour has set out a very useful approach as to how pleadings which involve both matters of Constitutional and statutory laws can be examined in order to determine the cause of action. I respectfully adopt His Honours approach for the purpose of the present case".

9. Muria CJ was satisfied on the sufficiency of facts "as disclosed in the pleadings or the particulars and not in the affidavit". He did not need to rely on the evidence by which the applicant sought to prove his plea but rather was satisfied on the face of the document. It is that statement which the Attorney says should guide me.

10. Here the court is faced with a claim for declarations stripped of any factual matters. It does not, in terms of Lowa’s or Abe’s case have incidents of contravention giving rise to a claim under s. 83(1) of the Solomon Islands Constitution. It is in effect, a claim for interpretation shaved of any particular factual circumstance, a claim where, to adopt the words of Mason P the court may have "a responsibility to respond to constitutional questions if it can conveniently and appropriately do".

11. I differentiate this type of case from civil claims for this is couched as a constitutional question. The differentiation is necessary to avoid following lines of enquiry about "causes of action with some chance of success; or raise some question fit to be decided by a judge etc"; where the real issue relates to civil proceedings seeking a judgment.

12. For the effectiveness of a declaration is restricted. "It cannot change existing legal relations, unless by giving them the status of a res judicata". I will come back to this issue, "existing legal relations" since that is the flaw in the plaintiff claim.

13. In this case the possibility of res judicata cannot arise for we do not deal with any previous decisions whose status or effectiveness is questioned. (See Dorney v. Commissioner of Taxation (1980) 1 NSWLR 404 per Hutley JA at 408; Foster v. Jododex (1972) 46 ALJR per Gibbs CJ at 704; Barradough v Brown [1897] UKLawRpAC 32; (1897) AC 615 per Lord Davey at 623, 624).

14. There is power in the court to elicit, if possible material which throws light on the questions posed, for in this instance, the summons does not raise particular facts as regards these claims of the Governor-General so as to show a real or threatened breach of part of the Constitution which may vitally affect him so as to afford him a right to come seeking the court’s help.

15. In Abe’s case contravention of the provisions of Section 5 (3) of the 1994 Appropriation Act 1993 (sic) by borrowing sums in excess of the amounts stipulated, without first obtaining the requisite further authority of Parliament was alleged. Clearly a matter which went to issues of fact, of particular interest as Abe was a member of the House of Parliament.

16. In this case, no such threatened contravention is detailed in the summons. It relates to polity, for the affidavit of the Governor-General does seek to explain why these courts declarations are sought. They may shortly be said to go to political expediency in the absence of particularisation of threatened breach.

17. In the circumstances I read the affidavit since the justice of the case so requires it. (Tringali v Stewardson Stubbs and Collett Ltd (1965) NSWLR per Else-Mitchell at 418;
    
18. Barradough’s case, in its simplicity makes the salient point that the court to give relief by way of declaration in accordance with O. 27, must find a justiciable issue. There is on the argument of Mr. Radclyffe, no provision of the Constitution in the terms of the summons which enables the Governor-General to claim a right to a process involving the Attorney in the absence of express words. In other words, there can be no question of interpretation.
    

19. Mr. Radclyffe says that it is inappropriate to proceed to deal with the proceedings on the motivation of the Governor-General in the circumstances of this case apparent from his affidavit [the basis used by the Attorney in his argument to resist the application], for that it is to further the interest of the Government by obligating the respective Commissioners to rely on legal advice of the Attorney-General the Governments principal legal adviser. The effect Mr. Radclyffe says of the Government purpose in having the Commissioners bound to follow the advice is to "keep the Commissioners in line".

20. The Governor-General in paragraph 15 of his affidavit averred that;-

"Mindful of my constitutional role and responsibilities and anxious to avoid further confrontation between the constituent arms and organs of Government, I have instructed the Attorney-General to initiate these proceedings to seek authoritative judicial answers to the questions set forth in the Originating Summons filed herewith".

21. In considering the interpretation to be placed on particular parts of the Constitution the President of the Court of Appeal, Lord Slynn in Primo Afeau’s case, said at 7;- "that ...the Interpretation and General Provisions Act (cap. 85) ... does not directly apply since the Constitution is not an Act."
    
22. It is possible in particular circumstances where human rights are likely to be considered in the context of the legislation or Constitution, to have regard to what have become known as "principles of legality" and the court may utilize such principles when seeking the meaning of text. The Attorney points to that principle in his written argument dealing with "the touchstone of legality being the operative basis ...".
    
23. The subjective reasoning of the Governor-General, is not necessarily determinative, as Mr. Radclyffe would have it, for the court to consider as reason or not to proceed, rather the issue really is whether the questions posed in manner, by the summons, can be said to evince a need for interpretation of particular provisions of the Constitution and if not, do the questions raise principles of legality in any event which justify the courts determination.
    

24. It is to be preferred, in this case where no particular breach is pleaded or anticipated, that objective or subjective tests going to reason, be avoided. The intention or meaning of the instrument or legislation depends upon the expressions used, not a subjective view of a state of affairs independent of the law.

25. Let me go back, now, to the answer to the question posed by the Court of Appeal in 14/98, in the case of The Prime Minister; is it real and not merely theoretical. Mr. Radclyffe argues the applicant’s questions are neither real nor theoretical.

26. His argument points to the Governor-General’s role and responsibilities relied upon in paragraph 15 of his affidavit in support of his claim. I have touched on that portion of his evidence in paragraph (20) above.

27. The Governor-General spoke of the controversy surrounding the appointment of the Attorney-General as reason to seek this courts answer to the questions posed but, Mr. Radclyffe says, on the face of s. 42(2), the Governor-General has no role (in so far as an executive act is concerned) for his role is administrative in the sense that the act of "swearing in" is not clothed with the power to appoint. In itself, it is not controversial. [It cannot be said to involve the Attorney’s advice.]

28. With that I agree for controversy or confrontation as the Governor-General categorises it may be expected in the workings of the organs of State but of itself does not give rise to a right of action.

29. Mr. Radclyffe says that in the case of the Police Commissioner, the Governor-General does have the power to appoint but acts in accordance with the advice of the Prime Minister after the Prime Minister has consulted with the 3rd defendant. Again he performs an administrative (contrasted with an executive) act.

30. The issue of the legality or other-wise of Mr. Moti’s suspension by the Public Service Commission is not, Mr. Radclyffe says with respect, for the Governor-General to consider, but for this court in properly constituted proceedings.

31. I should say by canvassing the Governor-General’s comments in his affidavit about the public interest in the appointment of Mr. Moti QC as Attorney-General, Mr. Radclyffe has drawn attention again to his criticism of the motivation of the Governor-General, for he points to s. 137(4) of the Constitution which states that in the exercise of their functions the Commissions shall not be subject to the directions or control of any other person or authority, except where otherwise provided.

32. Justice Adams when describing the function of the Attorney-General said,"–the only comparable is that of giving legal advice and taking legal proceedings on behalf of the Government and in certain circumstances to undertake proceedings in the public interest of which the most important concern the protection of the administration of justice. [Primo Afeau v. Judicial & Legal Services Commission [Ct of Appeal no 4 of 2007 judgment dated 23 March 2007; Adams JA at 9] His comments, obiter rely on the Constitution as a written source document and while the President of the Court, at 8 of his judgment, comments that the Attorney’s functions in the Solomon Islands and London "are the same or truly comparable", the President is confining his attention to the "the nature of his functions and his relationship with Government".

33. In this case while the Governor General may be said to have taken up the cause of Government to avoid controversy, no particular provisions of the Constitution are called in his aid to relate his claim to his relationship with Government so as to afford him claim of right to this court where the Government acts in controversial circumstances.

34. In Cooper Brooks [Wollongong] Pty Ltd v. Federal Commissioner of Taxation [1981] 147 CLR 297, Gibbs CJ said at 305; - "if the language of a statutory provision is clear and unambiguous and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of acts of the legislature", as Lord Moulton said in Vacher & Sons Ltd v. London Society of Compositors [1913] AC 107 at 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute".

35. In so far as the Governor General’s role and function involve the Commissions so named, the plaintiff does not point to particular phrases or language of the Constitution calling for elucidation by judicial interpretation, rather relies on the assertion the Governor General has instituted the proceedings to secure judicial support in cultivating a "culture of compliance" on the part of public functionaries. It follows that Mr. Radclyffe’s submission about the absence of interest in the sense that the Governor General’s role is principally administrative is not challenged on the wording of the relevant parts. What is obvious, however in these circumstances is the caution sounded by Chief Justice Gibbs who impliedly criticised judges who read into legislation words not there so as to fashion justice or social policy.

36. Do the questions then, raise principles of legality which call for my affirmative answer? For the practical consequences argued by the Attorney go beyond the function described by Justice Adams and on its face, the provisions of s. 42. For s. 42 provides for an Attorney-General who "shall be the principal legal adviser to the Government. The section does not say that argued by the Attorney; - "... cultivating a culture of compliance on the part of public functionaries"".

37. Will the principles of legality assist in throwing light on, what the Attorney says, is necessary to guide the exercise of these "public functionaries" powers? For I am satisfied that the Governor-General as matters stand, has not by his questions, reached the stage as affording him standing to raise a "live issue" rather than something theoretical going more to the political wish of the Government.

38. I am also unable to accept the Attorneys argument about the principles of legality, which in fact tend to support striking out. Affirmative answers to the questions risk curbing the independence of the Commissions deliberations, a safeguard against Executive intrusion. The Governor General’s reasons make that risk plain.

39. For the Governor-General’s wish to avoid "further confrontation between the constituent arms and organs of Government," while inviting, is not a "cause" within the phraseology understood and discussed in those cases to which I have alluded. It goes to politics rather than legal interpretation, the function of the court.

40. So will the principle of legality take the matter further? In his paper (delivered to the Pacific Judicial Conference, Vanuatu, 26 July 2005,) entitled "Statutory Interpretation & Human Rights" the Hon. JJ Spigelman AC, Chief Justice of New South Wales adopts Lord Steyn’s definition;-

"Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption. But this assumption only has prima facie force. It can be displaced by a clear and specific provision to the contrary".

(R v Secretary of State to the Home Department; Ex Parte Pierson [1997] UKHL 37; (1998) AC 539 at 587)

41. Of course Spigleman CJ is dealing with human rights interpreted where no Bill of Rights or a Bill of Rights of limited scope pertains. But the principle may in my view, be extended as an aid in this case if the manifestations of the principle can be shown to be relevant. At 6 of his paper Spigleman CJ says,

"The principle of legality is a unifying concept which can be understood to encompass a range of more specific interpretive principles that have emerged over many centuries of common law development of the law of statutory interpretation. Amongst the rebuttable presumptions, which it may now be convenient to consider as manifestations of the principle of legality, are the presumptions that Parliament did not intend:

• To invade fundamental rights, freedoms and immunities.
• To restrict access to the courts.
• To abrogate the protection of legal professional privilege.
• To exclude the right to claims of self-incrimination.
• To permit a court to extend the scope of a penal statute.
• To deny procedural fairness to persons affected by the exercise of public power.
• To give immunities for governmental agencies a wide application.
• To interfere with vested property rights.
• To alienate property without compensation
• To interfere with equality of religion
  

42. Nowhere, would it seem, do these manifestations of the principle suggest the fact of an imbroglio or confrontation between the constituent arms and organs of government as sufficient to call in aid the principle except that the 6th presumption does touch on a vital issue.

43. The Constitution may presume to that underlying premise, touched on above; that it does not intend to deny procedural fairness to persons affected by the exercise of public power. Where that exercise, by the constituent Commissions, is hedged about by the particular Constitutional imperatives to which the Governor-General by his questions may seek to presume to further constrain the Commissions, if the court were to answer the questions in the affirmative, then the exercise is plainly contrary to the principles of legality. The procedure of the Commissions has not been suggested to be under the auspice of the Attorney, rather it would further the interests of the Government if that was available. In practice, as shown in this summons, conflict may be expected between government instrumentalities and the Commissions but the rights of the individual and the Commissions under the Constitution are to be found in its terms, not according to the wish of the Government.

44. I am satisfied this court should not entertain these questions for they call for determination in theory where the practical effect on persons subject to the exercise of power by the Commissions may be consequential to the Attorney’s latent advice. No provision of the Constitution affecting the Commissions has been pleaded which presumes this latent advice of the Attorney.

45. There is no apparent cause of action on the facts deposed. The Governor-General is not assisted in this case by the principle of legality. I have accepted the defendant’s argument on the question of a cause of action. Again, since the Governor General has no standing in the present case, for that it is "futile", the summons should be struck out as frivolous and vexatious.

46. The Attorney has argued that, if I were to consider that course, I should allow the Attorney to seek to substitute the Attorney General as the plaintiff, so that the questions may be heard. They are questions which do not, in my view, permit substitution. The Head of State and the Office of the Attorney General are not similar in authority or function. It would be presumptuous of the Attorney to suggest otherwise. If the Attorney were to consider fresh proceedings then that is a matter for him.

47. I decline to grant leave for any substitution.

Summary.

Existing legal relations.

48. Existing legal relations between the Governor General and the named Commissions do not for the reasons that I have given, evince any right in the plaintiff to the relief that he seeks.

Declarations may be made where convenient and appropriate to do so.

49. There is no interpretation called for of particular parts of the Constitution which would afford the plaintiff that right. His constitutional role and responsibilities in his relations with the named Commissions do not afford him any greater powers than those administrative in nature which cannot afford him claim of right in these circumstances. It is inappropriate to allow the proceedings to remain for they show no cause of action nor reach the level of a theoretically possible claim. It is convenient then to strike out the summons.

50. I strike out the summons on the basis of the plaintiff’s absence of standing for that the proceedings are frivolous and vexatious and have no cause of action.

THE COURT