Wale v Attorney General [2011] SBHC 35; HCSI-CC 73 of 2011 (20 May 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 73 of 2011

BETWEEN

MATHEW WALE
Claimant

-And-

ATTORNEY GENERAL
(Representing Minister of Correctional Services)
First Defendant

-And-

ATTORNEY GENERAL
(Representing Parole Board)
Second Defendant

-And-

SPEAKER OF PARLIAMENT
Third Defendant

-And-

JIMMY LUSIBAEA
Fourth Defendant

Ms Bird for the Claimant
Mr Banuve for First and Second Defendants
Mr Nori (not appearing) for Third Defendant
Ms Tongarutu for Fourth Defendant

Date of Hearing: 9th May 2011
Date of Judgment: 20th May 2011

Decision

1. Mr Mathew Wale filed a claim for judicial review on 4th March 2011. At the time he was acting in person. He is now represented by Ms Bird. This point is of some relevance. The claim as filed is still the basis of the case. It has not been amended. Mr Wale has been legally represented since 31st March and so there has been ample time to amend. As it is I must now consider whether Mr Wale has satisfied the requirements of Rule 15.3.18 [1]. Rule 15.3.19 says that I may consider the papers filed in the proceedings and hear argument from the parties.

2. There is no discretion as to whether the court should or should not look at the matters set out in rules. Rule 15.3.16 says the court must call a conference. It is a sensible filtering process in any event. The court must be satisfied there is an arguable case and the claimant is directly affected by the subject matter of the claim and there has been no undue delay in making the claim and there is no other remedy available which would resolve the matter fully and directly. The "ands" in the previous sentence make for clumsy reading but I include them to emphasise the need for the Claimant to satisfy all of the "conditions". If he fails to satisfy just one then I must decline to hear the case and strike out the claim [2].

3. Just in case the reader is from another world I should give some brief background details. These can be discerned from the papers so far filed but the bulk of the information is already in the public domain and known to most Solomon Islanders anyway. Both the Claimant ("Mr Wale") and the Fourth Defendant ("Mr Lusibaea") were elected as Members of Parliament in August 2010. In November 2010 Mr Lusibaea appeared before Mr Justice Cameron in the High Court (Case No. 291 of 2007) and following guilty pleas was sentenced to an immediate term of imprisonment. The Second Defendant ('the Parole Board") sat sometime in January 2011and recommended Mr Lusibaea's early release from prison. It is also said that the First Defendant ("the Minister") remitted 95% of the sentence. None of the papers I have seen clearly set out how and when the Minister did that. The defence filed 30th March 2011 by the First and Second Defendants does not assist, it simply contains a denial of the allegations. In any event Mr Lusibaea was released from Rove Correctional Centre and continued to sit as an MP. Mr Wale, in effect, seeks to challenge Mr Lusibaea's eligibility to continue sitting as an MP.

4. The challenge is mounted on several fronts. Mr Wale says the appointment of the members of the Parole Board was ultra vires and void. If that is the case the effect would be to render their decision to release Mr Lusibaea null and void. Mr Wale also claims Regulation 198 of the Correctional Service Regulations 2008, "is contrary to section 38(2) of the Correctional Service Act 2007" and therefore the Parole Board could not rely on it, presumably to come to their decision to release Mr Lusibaea. The claim also says Mr Lusibaea is ineligible to attend Parliament because of the operation of section 52(2) of the constitution. Mr Wale also challenges the right of the Minister to grant "further remission of the sentence" and to grant parole and release on licence and wants the all the decisions of the Minister and the Parole Board quashed.

5. When Mr Wale filed his claim he also filed a certificate of urgency. He asked that the matter be dealt with quickly because Parliament was about to meet. A motion of no confidence (in the Government) was to be heard and as Mr Lusibaea was a member of the Government the argument was he should not be allowed to vote on that motion because he was not entitled to sit as a member of Parliament. The need for an urgent hearing disappeared because the motion was not proceeded with. Mr Wale withdrew the certificate of urgency on 4th April at what was supposed to be a Rule 15.3.16 conference.

6. At that hearing it was also suggested that the claim might be amended. This was no doubt as a result of concerns I raised (and I make it clear I had voiced them from the very beginning of this case) as to whether Mr Wale had sufficient locus standi to proceed with some of the claims. An application was made to adjourn the hearing. It seemed to me Mr Wale wanted to keep his case alive, but not really active, as some sort of bargaining chip in the political manoeuvring that was going on. I made it plain that I had a duty to make sure the process of the court was not abused (I believe I used the phrase I was not prepared to allow the court to be used as a political football) and that the Claimant had to make up his mind if he wanted to proceed and how he intended to proceed.

7. The claim has not been amended and I must deal with it in its entirety for the purposes of Rule 15.3.16. The simplest starting point is to consider the question of Mr Wale's locus with regard to all of the claims.

8. As Mr Banuve rightly pointed out, the phrase used in Rule 15.3.18(b) is whether or not the Claimant, "is directly affected by the subject matter of the claim". The phrase "directly affected" does not appear to have had a great deal of judicial consideration. Whilst the issue of locus standi per se has been considered on several occasions in this jurisdiction the subject under the new rules has not had a great deal of attention. I did consider it briefly in several cases but they were examples where it was clear the party was directly affected. The cases I remember were where a party was involved in a Chiefs decision which was being challenged and where a conservation group were making challenges in connection with breaches of the Conservation Act on Kolombangara. Quite often it is obvious one way or the other whether a party is directly affected and perhaps that is why there are so few detailed judicial considerations of the phrase.

9. The issue has been deliberated on in other jurisdictions. In England and Wales in the Bloody Sunday inquiry case [3] Mr Justice Collins considered the distinction between persons affected and those directly affected. An application was made by four soldiers who were to give evidence before the Bloody Sunday Inquiry. That inquiry was to hear evidence about what happened in a Northern Irish town in 1972 when British troops opened fire and 13 people died and 13 others were wounded. Even though the inquiry was taking place some 20 years later in the late 1990's the events being inquired into were still very sensitive. The four soldiers wanted to preserve their anonymity. The soldier applicants before Justice Collins were challenging the decision by the tribunal members not to allow anonymity. Lawyers representing the next of kin of those who had died in 1972 wanted to be heard on the soldiers' application. One of the issues raised was who could appear in the application before Justice Collins under Order 53 rule 5(3) and Order 53 rule 9(1) of the then Rules of the Supreme Court. Order 53 rule 5(3) read, "the notice of motion or summons must be served on all persons directly affected..." . Order 53 rule 9(1) allowed any person who desired to be heard (in respect of any motion or summons) to be heard (with the court's permission) even if they had not been served. The question was should the lawyers representing the next of kin have been served, or put another way, were the next of kin persons who were directly affected? Justice Collins said;

The importance of the question whether they are directly affected within rule 5(3) is that it may affect whether they have any appeal rights against any decision that is ultimately made. If they are merely proper persons to be heard within rule 9, then they do not have such rights. If they are directly affected, then they may.

That they are affected by the decision in the sense that it is a decision in which they have an interest and which may have some effect upon the manner in which their case is presented and their representatives are able to probe and to test the evidence given by the soldiers is undoubtedly true. They therefore can be regarded as persons affected. But are they directly affected? The word 'directly' must be given its proper weight. The House of Lords in R v Rent Officer Service and another, ex parte Muldoon [1996] 1 WLR 1103 had to consider the meaning of Order 53, rule 5(3). A narrow construction was placed upon it. The case concerned housing benefit. If the decision was made in a particular way, the Secretary of State would have a liability to make further payments to the local authority and so the Secretary of State maintained that he was directly affected by the decision because it could result in him having to incur an extra liability. The House of Lords said he was not directly affected. At page 1105E Lord Keith, who gave the only reasoned speech, said:

"That a person is directly affected by something connotes that he is affected without the intervention of any intermediate agency. In the present case if the applications for judicial review are successful the Secretary of State will not have to pay housing benefit to the applicants either directly or through the agency of the local authority. What will happen is that up to 95 per cent of the amount paid by the local authority to the applicants will be added to the subsidy paid by the Secretary of State to the local authority after the end of the financial year. The Secretary of State would certainly be affected by the decision, and it may be said that he would inevitably or necessarily be affected. But he would, in my opinion, be only directly affected by reason of his collateral obligation to pay subsidy to the local authority.""

10 Justice Collins then went on to say of the case before him;

The decision as to whether or not the soldiers should have anonymity is not one as far as I can see that conceivably can be said directly to affect the interested parties. The only persons it directly affects are the soldiers. Of course it indirectly affects them; of course they are interested in it; and of course for that reason they must be permitted to appear and be permitted to put forward arguments on the substantive application under rule 9. I suspect that Lord Keith and their Lordships would have sought a wider construction of "directly affected" if there were no such rule as rule 9(1), but that is the protection of those who do have an interest in the proceedings and whom the court decides should be permitted to be heard. It seems to me that it would be quite wrong for me to extend the meaning of "directly affected" in order to cater for this case. Lord Gifford submitted effectively that in the case of a tribunal, one is dealing with an inquisitorial regime rather than an adversarial; that those who are permitted to appear by the tribunal should be regarded as equivalent to the parties; and that since they clearly had an interest in the decision that was made about anonymity and it affected them, then in this context they should be regarded as directly affected. While I see the attraction of that approach, in my judgment it does not serve to affect the meaning of "directly affected" as set out by the House of Lord ex parte Muldoon . Accordingly, I am quite satisfied that they do not fall within Order 53, rule 5(3).

11. Our rules also distinguish between those who must be served and those whom the court orders to be served[4] (in respect of applications for judicial review). The former are those who are directly affected by the claim but for the latter there are no actual criteria. This does seem to be equitable and takes account of the rules of natural justice which allows that no person should be condemned without a fair hearing. Rule 15.3.11 (b) would allow the court to order service on someone who may be affected by the claim or whom it subsequently discovers may be affected, presumably directly or indirectly.

12. The phrase directly affected also crops up in our rules when dealing with the enforcement of the protective provisions of the Constitution under Chapter 15.11 [5].There is also a provision allowing those not served to be heard if the court thinks they are proper persons to be heard [6]. The question of locus in cases pursuant to section 83 of the Constitution has been dealt with in this court [7] and it seems to me that different tests as to locus apply to those matters.

13. I then turn to the provisions of Rule 15.3.18 (b) and our "new" rules in general. The rules set out in Chapter 1 are of relevance in all cases. The thrust of the overriding objectives (Rule 1.3) and the ability of the court to dispense with the rules "in the interests of justice" (Rule 1.14) direct the court away from rigid adherence to the rules and allow a more liberal approach to their interpretation. I am therefore not able to accept the suggestion that the inclusion of the words "directly affected" imply or mean a more stringent test of locus should now apply in judicial review cases. I do not think the words "directly affected" add or take anything away from the law as it has been long understood to apply to locus standi in judicial review proceedings in Solomon Islands. Just as "sufficient" qualifies the word "interest" so does "directly" qualify "affected". Whether someone has sufficient interest is, to all intents and purposes, asking the same thing as whether they are directly affected. Given our new rules, a useful guide could perhaps be as set out in the Treasury Solicitors' publication, "The Judge Over Your Shoulder" (2000 edition) namely;

"If the person challenging the decision can say that he is affected by it and there is no more appropriate challenger, and there is substance in his challenge, the court will not usually let technical rules on whether he has sufficient interest stand in its way"

14. Bearing all this in mind I would still have to say the claims and orders sought and set out in paragraphs 1, 2, 4, 5 and 6 of the claim relate to matters which do not directly affect Mr Wale. He may have an interest in them but they do not impinge on him directly. He may be affected by them in that they are the reason why Mr Lusibaea is said to be able to continue sitting as a member of Parliament. However it cannot be said that they directly affect him or that there is "no more appropriate challenger". There are no doubt others in a far stronger position to challenge the legality of the Parole Board's appointment and/or the Minister's decision on remission. In the circumstances I do not need to consider those matters in relation to the other requirements of rule 15.3. 18. Having failed one "test" (that set out in Rule 15.3.18(b)) I must decline to hear them and strike them out.

15. That leaves the one claim set out in paragraph 3. That claim relates to the provisions of section 51 of the Constitution. In brief, the section says that if a member of Parliament is sentenced by a court to more than six months imprisonment he should cease to perform his functions as a member of Parliament and his seat shall become vacant. There are certain savings and exceptions. Mr Wale complains the Third Defendant ('the Speaker") ruled incorrectly that the savings and exceptions applied to Mr Lusibaea. He says, in effect, Mr Lusibaea should not be able to sit as a member of Parliament. His doing so is, "A violation of the claimant's rights to meet in Parliament with colleague members of Parliament who possess legal standing to attend and debate Parliament business on the floor". It is important to understand Mr Wale's claim is not made pursuant to section 83 of the Constitution but as a claim under Chapter 15 of the rules, i.e. a judicial review.

16. Can Mr Wale say if Mr Lusibaea is sitting as a member of Parliament when he is not entitled to do so that is a matter which directly affects him as a member of Parliament? I believe he can. It is a situation that not only affects Parliament in general but also each individual member. It matters little which side of the House Mr Wales sits on. It matters little that his application is said to be politically motivated. What matters is whether he is directly affected by the Speaker's ruling allowing Mr Lusibaea to continue sitting. If Mr Lusibaea is not entitled to sit as a member then his continued participation in the business of Parliament must directly affect Mr Wale as a member duly elected and duly entitled to sit. I do not believe the saving provision of section 68 of the Constitution is of any consequence in reaching that view.

17. Having made that finding I can look at the rest of the requirements of rule 15.3.18. I do not think there is any doubt Mr Wale has an arguable case. Whilst he has said there has been a misinterpretation of section 52 of the Constitution it is clear he means section 51(2). The Speaker's reasons for reaching the decision he did have been set out in full and aired in public. There is merit in the arguments put forward by Mr Wale. There may even be argument as to whether the Speaker was entitled to rule as he did or whether his role is confined to the matters set out in the second paragraph of section 51(1). I do not have to decide, at this stage, if the arguments are compelling or weak or somewhere in the middle. If Mr Wale has an arguable case then Rule 15.3.18(a) is satisfied.

18. Am I satisfied there has been no undue delay? The issue concerning Mr Lusibaea's continued sitting as a Member of Parliament arose following the Speakers decision in mid-January. The claim was filed at the beginning of March. I am satisfied there has been no undue delay.

19. I am also satisfied there is no other remedy that resolves the matter fully and directly. It was suggested the case before the Court of Appeal would resolve the matter. It was not explained how. The Court of Appeal was concerned with a rather narrow point on the question of sentence. A decision adverse to Mr Lusibaea in the Court of Appeal would only have made Mr Wale's case stronger. I do not see how the decision now published resolves the matter fully and directly. It does not affect the interpretation of the provisions of section 51 by the Speaker. It was also suggested that another judicial review case would resolve the matter. This is, apparently, a claim in judicial review proceedings to challenge Mr Lusibaea's criminal conviction. I was given no detail of the case so I cannot say whether it would resolve the matter directly or fully.

20. As I am satisfied about the matters in rule 15.3.18, insofar as the claim by Mr Wale for a review of the Speaker's decision is concerned, I should now fix a hearing date. I will hear from counsel before I do so. I should also make yet another order as to the amendment of the claim. Again I will hear from counsel on that question as well. As I am not satisfied in connection with the claims involving the Minister and the Parole Board they should be discharged as parties in this case. I presume the Attorney General would still like to be heard, we can discuss in what capacity in due course. The Speaker obviously continues to be a party. As for Mr Lusibaea, he will be an interested party in the proceedings and I give leave, if any is necessary, for him to be heard and a direction that he continue to be served with any papers or process in this case.

21. Costs shall be in the cause.

Chetwynd J

---

^[1] Solomon Islands Courts (Civil Procedure) Rules 2007
^[2] Rule 15.3.20
^[3] R v. Lord Saville of Newdigate, Right Honourable Sir Edward Somers, Right Honourable Justice Hoyt (The Members of Tribunal Sitting as Bloody Sunday Inquiry) Ex parte B, O, U and V [1999] EWHC Admin 103 (4^th February , 1999)
^[4] See Rule 15.3.11
^[5] See Rule 15.11.11
^[6] Rule 15.11.13
^[7] Kenilorea v. Attorney General [1983] SILR 61 and Ulufa’alu v. AG and others CA-CAC 015 of 2001