Peoples Progressive Party v Speaker of National Parliament [2015] SBHC 122; HCSI-CC 547 of 2015 (30 October 2015)

IN THE HIGH COURT
OF SOLOMON ISLANDS
(Civil Jurisdiction)
Civil Case No. 547 of 2015

People's Progressive Party
First Claimants

And

People's Alliance Party
Second Claimants

And

United Democratic Party
Third Claimants

And

Kadere Party
Fourth Claimants

-V-

Speaker of National Parliament
First Respondent

And

Jeremiah Manele MP (Representing himself and other Members of Parliament of the Opposition Coalition of Political Parties)
Second Respondent

And

Dr. Derek Sikua MP (Representing himself and other Members of Parliament who purportedly resigned from United Democratic Party)
Third Respondent

AND

Douglas Ete MP (Representing himself and other Members of Parliament who purportedly resigned from Kadere Party)
Fourth Respondent

And

Registrar of Political Parties
Fifth Respondent

And

The Attorney-General
Sixth Respondent

Hearing : 29th October 2015
Judgment : 30th October 2015

Charles Ashley, Secretary of the People's Progressive Party (1st Claimants).
Sir Nathaniel Waena, President of the People's Alliance Party (2nd Claimants).
Barnabus Henson, Secretary of the United Democratic Party (Third Claimants)
Peter Boyers, Vice President of the Kadere Party (Fourth Claimants).
S. Banuve and J. Muria Jnr. for the Speaker of Parliament and Attorney-General (1st Respondent and 6th Respondents )
M. Pitakaka for the 2nd Respondent.
G. Suri for the 3rd and 4th Respondents.
No appearance by the Registrar of Political Parties.

Palmer CJ:

On 26th October 2015 the People's Progressive Party, People's Alliance Party, United Democratic Party and the Kadere Party ("the Claimants") filed a claim for judicial review under Rule 15.3 of the Solomon Islands (Civil Procedure) Rules 2007 for orders inter alia, for the Court to review the decision of the Speaker of Parliament (First Respondent) to accept a motion of no confidence given by the second Respondent and to prohibit the Speaker of Parliament from allowing the motion of no confidence that has been submitted to be debated on the floor of Parliament on Friday 30 October 2015, that is later this morning.

At the same time they have also sought to apply for three interim orders as follows:

(1) An interim declaration that any Coalition Government of the sovereign state of Solomon Islands formed pursuant to section 53 of the Political Parties Act 2014 ("PPI Act") is a Government formed by the political parties that make up such coalition and not the individual Members of Parliament of those political parties.
(2) An interim declaration that unless a political party or parties of a Coalition Government withdraws from, revokes or rescinds the Coalition Agreement pursuant to section 54 of the PPI Act no individual Member of Parliament can submit any Motion of No Confidence on the floor of the National Parliament.
(3) An interim order prohibiting the First Respondent from presiding on Friday 30th October 2015 over the Motion of No Confidence in the Prime Minister of Solomon Islands delivered by the Second Respondent to the First Respondent on or about Wednesday 21st October 2015.

It appears as submitted by learned Counsel Mr. Pitakaka that the orders for interim declarations and injunctions have been made under Rule 15.3.5[1] of the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Rules"). That rule provides that the court may grant "...an interim declaration or injunction if it considers that it would be just and convenient to do so having regard to:

(1) the nature of the matters in which relief may be granted by way of judicial review; and
(2) the nature of the persons and bodies against whom relief may be granted by such an order; and
(3) all the circumstances of the case."

Applications for strike out.

The first and sixth Respondents, second Respondents, third and fourth Respondents have all filed applications to have the claim struck out on the following grounds:

(1) That the Claimants do not have locus standi;
(2) That the claim is frivolous and vexatious;
(3) That no reasonable cause of action is disclosed; and
(4) That it is an abuse of the process of the Court.

1. Locus Standi of the Applicants/Claimants.

In any application for interim injunctions and interlocutory injunctions there must be serious or triable issues before the court. It necessarily follows that from the outset the applicants must have locus to appear before the court, that is, they have sufficient interest in the dispute or claim and those rights are being breached or likely to be breached if the interim injunctions sought are not granted.

This raises questions about the rights or interest the Applicants have, which are being breached or likely to be breached if the notice of motion of no confidence that has been submitted is debated today.

In relation to the first Claimants, I accept submissions of learned Counsels, Mr. Banuve, Mr. Suri and Mr. Pitakaka that it has not been established it has sufficient interest to the purported dispute in this claim. It is neither a party to the Coalition Agreement that comprises the current ruling Government nor has any elected member in Parliament and therefore has not shown that it has any rights or interest which have been or likely to be breached. The connection is simply not there.

I am unable to so find in relation to the second, third and fourth applicants for they are parties to a coalition agreement that forms the current ruling Democratic Coalition for Change Government ("the DCCG") and so naturally have interest on any notice of motion of no confidence that may be given.

This raises the question whether this interest is sufficient to confer right to an interim declaration or injunction in so far as a notice of motion of no confidence has been submitted and accepted to be debated today.

The right to lodge a motion of no confidence.

The right to give notice of and to move a motion of no confidence under the current legislative provisions lies exclusively with a Member of Parliament[2]. That is an unfettered right of any Member of Parliament under section 34 of the Constitution. Any suggestion otherwise would have no basis or support in law and as correctly pointed out by learned Counsel Mr. Suri, any law that may have that effect is unconstitutional.

Herein lies the flaw in the arguments of the applicants, that they can ask this court to prevent a motion of no confidence being debated in Parliament by virtue of their interest as parties in a coalition agreement. Their rights however must necessarily be confined to the coalition agreement and membership of their parties, for the problem that they had been faced with is necessarily confined to the issue of membership, discipline and control of conduct and behavior their members in Parliament. That is amply provided for under Schedule 1 (Minimum Rules for the Constitution and Rules of Political Parties) – paragraphs 8, 9 and 10. They have members who have acted it seems contrary to their obligations and terms of membership of their parties and which at the time the notice of motion of no confidence was submitted had affected or likely to affect the numerical strength of the parties in the coalition agreement. Naturally, the Applicants/Claimants were concerned for it would appear they had lost the support of some of their parliamentary members and therefore the issue of the right to continue to form the government was in jeopardy.

That right to form a coalition agreement and that right to discipline its wayward members however are separate and distinct from the process of lodgement of a notice of motion of no confidence. The Applicants cannot dictate or interfere with that Constitutional right of a member save by process of law.

I accept and adopt submissions of learned Counsel Mr. Suri, as set out in paragraph 1.1 of his written submissions with emphasis on sub-paragraph 4 of his submissions, that sections 53 and 54 of the of the Political Parties Integrity Act 2014, relied upon by the Applicants, do not vest in political parties any right to stop an individual MP exercising his/her right to move a motion for resolution of no confidence in the Prime Minister.

Those sections are provisions for creating and regulating coalition between political parties. They do not contain any statutory indication that they place restraint on an MP exercising his/her right under section 34 of the Constitution to move a motion of no confidence in a Prime Minister and any suggestions that they may have that effect would to that extent, be unconstitutional.

A fortiori, the application to intervene cannot be sustained when the notice of motion of no confidence had been filed by the Leader of Official Opposition, who is not a signatory or party to the Coalition Agreement made by the 2nd, 3rd and 4th Claimants/Applicants and therefore any suggestions that they can rely upon sections 53 and 54 of the Political Parties Integrity Act 2014 as giving them the right to challenge the validity of that notice cannot be supported in law.

There are other grounds relied on too which for want of time I will summarise. The application for interim orders is also defective on the grounds of non-justiciability of actions and decisions of the Speaker within his jurisdiction. This ground touches on the fundamental doctrines of separation of powers of the three arms of Government under our Constitutional Democracy. In as much the other two arms, the Executive and the Legislature will not interfere with the work of the courts save by legislative and Constitutional reforms, the courts too will not interfere and have no power to enquire into the validity of Parliament's internal proceedings save by process of law including breach of the Constitution[3]. In so far as the Constitution is concerned no breach has been pleaded in the claim.

I also adopt submissions of learned Counsels Mr. Banuve and Mr. Pitakaka on this issue, that Parliament has exclusive right to control its own internal proceedings and is therefore not subject to interference or control by the courts in that regard. No jurisdictional error of law or breach of the Constitution has been established which would warrant the supervisory powers of this court to be invoked.

I am also satisfied that the application for interim orders is defective in terms of the application of section 18 of the Crown Proceedings Act which expressly prohibits this court from imposing injunctions save for relief brought for breach of a constitutional provision. The application for an injunction against the Speaker of Parliament in the circumstances of this case is improper and also amounts to a frivolous and vexatious claim and should also be dismissed under that ground.

I also accept submissions of learned Counsels for the Respondents that the application amounts to an abuse of process on the same grounds already touched on in this judgement.

For the reasons enumerated in this judgement I am not only satisfied the application for interim orders must be dismissed but also the claim filed cannot be sustained in law and must be struck out as frivolous and vexatious, showing no reasonable cause of action and an abuse of the process of the courts, with costs.

On the issue of costs, the respondents have asked for their costs on indemnity basis. While this is not normally asked for and granted, I am also satisfied in the circumstances of this case, that this is one of those instances when such costs should be granted in favour of the first and sixth Respondents, second Respondent, and third and fourth Respondents, as against all the applicants/claimants.

The Court.

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• ^[1] “A claim for an interim declaration or injunction may be made in proceedings for judicial review and the court may grant an interim declaration or injunction if it considers that it would be just and convenient to do so having regard to:
  • (a) the nature of the matters in which relief may be granted by way of judicial review; and
  • (b) the nature of the persons and bodies against whom relief may be granted by such an order; and
  • (c) all the circumstances of the case.”
  • (c)

^[2] Dr. Derek Sikua v. Sir Allan Kemakeza and the Attorney-General HCSI-CC401/2012, 17 April 2014 at page 4.
^[3] Speaker v. Philip [1991] SBCA 1 (CAC 5 of 1990)