Sikua v Kemakeza [2014] SBHC 92; HCSI-CC 401 of 2012 (17 April 2014)

HIGH COURT OF SOLOMON ISLANDS
(PAMER, CJ.)

Civil Case No. 401 of 2012

DR DERICK SIKUA (LEADER OF OPPOSITION

v

SIR ALLAN KEMAKEZA (SPEAKER OF THE NATIONAL PARLIAMENT AND THE ATTORNEY-GENERAL

Date of Hearing: 18 June 2013
Date of Judgment: 17 April 2014

Mr. G. Suri for the Claimant
Mr. J. Sullivan QC and E. Soma for the First Defendant
Mr. S. Banuve and J. Muria (Jnr.) for the Second Defendant

JUDGMENT

PALMER CJ:

The Claimant, Dr. Derek Sikua, who is the Leader of Opposition, seeks a number of relief in his claim against the first Defendant, who is the Speaker of Parliament, and second Defendant, the Attorney-General as follows:

1. A declaration that the setting down of the Claimant's Motion of No Confidence for debate in the National Parliament on Friday 26 October 2012 contravened Standing Orders 14(3) and 15(3) insofar as the Business Committee (or House Committee) did not determine and set down the Motion for debate on the said Friday.
   
2. A declaration that, insofar as the Claimant had not moved or introduced in Parliament the Motion of No Confidence for debate by Members of Parliament pursuant to Standing Order 29, it was wrong in law for the First Defendant to put to the Members of National Parliament for voting the question as to whether the Parliament had confidence in the Second Defendant.
   
3. A declaration that, insofar as the Claimant had not moved or introduced in Parliament the Motion of No Confidence for debate by Members of Parliament pursuant to Standing Order 29, the action of the First Defendant in putting the question and by conducting or causing voting by Members of Parliament on the said Motion tantamount to violation of the constitutional right of the Claimant enshrined in section 34 of the Constitution.
   
4. A declaration that the First Defendant interpreted or applied Standing Order 38 wrongly (for purposes of putting to vote the Motion or question as to whether the Parliament had confidence in the Second Defendant) insofar as the extent or effect of his interpretation or application of Standing Order 38 suppressed lawful operation of Standing Orders 14(3), 15(3), 29 and 31(2).
   
5. A declaration that neither the Speaker of National Parliament nor the Business Committee (House Committee) has the unilateral right to set down on an Order Paper a Motion given under section 34 of the Constitution without the consent of a mover of such Motion.
   

The Claimant seeks consequential orders on an affirmative response of to the declarations sought that the voting on the motion on Friday 26 October 2012 was null and void and that his motion of no confidence was still valid.

The brief facts

The Claimant had lodged a notice for a motion of no confidence in the Prime Minister, Gordon Darcy Lilo on 18th October 2012 to be debated in Parliament pursuant to section 34 of the Constitution. On the night of Thursday 25th October 2012 at about 10.00 pm, the Claimant met the first Defendant, the Speaker of Parliament, ("Speaker") and requested for the motion of no confidence not to be set down on the Order Paper for Friday 26th October 2012. The Deputy Leader of Opposition, Mathew Wale also informed the Clerk to Parliament later that night not to place the motion on the Order Paper for Friday 26th October 2012.

On Friday 26th October 2012, the motion was placed on the Order Paper and when Parliament convened, the Speaker called upon the Claimant to move the motion. The Claimant however was absent and so the Speaker adjourned the matter to 2.00 pm and required the Claimant to attend.

At 2.00 pm, when the Claimant again was absent the Speaker of Parliament ruled that the motion be debated in the absence of the mover. Other members on the Opposition raised objections but were overruled by the Speaker who ordered the debate to proceed. The question was subsequently put for voting, which resulted in the motion being defeated.

Preliminary issue of law on jurisdiction

Counsel, Mr. Sullivan QC for the Speaker raises a preliminary question on jurisdiction, which he submits prevents the court from taking cognizance of the application from the outset. If the court rules in his client's favour the matter should be permanently stayed.

The question

Mr. Sullivan submits what the Claimant in effect asks is for the Court to inquire into the proceedings of the National Parliament. He says the Court has no jurisdiction to make any such inquiry into the proceedings of the National Parliament, save and except where its jurisdiction is enlivened by s.83 of the Constitution.

The issues raised

In order to deal with this question, a number of issues arise. First is whether what happened that day falls within the ambit of "internal proceedings of Parliament". In order to determine that question it is necessary even at this juncture to consider in some detail the matters that have been raised in the substantive application, for they are directly connected to the question of jurisdiction. If this court finds that the proceedings amounted to internal proceedings of Parliament, the Court is still required to consider if the constitutional rights of the person involved have been interfered with by virtue of the actions of the Speaker and what transpired subsequently that day. In so doing the ultimate question to be answered is whether the Court can inquire into what happened that day[1]. I do not think it is in dispute where the jurisdiction of this court lies but to get there will entail delving into some depth on some of the issues that have been raised in the main application.

The argument for the Speaker

Mr. Sullivan QC submits that the case of Philip v. Speaker of National Parliament (ibid) can be distinguished on the basis that the mover of the Motion of No Confidence, the Claimant, was not being denied his right but contrary to the situation in that case, having accepted the motion as a valid motion afforded the Claimant every opportunity to move the motion. The problem was caused by the Claimant deliberately absenting himself from Parliament whereupon the Speaker merely introduced the motion of no confidence to the House.

The issues

The first issue which arises for determination from the accepted facts is whether the Claimant was entitled to withdraw his motion in the manner described and whether the Clerk and Speaker should have acted accordingly. By including the notice of motion in the Order Paper for Friday 26 October 2012, did they make a mistake?

The second related issue, (assuming that the decision to include the motion on the Order Paper for that day was proper), is whether the decision to introduce the motion for debate by the Speaker was proper in the circumstances.

The position of the Claimant

Mr. Suri for the Claimant submits that the Speaker erred in not withdrawing the notice of motion of no confidence when instructed by the Claimant and further erred in allowing the motion to be debated in Parliament in the absence of the mover. The effect of both errors was to deprive his client of his constitutional right to "invoke fundamental constitutional machinery" [2]provided by the Constitution under section 34(2) and which gives rise to the question of breach of his constitutional right. The effect of these breaches would enliven his right to come to court under section 83 of the Constitution for relief.

The right to withdraw a notice of motion

Under what circumstances can a member withdraw a notice of motion, especially as applied to the facts of this case? Standing Order 31 ("SO31")[3], provides some guidance as to how this can be done.

Paragraph SO31(2) in particular describes the situation under which a notice of motion may be withdrawn from the Notice Paper before the motion is moved.

"A notice of motion or an amendment may be withdrawn from the Notice Paper at any time before it is moved, if the Member in whose name the motion or amendment stands gives instructions to that effect to the Clerk."

There are two possible views or positions; one, that it can be withdrawn only before the notice of motion is formally placed in the Order Paper. Once it is placed in the Order Paper for the day, it can only be withdrawn by leave of Parliament.

The other view, which I prefer and adopt, is that it can be withdrawn from the Notice Paper even if it had been included in the Order Paper, but before it is moved by the Member in Parliament. This construction is more consistent with the wording used in paragraph SO31(2), that a notice of motion can be withdrawn before it is moved and so, even if it had been included in the Order Paper, if the Member informs the Clerk, (and Speaker), of his intention to withdraw the motion, the Clerk and Speaker are obliged to have it withdrawn.

It would seem that in such circumstances, when the motion is reached in the Order Paper, there is no obligation on the part of the Member to move the motion and it disappears from the Order Paper[4].

This view is also consistent with the wording of paragraph SO31(1), which provides,

"A motion or an amendment may be withdrawn at the request of the mover by leave of Parliament or the Committee before the question is fully put thereon if there is no dissenting voice. A motion or amendment which has been so withdrawn may be proposed again if, in the case of a motion, notice required by these Orders is given."

Paragraph SO31(1) in my view describes a slightly different scenario where now the motion can only be withdrawn by leave of Parliament and sets out the parameters in which this provision will apply.

In the first scenario described in paragraph SO31(2), it is not necessary to require leave of Parliament for the motion yet to be introduced into Parliament (before it is moved) remains the exclusive property of the member. In the second scenario, described in paragraph SO31(1), after the motion has been moved and the question proposed to Parliament, the motion belongs to Parliament and can only be withdrawn by leave[5].

Application of the facts

I am satisfied in the circumstances of this case, the Speaker erred in not withdrawing the notice of motion in the Order Paper for Friday 26 October 2012. I will deal with the question of constitutional breach later.

Introducing the motion or moving a motion?

The next related issue which arises, assuming no mistake was made in having the motion included in the Order Paper and the decision of the Clerk and Speaker valid, is whether the Speaker could introduce the motion to Parliament for debate in the absence of the mover?

Mr. Sullivan QC submits it is not necessary to have the motion of no confidence moved. The language of section 34(2) is that of "introduction" of the motion. To that extent the action of the Speaker in having it introduced into Parliament was not in breach of section 34(2) and had complied with the letter, spirit and intent of the provision.

Mr. Suri for the Claimant on the other hand contends otherwise. He submits the ordinary meaning of "introduce" also means "the act of presenting", which includes formally presenting a motion for debate in Parliament and therefore only the mover can do that and no one else.

How is a motion introduced into Parliament for debate? Is there a difference between introducing and moving a motion?

In essence, what is sought to be clarified in this question is how Parliament conducts its business. How are its proceedings in relation to motions conducted?

The actual words used in section 34(2) are "before it is introduced". In my view the phrase is a general descriptive one, describing the act of having a motion put to Parliament for its consideration or debate. To understand the context of the phrase it is necessary to have recourse to the way Parliament conducts or proceeds with its business when motions are moved. In essence, the normal way Parliament goes about its business in relation to motions is to have a proposition for consideration placed before it by a member. The member does this by moving his motion and the Speaker proposing the question in the same terms and thereby introducing the motion into Parliament for consideration/debate and decision.

This process is prescribed by Standing Orders, more specifically SO29 as follows:

" (1) A Member called upon by the Speaker to move a motion shall rise in his place and, after making such remarks as he may wish to make, shall move the motion, stating its terms.

(2) When a motion has been moved, the Speaker shall propose the question thereon to Parliament or the Committee in the same terms as the motion; debate may then take place on that question.

(3) ....

(4) When no more Members wish to speak, the Speaker shall put the question on the motion or on the motion as amended to Parliament or to the Committee for its decision."

The process of introducing the motion is normally commenced by the Speaker calling on the Member to move his motion. The Member rises in his seat and after making such remarks as he wishes to make (that is speaking on the motion) moves the motion stating its terms. Once this has been done, the Speaker proposes the question to Parliament or the Committee before debate takes place.

The act of moving the motion by the Member and the act of proposing the question to Parliament by the Speaker comprise in my view the process of introduction of the motion; the two roles being inseparable yet distinct and separate to each other. Only the Member can move the motion in this situation and only the Speaker can propose the question.

Absent Member in Parliament

This brings me to the next related issue of an absent Member in Parliament. What happens when a Member deliberately absents himself from Parliament after being required to attend? Apart from possibly holding the Member in contempt of Parliament for non-attendance, can the Speaker in such circumstances introduce the motion instead? Mr. Sullivan QC submits that this can be done according to the general tenor of section 34(2).

For the following reasons I find that the Speaker cannot introduce the motion in the absence of the Member. First, he is not a Member of Parliament and therefore cannot move the motion; only the Member of Parliament can do that. He can only propose the question to be put to Parliament once the motion has been moved. The Constitution makes clear he does not have any original vote or casting vote[6].

Secondly, the motion of no confidence against the Prime Minister is not his motion and therefore he cannot move or initiate the introduction of the motion.

Thirdly, he is the arbiter and presides[7] over any sitting in Parliament and therefore is independent. He cannot descend to the floor of Parliament to have the motion moved before putting the question to Parliament for debate. He cannot descend and then ascend, by so doing his independence and objectivity are compromised.

Mr. Sullivan QC submits that such a construction will have the effect whereby any motion of no confidence could be perpetually stood over by the mover absenting himself whenever the matter was brought on and then later could be brought on at any time without further notice. This would result in one member having power to control the proceedings of Parliament.

I do not think such scenario will necessarily arise for the Speaker in his capacity as the presiding officer of that sitting can dismiss or order that the motion be struck out for failure to have it moved in the normal way. While the Standing Orders are silent on this, it would seem that part of the responsibilities inherent in the Speaker of Parliament as presiding officer over that sitting would be to be able to order that the motion be struck out of the Order Paper. In New Zealand, the practice is that if the member is absent from the House when the motion is reached and no one else rises to move it, the motion is struck off the Order Paper.[8]

Bearing in mind the purpose of Standing Orders is to provide rules and directions for the conduct of parliamentary business and is more or less a code of practice which sets out the various procedures governing conduct of business or proceedings of Parliament and for the exercise of its powers[9], the Speaker in my view should be able to strike out a motion when a member absents himself from Parliament without notice and explanation and no one else rises to move the motion in his behalf.

The alternative argument in favour of Parliamentary process in the event it is held that the Speaker does not have power to strike out the motion from the Order Paper is simply to seek leave of Parliament to have the motion struck out of the Order Paper. The Prime Minister or any Minister for that matter may rise to seek the leave of Parliament to have the motion struck out. The argument in favour of this construction would be that if Parliament has power to grant leave to withdraw then surely it should also have power to strike out in such situation if the member is absent.

Conclusion

The effect of the errors of the Speaker in wrongly applying Standing Orders 31(1) and (2) and 29, ultimately result in denying the right of the Claimant of his constitutional right to move a motion of no confidence at a later time in the current sitting or at any subsequent meeting of Parliament. The comments of the Court of Appeal in the Speaker v. Philip[10] equally apply to this case.

"We should perhaps also add that the Standing Orders should not be regarded as infringing the Constitution when they simply provide reasonable regulation of Parliamentary business. It is where, as here, their effect may be to deny the right to invoke fundamental constitutional machinery that the question of breach of a constitution right may arise."

The application therefore in terms of the orders sought by the Applicant are refused. I note that in dealing with the preliminary issue of jurisdiction I have had to deal with some if not most of those issues raised in the substantive application of the Claimant and which having made findings it would seem that some of those issues can also be answered as follows:

1. The declaration sought in paragraph 1 of the amended claim for judicial review filed on 30 October 2012 was not dealt with in this application and judgment.
   
2. The declaration sought in paragraph 2 of the amended claim for judicial review filed on 30 October 2012 can be answered in the affirmative.
   
3. The declaration sought in paragraph 3 of the amended claim for judicial review filed on 30 October 2012 can be answered in the affirmative as well.
   
4. The declaration sought in paragraph 4 of the amended claim for judicial review filed on 30 October 2012 can be answered in the affirmative in relation to Standing Orders 29 and 31(2).
   
5. The issue raised in this declaration were addressed in detail in this judgment when the issues of withdrawal of notice of motion and withdrawal of motion, and absence of Member in Parliament were dealt with.
   
6. The first and second defendants pay the costs of the Claimant to be taxed if not agreed.
   

The Court

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^[1] Philip v. Speaker of the National Parliament [1990] SBHC 118; [1990] SILR 227 (23 November 1990), page 9.
^[2] The Speaker v. Danny Philip [1991] SBCA 1; CA-CAC 5 of 1990 (30 August 1991), page 5.
^[3] Judicial notice being taken.
^[4] Parliamentary Practice in New Zealand, Chapter 15, “Withdrawal of notices”, McGee, David, 3rd ed., Dunmore Publishing Limited, Wellington, 200
^[5] Parliamentary Practice in New Zealand, Chapter 15, “Withdrawal of motion”, McGee, David, 3rd ed., Dunmore Publishing Limited, Wellington, 2005.
^[6] Section 71(2)(a) of the Constitution.
^[7] Section 65 of the Constitution.
^[8] Parliamentary Practice in New Zealand, McGee, David, 3rd ed., Dunmore Publishing Limited, Wellington, 2005.
^[9] Parliamentary Practice in New Zealand, McGee, David, 3rd ed., Dunmore Publishing Limited, Wellington, 2005.

^[10] [1991] SBCA 1; CA-CAC 5 of 1990 (30 August 1991), page 5