Panga v Muala [2014] SBHC 42; HCSI-CC 95 of 2014 (15 May 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Civil Case No. 95 of 2014.

BETWEEN:

HON. STEPHEN PANGA
Claimant

AND:

HON. ELIJAH DORO MUALA
(Supervision Minister for Provincial Government
and Institutional Strengthening).
First Defendant

AND:

HON. ABEL ARAMBOLA
(Speaker of Guadalcanal Provincial Assembly).
Second Defendant

AND:

ATTORNEY-GENERAL
Third Defendant

Date of Hearing: 26th April 2014.
Date of Decision: 15th May 2014.

Mr G .Suri for the Claimant
Mrs N. Tongarutu for the Second Defendant
Mr J. Muria (Jnr) for the First and Third Defendants.

DECISION.

Faukona J: A claim for judicial review was filed on 27th March 2014; to review the decision by the Speaker of Guadalcanal Provincial Assembly calling and convening a full Assembly Meeting on 26th March 2014, and the applicability of laws and authority that made such calling possible.

2. Being as it may forms the legal basis for the application for interim injunction orders which was perfected by this Court on 28th March 2014.

3. Rule 7.2 specifically stated that a party may apply for interlocutory orders at any stage before, during or after proceedings have been started. In conjunction to that, rule 15.3.5 states that a claim for injunction may be made in proceedings for judicial review and the Court may grant if it considers it would be just and convenient to do so.

4. In respond to the injunctive orders made, the second Defendant filed an application on 31st March 2014, to set aside those orders. Since then no such other further papers were filed in terms of defence.
5. In reply to application to set aside, the Claimant then filed an application on 2nd April 2014, for determination on point of law. I acknowledge, I am urged judicially to adjudicate on two cross applications in the inter parte proceedings.

6. To start off, it is agreed in general, that this Court proceedings is an inter-parte hearing. What may appear as a simple argument revolving around the reasons for granting of ex-parte orders, now elevated to a stage where Court has to deal with full fletched arguable case on point of law inclusive? As I am legally urged to do, so shall it be done? Ruling will canvass two concurrent applications.

Facts:

7. On 17th March 2014, a notice of motion of no confidence in the Claimant by the mover Hon. Rollen Seleso was received by the second Defendant. An acceptance letter was issued to that effect on 18th March 2014.

8. On 20th March 2014 there was a conference between the Claimant and the second Defendant regarding statement of Government business paper for week commencing 24th and ending 28th March 2014. The issue of notice of motion and non-gazettal of standing Orders 2013 and Financial Management Orders 2008 was not on the agenda.

9. On Sunday 23rd March 2014, three (3) of the Claimants Ministers resigned. Whether that jeopardised the democratic principle of majority rule of the Claimant's Government that is a non-issue.

10. On 24th March 2014, a notice for Assembly Meeting was issued to all Guadalcanal Provincial Assembly Members. The notice disclosed a number of government business papers including a motion of no confidence for the week's meeting.

11. On the same date 24th March 2014, the Claimant wrote to the second Defendant informing him that the 2013 Standing Orders and 2008 Financial Management Ordinance had not been gazetted. He even suggested that it would be unlawful for the Assembly to proceed with the meetings. Similarly a letter addressed to the Attorney-General of equal tone was written by the legal adviser Mr. Tebolo.

12. On 24th March 2014, the second Defendant sought advice from the Attorney-General. A reply to that effect is taken as a reply to Mr Tebolo's letter as well. The Attorney General advised that the second Defendant complied with 2013 Standing Orders as guiding authority for the Assembly Meeting.

13. On 25th March 2014, the Claimant causes to reply the Attorney-General's advice and argued it contravened Section 61 of Interpretation and General Provisions Act which take precedent over Standing Order? A copy of that letter was received by the second Defendant.

14. In the midst of the controversial situation, an extra-ordinary gazette was published as a supplement to the gazette pursuant to legal notice No. 77 to 29 and dated 24th March 2014. The extraordinary gazette was known as Guadalcanal, Provincial /Assembly (Special Measures) Order 2014 and was issued and endorsed by Hon. Elijah Doro Muala, supervisory Minister for Provincial Government and Institutional Strengthening.

15. The content of the Special Measures Order is significant in its standing, applicability and implementation. Order 2 authorized the Speaker (Second Defendant) to convene the Full Assembly Meeting in accordance with his advice. Order 3, the purpose of convening the meeting was to debate and vote on the motion of no confidence received by the speaker on 17th March 2014.

17. On 26th March 2014, the day the motion of no confidence ought be moved, a petition to boycott the Assembly Meeting signed by all Ministers (8 plus the Claimant) and served. Despite the protest the meeting was conducted and twelve Provincial MPS attended, including the mover, which formed a quorum. At that meeting the motion of no confidence was moved, debated and voted upon. The Claimant as Premier of Guadalcanal Province was voted out by majority.

Determination on point of law:

18. There is argument that the Claimant's application for determination on point of law is premature and misconceived. Mr Muria (Jnr) submits that argument on preliminary issues is based on Rule 12.11 which basically deals with trial under category B claim. The proceeding on foot in this case is a claim for judicial review which deals with points of law and not facts.

19. Mr Suri in response says this case is an urgent matter. The interim injunctive orders made prohibit members of the Guadalcanal Provincial Executive and Assembly from exercising their powers. Whilst the Provincial Assembly ceased to function interimly, the Court has to decide on the legal issues so that the Province will function again serving its people.

20. Technically Mr Muria (Jnr's) argument upholds some legal validity. However, the point which has one common denominator is the acknowledgement that the effect of the interim injunctive orders carries full repercussion on the entire function of the Provincial Executive and Assembly. And there is urgent need of adjudication and judicial determination.

21. I have perused Rules 12.11 and 12.12, and what I can able to glean is the view expressed by Mr Suri; if the legal issues are resolved the proceedings will be resolved without trial. In fact, they are implants of Rule 12.11. That cannot be said as equal to the view expressed by Mr Muria that proceedings in judicial review confine to points of law and not facts. In a judicial review claim the Court is called up to review the actions or omissions done by inferior Court, tribunal or any person performing public duties in exercise of their statutory functions, and generally amenable to judicial review.

22. The most significant point I noted is that the nature of two applications are overwhelmed by legal issues. It demonstrated amicably that grounds, upon which the interim injunctive orders were granted, were nothing less, but points of law and procedures. Even if a simple application for setting aside is heard alone, the argument and issues obviously will prompt points of law. I feel to give justice to the case I will consider all arguments which in my view contain points of law in both applications.

Facts in dispute:

23. There are certain facts raised which in my view contain less effect to the major arguments contain in points of law. The issue of self-contradictory by the second defendant related to whether the Claimant and the second Defendant discussed the non-gazettal of 2013 Standing Orders and Financial Management Ordinance 2008 in their prior meeting on 20th March 2014. That is a non-issue. To what extent does the validity of such argument be taken to consideration? Issues of law concern power, authority, processes, validity and enforcement. Such factual argument is seen by me as redundant issue.

24. On the point as to when the boycott petition was served on the second Defendant is a fluke on the fact. The Claimant argues that the petition was served on the evening of 25th march 2014. How could it be possible for the petition which was signed by eight ministers and the Claimant on 26th March 2014 served on the evening of a previous day before it was actually written or signed? How could it be, it is absolutely out of normal human logic. As I have said such petty factual arguments should not have any room to entertain.

Political Wrangling:

25. The political cloud that hanged over Guadalcanal Provincial Government was introduced into the avenue by the Claimant's legal adviser. It concerned the non-gazettal of 2013 Standing Orders. Perceived from the surrounding circumstances the issue was introduced not so as to prompt a solution but a stand point to circumvent the full Provincial Assembly Meeting set down for the week commencing 24th March 2014. The Claimant's letter of 24th March 2014 was a result of the legal advice. The tone of his letter was probably to seek further legal advice. Apart from that he suggested should the Provincial Assembly proceed as planned would be unlawful. So he resort to two suggestions as a possible solutions; either to revert back to 2013 Standing Orders or arranged for an extra ordinary gazette be issued.

26. It came to pass that option 2 was favoured than the first. Hence, an ordinary extra gazette as legal Notice No. 27 to 29 dated 24th March 2014 was issued by the supervisory Minister of Provincial Government and Institutional Strengthening. The legal issues that surround the issuant of the Special Measure Order, the sole content of the extra-ordinary gazette will be discussed later.

27. For the moment, it is incumbent of the legal adviser to introduce an assumptive myth into the political arena. The Claimant's response was an act of shifting responsibility upon the second Defendant to advise him whether the 2013 Standing Orders were gazetted of which he had never received an answer. But was the second Defendant statutorily required to advice the Premier of such issue? It would be bias to rely on the Speaker for such, when a legal adviser was within an arm's reach.

28. It is a non-issue that the Claimant, the second Defendant and the Legal Adviser had been well versed that there existed a 2013 Standing Orders. There is evidence that there could have been a number of Assembly meetings conducted under these standing orders. Strangely, as it was, none of those leaders bother to inquire and where possible obtain a copy of the 2013 gazette, if there was, that contain the standing orders. After a year, sitting in darkness the first ray of light casts its beams across arousing an unethical assumption those 2013 Standing Orders were not gazetted. That assumption became a pillar that marshals argument which led to the political impasse, now find its path into this Court. I must impart at this juncture, the current political leaders of Guadalcanal Province had failed to acknowledge that they owe allegiance to the people of Guadalcanal Province. What had happened could not have happened if leaders acknowledged their responsibility and obligations. You cannot function without tangible documents on file that provides guides and directs a way forward. No particular person is to be blamed. I must say the two leaders of the Province and the legal Advisors are directly responsible for the political situation encountered. Could have been avoided if someone takes time to ensure copies of subsidiary legislations, orders and directions were kept on file for ease of reference.

29. Abruptly, it reflects into a new dimension when everyone realized that the 2013 Standing Orders were gazetted. Despite that, the trail that left behind was a disaster caused by human unethical assumptions rooted in irresponsibility. That brings us to the crevices of this case. The question, which standing orders provide for the conduct of the Assembly meeting, convened on 26th March 2014? It may seem, at that time, there were dualistic Standing Orders. Which should prevail is an issue I will deal with in this decision.

Special Measure Order 2014:

30. This order was styled as "Special Measure Order 2014", was issued by the supervising Minister for Provincial Government, and was published in an extraordinary gazette dated 24th March 2014. The rationale for the order was for the second Defendant to convene a Full Assembly meeting for the purpose of debating and voting on the motion of no confidence. The Order was received by the second Defendant at 1 pm on 25th march 2014.

31. The Order crowned with a status necessary to defuse the controversy in relation to whether the Standing Orders of 2013 had come into effect. Based on the Order a notice was issued for full Assembly meeting to convene on 26th March 2014 to debate and vote on the motion of no confidence, a shift from 28th March 2014.

32. The argument that the orders were not necessary because there were no unforeseen or special circumstances arose, is perhaps an approach departed from the real facts that surround the situation. The major effect of the orders was a shift from the meeting of 28th March 2014, to 24th March 2014. The reasons as I would draw are that three of Claimant's Ministers resigned on 23rd March 2014. Follow on, the Claimant then embarked on an assumption that 2013 Standing Orders were not gazetted. He even stated that it would be unlawful for the Assembly to proceed as planned. Simply put, there should not be any full Assembly Meeting for that week as planned. Most significant at that point in time the Claimant no longer commands a majority government to rule and carry out government business. A fact not rebutted. Further, the Claimant even suggested in his letter that a possible solution would be to arrange for an extra ordinary gazette of the Order. Are those facts fall below the level of special circumstances? I don't think so. It clearly demonstrated a situation where the order has to be issued as necessary in an attempt to resolve the political impasse.

34. Mr Suri embarked on launching a massive argument featuring legal issues as well as points of law. Most of which were not rebutted, hence become issues of law which are not contested therefore established and accepted.

35. Perhaps the only issue contended by Mrs Tongarutu is the application of Section 61 (1) (b) of Interpretation and General Provisions Act (Cap 85) that the Special Measure Act 2014 became effective on the date of its publication which was 24th March 2014. Therefore, the meeting held on 26th March 2014 was valid.

36. In furtherance Mr. Muria (Jnr)'s view is that the Attorney-General conceded the Supervisory Minister does not possess the power to make the special Measure order. A view that contravenes the view expressed by the same Counsel on behalf of the Minister who is the first Defendant.

37. In examining Section 61 of Interpretation and General Provision, the appropriate issue relevant to this case is that any subsidiary legislation including delegation of powers or duties has to be published in the national gazette. This is one issue among others which Mr Suri argues. The supervisory Minister Hon. Elijah Doro Muala lacks delegated power and duties on him to issue such Special Measure Orders. Mr Muria (Jnr) has agreed on that line of argument.

38. The submission advanced by Mrs Tongarutu is one fact of law, however, the gist of argument here is that, if the supervising Minister was not delegated any power pursuant to S.47 (1) of the Provincial Government Act, then the issuant of the Special Measures Order was done in excess of the discretion invested in him. He was in fact exercising and usurping power that was vested on the substantive Minister. In this case there is evidence that no delegation of power was ever conferred on the supervisory Minister, hence render the SMO ineffective. In the circumstances, this reason alone is sufficient to determine the status of the SMO, hence not necessary to consider other issues in law advanced by Mr Suri.

39. At the time when the second Defendant acted upon directions of SMO 2014, the 2013 Standing Orders were still alive and in operative. The assumption that it was not effective because of non-gazettal was a reliance on a myth excuse for ignorant of the law. The leaders of Guadalcanal Province including the legal adviser had ignored the obvious and instead claim assumption without providing evidence of the true status of the 2013 Orders. Subsequently it was proved wrong, the 2013 Standing Orders were in fact gazetted on 23rd May 2013. I have already stressed by questioning the duties of the leaders. Their failure to obtain a true status of the orders tantamount to the political situation they themselves now encountered.

40. With a similar effect, is the proponent that ignorant of the law is no excuse and must not be accepted? Avoiding responsibilities and throwing on another is unacceptable. No one is particularly to be blamed. Perhaps, in my opinion, the legal advisor carries more weight on his shoulders. As a legal person, he ought to check the legality of the 2013 Orders or any subsidiary legislation for that matter. It reflects negativity to wield argument on assumptions. Whilst the privileges are available with sufficient period since the inception and adaption of the orders; check could have been done a year ago to avoid the current political impasse.

41. One reason that alluded to the validity of the 2013 Standing Orders, that it was never revoked by any order published in the gazette. Similarly, there was no order for substitution or subsidising the 2013 orders for 2014 SMO. As such in law, the 2013 Standing Order is still and in full operative. It would appear when the second Defendant acted upon the SMO, there were two concurrent Standing Orders at display. The question is which one will prevail over the other? By law, no two laws can validly operate concurrently. One must prevail over the other.

42. In this case, there is no doubt the Special Measure order issued was defective in law. The supervisory Minister for Provincial Government had never been authorized by way of delegation of power conferred on him. Therefore, the 2013 Special Measure Order was invalid and null and void. Even in any event that reliance is placed on Special Measure Orders by the first Defendant it is of no consequential effect. What now left is a valid 2013 Standing Orders?

Contravention of rules of natural justice:

43. There is argument the Claimant was not informed of the meeting on 26th March 2014 and hence not given opportunity to speak in the debate and make replies to the mover of the motion.

44. When the second Defendant shifted the date for debating and voting on the motion of no confidence from 28th March to 26th March 2014, there was no objection by the mover of the motion, nor was there evidence to suggest otherwise. The motion was he's, he was the boss. If for some reasons the date was shifted from the prearrange date his consent must be sought. There was nothing coming from him and he was happy and eventually tabled his motion on 24th March 2014.

45. The argument by the Claimant that rules of natural justice was not accorded him, is a self- determined contradiction. He and his eight Ministers had filed a petition and served upon the second Defendant that they would boycott any assembly meeting for that week. The Claimant had given his reason for being absent. And if he does so he is personally responsible for his own absenteeism. He cannot peep around the back and said he was not given the privilege to attend. He had chosen to do what he did. It would be demeaning on him as a leader to play childish politics in the eyes of adults.

46. I must therefore conclude to the point that full Assembly Meeting on 26th March 2014 was conducted in accordance with 2013 Standing Orders. Whatever processes the Guadalcanal Province may wish to pursue to conclusion must be conducted within the bounds of those orders.

Orders:

1. Interim injunctive orders granted on 28th March 2014, be set aside.

2. All consequential orders sought in the application for determination on point of law dismissed.

3. The Guadalcanal Provincial Assembly to accomplish its uncompleted processes.

4. Cost is paid to the Defendants by the Claimant.

The Court.