Rojumana v Regina [2008] SBHC 23; CRAC 462 of 2007 (2 May 2008)

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1	Mwanesalua,J: This is an appeal by Mr. Clement Rojumana and Mr John Maetia against an order of the Learned Magistrate, committing them for trial to the High Court under S. 219 of the Criminal Procedure Code (Cap.7) "the CPC", on charges of official corruption, contrary to S. 91(a) of the Penal Code (Cap. 26) "the Code". Mr Rojumana was the Minister responsible for the Citizenship Commission and Mr Maetia was the Chairman of that Commission when they allegedly committed the offences. Mr Rojumana was appointed to the office of Minister under S.33(3) of the Constitution, while Mr Maetia was appointed to the Office of Chairman pursuant paragraph 2 of the schedule to the Citizenship Act (Cap. 57).

2	Mr Rojumana and Mr Maetia were dissatisfied with the Order of the Learned Magistrate and lodged their appeal to this Court under S. 283 of the CPC on the following grounds:

	(1)	That the Learned Magistrate erred in finding that in the circumstances where there is no evidence capable of proving an element of an offence, the Magistrates’ Court has reserved discretion to commit an accused for trial on that offence.

	(2)	That the Learned Magistrate erred in refusing to properly consider the question on whether there was sufficient evidence upon which a court could be satisfied beyond reasonable doubt that the Appellants were persons employed in the Public Service.

	Mr Rojumana and Mr Maetia then seek an order for relief that:
	(1)	That order of 6 October 2006 that they be committed for trial on all counts be quashed;

	(2)	That the matter be remitted for hearing according to law;

	(3)	Any other orders the court sees fit.

3	Mr Rojumana was charged with 25 counts of Official Corruption, while Mr Maetia was charged with 35 counts of the same offence. The committal proceedings on their cases were held in the Central Magistrates’ Court in Honiara on 6 October 2006; and the Learned Magistrates’ ruling was delivered in the afternoon of the same day. The preliminary inquiry was conducted through witness statements under S.211(d) of the CPC. In his ruling, the Learned Magistrate remarked, "The discretion vested upon the committal Magistrates is quite broad. Even if there is no sufficient evidence and the Committal Magistrate has an opinion that the accused person ought to be committed, he may do so, in the exercise of that discretion. In this case, I have considered certain considerations which in my opinion has urged me to exercise this discretion vested on me." He found after reading the witness statements that there was sufficient case against Mr Rojumana and Mr Maetia. He therefore committed them for trial to the High Court under S.219 of the CPC accordingly. He left the issues on whether Mr Rojumana and Mr Maetia were "persons employed in the Public Service" within the terms of SS. 4 and 91(a) of the Code; and whether the Constitution is an "Act" within the terms S. 4 of the Code and S.16 of the Interpretation and General Provisions Act (Cap. 85) ("the Interpretation Act"), to be considered as preliminary points by the trial court, as their determination during the preliminary inquiry, would require consideration of the Constitution as well.

4	Mr Rojumana and Mr Maetia were committed for trial to the High Court under S. 211 (d) of the CPC which states:

	"S.211 (d). If having considered the contents of such statements, the Magistrate is of the opinion that the facts alleged therein would, if proved in evidence, constitute sufficient grounds for committing the accused person for trial, he shall proceed as provided in SS. 215 and 216".

5	The facts alleged in the witness statements, if proved in evidence, showed, inter alia, that Mr Maetia was Chairman of the Commission from 15 September 1997 to 10 October 2003. Between January and September 2003, he received huge sums of money from Chinese nationals who only arrived in Solomon Islands between 2000 and 2003, to process their application forms for citizenship, citizenship certificates and Solomon Islands passports. One of these Chinese nationals obtained his citizenship and Solomon Islands passport whilst he was still living in China. None of their citizenship application forms prepared by Mr Maetia and the money he received from them were received by the Citizenship Office. Instead, Mr Maetia lodged appeals on behalf of these Chinese nationals to Mr Rojumana, then the Minister responsible for citizenship, alleging that the said applications were rejected by the Commission. It is clear that the appeals were made directly to Mr Rojumana to bypass the Commission as the applicants would not have qualified to become naturalized citizens at that point of time. Mr Rojumana allowed the appeals and granted citizenship to the Chinese nationals with the full knowledge that they have lived in Solomon Islands far less than the period of 10 years continuous residence required under Citizenship Law. The citizenship certificates issued to the Chinese nationals after their appeals were allowed were jointly signed by Mr Rojumana and Mr Maetia.

6	There is no discretion vested on a Committal Magistrate in this jurisdiction to commit an accused for trial to the High Court where no sufficient case against him is disclosed in witness statements. This is clear from SS. 211 (d), 215(1), 216 and 219 (1) of the CPC. In this case, Mr Rojumana and Mr Maetia were committed for trial to the High Court on the basis that the facts alleged in the witness statements, if proved in evidence, constituted sufficient grounds or case to commit them for trial. They were not committed for trial on any broad discretion vested on the Committal Magistrate.

7	By their second ground of appeal, Mr Rojumana and Mr Maetia, contend that, the Learned Committal Magistrate made a mistake when he refused to consider the question whether there was sufficient evidence upon which a court could be satisfied beyond reasonable doubt that they were persons employed in the Public Service. The question on whether they were "employed in the Public Service", is one of the elements to be proved against them in the High Court, in the charge laid under S.91(a) of the Code. The Learned Magistrate passed that question to be determined by the High Court during the trial. He made no mistake in doing so, as he was merely doing that pursuant to S.37 of the Magistrates’ Courts Act (Cap. 20).

8	It is clear from S.211(d) of the CPC, a Committal Magistrate is not required to consider the question on whether there was sufficient evidence upon which a court could be satisfied beyond reasonable doubt that Mr Rojumana and Mr Maetia were persons employed in the Public Service when committal is done on witness statements. The Committal Magistrate was only required to be satisfied that the facts alleged in witness statements, if proved on evidence, constituted sufficient case to commit Mr Rojumana and Mr Maetia for trial. The Committal Magistrate was satisfied to that extent in this case.

9	Advocate for Mr Rojumana and Mr Maetia urged this court to determine whether the Constitution is an "Act" and whether they were "persons employed in the Public Service". This strong desire was supported by the advocate for the Respondent, as shown by his written submissions. These are therefore the vital issues which the parties invited this court to address in this appeal so as to avoid further delay in the disposal of the case.

10	The United Kingdom facilitated Solomon Islands to become an Independent State within the Commonwealth on 7 July 1978, through the enactment of the Solomon Islands Act 1978 (UK) (1978 C.15), which came into operation on 25 May 1978. S.1 of that Act relevantly declares"

	(1)	"1 - (1) On and after 7th July 1978 ("Independence Day") the territories which immediately before that day are comprised in the Solomon Islands Protectorate shall together form part of Her Majesty’s dominions under the name of Solomon Islands; and on and after that day Her Majesty’s Government in the United Kingdom shall have no responsibility for the government of those territories.

	(2)	...........................

	(3)	Subsection (1) above shall not affect the operation in Solomon Islands of any enactment or any other instrument having the effect of law passed or made before Independence Day,............".

11	Then on 31 May 1978, Her Majesty, the Queen, with the advice of her Privy Council, made the Solomon Islands Independent Order 1978 (1978 No. 783) which was laid before Parliament on 8 June 1978 and came into operation on 7 July 1978. This Order was made by Her Majesty under powers vested on her in S.5 of the Foreign Jurisdiction Act 1890 (UK) (1890 C. 37). SS. 5 and 11 of this Act are in the following terms:

	(5)	Power to extend enactments in the First Schedule

		(1)			It shall be lawful for Her Majesty the Queen in Council, if she thinks fit, by Order to direct that all or any of the enactments described in the First Schedule to this Act, or any enactments for the time being in force amending or substituting for the same, shall extend, with or without any exceptions, adaptions, or modifications in the Order mentioned, to any foreign country in which for the time being Her Majesty has jurisdiction.

		(2)			Thereupon the enactment shall, to the extent of that jurisdiction, operate as if that country were a British possession, and as if Her Majesty in Council were the Legislature of that possession.

	(11)	Laying before Parliament, and effect of Orders in Council

		Every Order in Council made in pursuance of this Act shall be laid before both Houses of Parliament forthwith after it is made. If Parliament be then in session, and if not, forthwith after the commencement of the next session of Parliament, and shall have the effect as if it were enacted in this Act".

12	Advocates for parties in this appeal advanced different views on the meaning to be attached to the expression "shall have effect as if it were enacted in this Act" in that section. There is law which says that where it is provided by statue that an Order in Council is to have the effect of Act of Parliament, it is to be read as one with the Act under which it is made (see Patent Agents’ Institute v. Lockword [1894] UKLawRpAC 38; (1894) A. C 347; Baker v Williams [1897] UKLawRpKQB 150; (1898) Q.B. 23).

13	The Solomon Islands Independence Order 1978 was laid in Parliament pursuant to provisions of the Statutory Instruments Act 1946 (Ch. 36) of the United Kingdom Parliament.

14	The Constitution of Solomon Islands is set out in the schedule to the Solomon Islands Independence Order 1978. S. 2(1) of this Order states:

			"the existing laws" means any Act of Parliament of the United Kingdom, Orders of Her Majesty in Council, Ordinances, Rules, Regulations, Orders or other Instruments having effect as part of the law of Solomon Islands (whether or not they have been brought into operation) immediately before the appointed day but does not include any order revoked by this Order".

	S. 5(1) of this Order relevantly states:

			"5(1).........the existing laws shall have effect on and after the appointed day as if they had been made in pursuance of the Constitution and shall be construed with such modifications, adaptions, qualifications and exceptions as may be necessary to bring them into conformity with the Solomon Islands Act or this Order".

15	S. 59 of the Constitution relevantly states:

	(1)		Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Solomon Islands.

	(2)		The laws referred to in this section shall take the form of Bills passed by Parliament; and when a Bill has been passed by Parliament, it shall be presented to the Governor-General who shall assent to it forthwith on behalf of the Head of State, and when such an assent is given, the Bill shall become Law.

	(3)		............................

	(4)		All laws made by Parliament shall be styled "Acts of Parliament" and the word of Enactment shall be ‘Enacted by the National Parliament of Solomon Islands".

16	The meanings of words in Acts are set out in S.16 of the Interpretations Provisions Act (Cap. 85) ("the Interpretation Act") . S.16 states inter alia:

	"16(1)			In an Act – "Act" or Act of Parliament" means a law made by Parliament pursuant to S.59 of the Constitution. "Subsidiary Legislation" means any legislative provision (including a delegation of powers or duties) made in exercise of power in that behalf conferred by any Act, by-law, notice, order, proclamation, rule, rule of court or other instrument.

	16 (2)			The expression "the Minister" in an Act means the Minister for the time being responsible for the administration of the Act or, if more than one Minister is so responsible, the Minister so responsible with respect to the Act in which the expression occurs.

17	Advocate for Mr Rojumana contends that the Constitution is not an "Act". He refers to the case of Primo Afeau –v- Judicial and Legal Service Commission and Attorney-General ([1]) where Lord Slynn of Hadley P, said:

				"......... I agree with Mr Radclyffe that S.32(3) of the Interpretation and General Provisions Act (Cap.85) which provides that in an Act, the powers to appoint includes a power to remove does not apply directly since Constitution is not an Act".

18	Further, Advocate submits that the view expressed by his Lordship is part of the ratio decidendi of that case and is therefore binding on this court. The decision in that case was that the Prime Minister could validly advise the Judicial and Legal Service Commission to remove the Attorney-General under his advisory powers under S.42(2) of the Constitution and that the Commission must follow that advice, as there was no expressed provision to terminate the Attorney-General in the Constitution. The ratio decidendi (reason) for that decision is because the appointments and terminations to office of Attorney-General are made at pleasure in view of the special role and responsibility of the Attorney-General. It is this reason in that judgment which constitutes the binding precedent for courts in the future. With respects, his Lordship’s view would be distinguished from this case on the following grounds: First, his Lordship’s view was not supported by any reasons; second, that the facts of that case were not the same as in this case; and third, the law in an Act that "the power to appoint includes a power to remove, does not apply directly since a Constitution is not an act", does not form part of the ratio decidendi in that case.

19	The Solomon Islands Independent Order 1978, is an existing Law within the terms of S. 2(1) of the Order itself. It is an imperial enactment as defined in S.16 of the Interpretation Act. It is an existing Law which became effective on and after the "Appointed Day", that is to say, 7 July 1978, and is therefore deemed to be an Act of Parliament enacted under S.59 of the Constitution by virtue of S.5 of the Order. So, as the Solomon Islands Constitution is a schedule to that deemed Act, the Constitution itself becomes part of that Act, pursuant to S.6(1) of the Interpretation Act. It therefore follows that the Constitution is an Act of Parliament. Moreover, S.64(2) of the Interpretation Act states: "A reference in any subsidiary legislation to the Constitution, an Act, any other subsidiary legislation, or any provision thereof, is a reference to the Constitution, the Act, the subsidiary legislation or the provision thereof, as from time to time amended".

20	There are many subsidiary legislations which made reference to the Constitution and in provisions thereof. They include the Standing Orders of the National Parliament made under S.62 of the Constitution; The members of Parliament (Entitlements) Commissions Regulations made under S.69 B(2) of the Constitution; The Public Service Commission Regulations made under S.137 (1) of the Constitution and The Solomon Islands Independent Order 1978, a statutory instrument pursuant to S.1(i) of the Statutory Instrument Act 1946 (UK) (ch. 36).

21	I find that Mr Rojumana was appointed to the office of Minister by the Governor-General under the Constitution, an Act. On the other hand, there was no dispute that Mr Maetia was appointed pursuant to paragraph 2 of the schedule to the Citizenship Act.

22	Advocate for Mr Rojumana and Mr Maetia contends that his clients were not persons employed in the Public Service. S.4 of the Code relevantly defines "person employed in the Public Service" to mean any person holding any of the following offices or performing the duty thereof, whether as a deputy or otherwise, namely -

	(i)	Any office to which a person is appointed or nominated by Act or by election; or

	(ii)	Any civil office, the power of appointing to which or removal from which is vested in any person or persons holding an office of any kind included in either of the last two preceding paragraphs of this section".

23	The last two preceding paragraphs referred to in paragraph (ii) above were as follows:

	(i)	any civil office, including the office of High Commissioner, the power of appointing a person to which or of removal from which is vested in Her Majesty or in the High Commissioner; or

	(ii)	Any office to which a person is appointed or nominated by Ordinance or by Election; or"

24	Paragraph (i) of these two paragraphs was deleted by amendment in 1978 (See LN 46 of 1978). Further, paragraph (ii) was also amended by deleting the word "Ordinance" and replacing it with the word "Act", and then renumbering it in its present form as paragraph (i). In that same amendment, a former paragraph (iii) in the same section was renumbered as the present paragraph (ii), but still retaining the words "either of the last two paragraphs" as contained in the former paragraph (iii). If that paragraph was wholly amended, the existing paragraph (ii) would merely have reference to the existing paragraph (i).

25	Mr Rojumana contends through his Advocate that he was not a "person employed in the Public Service" in terms of S.4 of the Code. In the Independent State of Solomon Islands, the executive authority of its people is vested in the Head of State. That executive authority is exercised on behalf of the Head of State by the Governor-General either directly or through officers subordinate to him. As with other Ministers, the Governor-General appointed Mr Rojumana as a Minister. Following that appointment, the Governor-General assigned Mr Rojumana to be responsible for the administration of the Department of Home Affairs and for the conduct of the business of the Government of Solomon Islands, among other business, the business of citizenship. His functions relating to this business include: making rules to guide the conduct of the Commission in its meetings; appointing members and chairman of the Commission and prescribing the level of their remunerations and expenses; directing the Commission in writing to advise him on matters relating to citizenship when required; taking allegiance subscribed to by applicants for citizenship; receiving and considering appeals by applicants whose applications have been rejected by the Commission; certifying citizenship status of persons who have doubts about their Solomon Islands citizenship; signing and granting citizenship certificates to successful applicants; maintaining a Register of Persons who obtained, lost and regained their citizenship; and removing members and the Chairman of the Commission when required.

26	Mr Rojumana held a Constitutional Office. His Office as Minister was created by the Constitution, and his term of office was fixed and defined in the Constitution. Although he was a subordinate official to the Governor-General, he was a prominent government official assigned to perform administrative duties in the Department of Home Affairs regarding, among other business, the business of citizenship. In the course of carrying out that business he allegedly committed 25 counts of official corruption upon which he was committed for trial to the High Court. The view of this Court is that as he was appointed to his office under the Constitution, an Act. He was a "person employed in the Public Service" as defined in paragraph (i) of section 4 of the code, for purposes of the Code.

27	Mr Maetia was appointed to the office of Chairman by the Minister of Home Affairs, who was responsible for the administration of the Citizenship Act. Mr Maetia was an official who was invested with an office of trust, authority and command. The meetings of the Commission were called after consultations were made with him. The agendas of such meetings were set after consultations were made with him. He presided over all meetings in which he was present, and held a casting vote when there were ties in voting. He had overall control of proceedings of the Commission during meetings. He discharged these responsibilities while dealing with citizenship business, for and on behalf of the government, for the general convenience and benefit of the public. The government paid his remunerations and expenses whilst he was Chairman of the Commission. It was in the course of discharging the responsibilities of his office that he allegedly committed 35 counts of official corruption upon which he was committed for trial to the High Court. This Court is of the view that Mr Maetia is a "person employed in the Public Service", as defined in S.4 paragraphs (i) and (ii) of that section.

28	But, Advocate for Mr Maetia submits, that the expression, ‘appointed or nominated by Act’ does not include persons appointed ‘under’ an Act or ‘pursuant’ to an Act, like Mr Maetia himself. For example, S.7 of the Magistrates’ Courts Act (Cap. 20), which refers to ‘any person appointed pursuant to the Constitution to be a Magistrate; S.2 of the Fisheries (United States of America) Treaty Act, which defines ‘Administrator’ as meaning ‘the administrator appointed pursuant to Article 1 of the Treaty; and S.2 of the Forest Resources and Timber Utilisation Act (Cap.40), which defines the Commissioner of Forest Resources as the ‘Commissioner of Forest appointed under S.3’......................

29	He contends that "appointment or nominated by Act" refers to those who hold ex-officio offices or are otherwise appointed or nominated by Act directly. For example: the Chief Justice holds the post of Chairman of the Judicial and Legal Service Commission by virtue of direct ex-officio appointment by S.117 of the Constitution; the Registrar of the High Court holds office as Registrar of the Court of Appeal by virtue of ex-officio appointment by S.8 of the Court of Appeal Act (Cap.6); the Attorney-General holds the post of Chairman of the Disciplinary Committee by virtue of direct ex-officio appointment by S.8 of the Legal Practitioners Act (Cap. 16); the Senior Government officer responsible for Agriculture holds the office of Chairman of Pesticides Registration Advisory Committee by virtue of direct ex-officio appointment by S.3 of the Safety at Work (Pesticide) Regulations; and the Director of Mines holds the post of Chief Geologist by virtue of direct ex-officio appointment by S.5 of the Mines and Minerals Act (Cap. 42).

30	It is clear to this Court that the Chief Justice, is appointed Chairman of the Judicial and Legal Service Commission; the Registrar of the High Court is appointed Registrar of the Court of Appeal; the Attorney-General is appointed Chairman of the Disciplinary Committee; the senior government officer responsible for Agriculture, is appointed Chairman of the Pesticides Registration Advisory Committee; and the Director of Mines is appointed to the post of Chief Geologist are directly appointed by law to positions in the named commission, committees and offices, by virtue of the office held by each of these officials.

31	Advocate for Mr Maetia submits that it was clear to him that when the Code talks of appointment "by Act" in S. 4(1) of the Code, it is referring to the appointment by the Act itself, not an intermediate official pursuant to an Act. He says that the words must be given their natural and actual meaning.

32	The expression "by Act" in paragraph (i) of S.4 of the Code is not defined in that Act. The point to be noted about this expression is that the word "by" is used before the noun "Act". The third meaning of the word "by" as defined in the Concise Oxford English Dictionary ([2]) is as a word "used for showing how or in what way something is done."

33	It seems that the use of the word "by" in the expression "appointed by Act" merely indicates the way in which an official is vested with an office or position in the Public Service for purposes of the Code. The Code is a Public Act. The offences created in its provisions apply to all persons from 8 year old and upwards. Also, it applies to persons employed in the Public Service who are appointed under, pursuant, by virtue of or directly by Act. It does not only apply to officials directly appointed by law. This meant that Mr Maetia was appointed to office of Chairman pursuant to an Act. "Act" is defined as law made by Parliament pursuant to 59 of the Constitution under S.16 of the Interpretation Act. In the same way, Mr Rojumana was appointed to the office of Minister under the Constitution, an Act. For purposes of the Code, "Public Service" is defined in S.16 of the Interpretation Act as the service of the Crown in a civil capacity in respect of the government of Solomon Islands. Mr Rojumana and Mr Maetia served the Government in civil capacity in the Office of Minister and Chairman respectively, when they allegedly committed their offences.

34	Mr Rojumana and Mr Maetia were charged with official corruption. The term "corruption" is not defined in the Code. Definitions of corruption vary. But for the purposes of the T1 Source Book([3]), "(corruption) involves behaviour on the part of officials in the public sector, whether politicians or civil servants, in which they improperly and unlawfully enrich themselves, or those close to them, by the misuse of the public power entrusted to them." The definition is relevant to the construction of S.91 of the Code.

35	There is a similar provision to S.91 of the code in the Leadership Code (Further provisions), Act 1999. That is S.17. But the sentences under these sections are different. The punishment under S.91 is 7 years imprisonment while the penalty under S.17 is a fine of up to $10,000.00.

36	Mr Rojumana and Mr Maetia are both leaders in terms of the Leadership Code (further provisions) Act 1999. (See SS.2 and 3(b) of that Act). However, the DPP has decided to investigate, charge and try them before the High Court. That is perfectly in order. Their offences can either be investigated, and prosecuted by the DPP in the High Court under S.91 of the Code, or be investigated, charged and dealt with by the Leadership Code Commission under S.17 of the Leadership Code (Further Provisions) Act 1999. However, they cannot be punished twice for their offences (See S.1 of the Code and S.40 of the Leadership Code (Further Provisions) Act 1999).

37	In conclusion, the finding of this Court is that: there were grounds or sufficient case for the Committal Magistrate to order Mr Rojumana and Mr Maetia for trial to the High Court; the Constitution is an "Act" and that Mr Rojumana and Mr Maetia are "persons employed in the Public Service" for the purpose of the Code. They can be tried in the High Court for the offences laid against them under S.91(a) of the Code. The appeal by Mr Rojumana and Mr Maetia is dismissed accordingly.

High Court of Solomon Islands

Rojumana v Regina [2008] SBHC 23; CRAC 462 of 2007 (2 May 2008)