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Djokovic v Attorney General [2021] SBHC 47; HCSI-CC 335 of 2020 (5 March 2021)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Djokovic v Attorney General


Citation:


Date of decision:
5 March 2021


Parties:
Robson Tana Djokovic v Attorney General


Date of hearing:
3 December 2020


Court file number(s):
335 of 2020


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Lawry; PJ


On appeal from:


Order:
A Pursuant to section 26 (1) of the Constitution of Solomon Islands 1978 the Claimant is an indigenous Solomon Islander.
B Pursuant to Section 20 (1) as read with section 20 (6) and Section 22 of the Constitution of 1978, as amended by the Constitution (Amendment) (Dual Citizenship) Act 2018 the Claimant is not a citizen of Solomon Islands.
C Pursuant to the Constitution of Solomon Islands 1978 as amended by the Constitution (Amendment) (Dual Citizenship) Act 2018 the Claimant does not continue to hold his Solomon Islands Citizenship despite also holding Australian citizenship.
D Pursuant to Sections 48 and 55(1) of the Constitution of 1978 as read with Section 7, 8 and 9 of the Electoral Act 2018, as amended, that the Claimant is not entitled to register as an elector and is therefore is not entitled to vote in any general or by-elections.


Representation:
W Rano for the Claimant
S Banuve for the Defendant


Catchwords:



Words and phrases:


Legislation cited:
Constitution 1978 Section 26 (1), 20 (1), 20 (6), Section 48 and 55 (1), Section 26, 20 (1) (a), Section 23 Subsection (1) and (2), Section 2, 25, 23 (2), 23 (1), 26, Section 55 (1), 56 (1), 56 (2), 55 (2) (3), 20 (3), 20 (2)
Constitution 1978 Chapter III
Constitution (Amendment) ( Dual Citizenship) Act 2018 Section 22, Section 5, Section 49 (1), Section 8, 8 (1)
Electoral Act2018 Section 7, 8 and 9, Section 7, 8, 8 (a) (b)
Solomon Islands Act 1978 Section 4 (1) (a)
Solomon Islands Courts (Civil Procedure) Rules 2007 15.9
British National Act, 1948 Section 32, 30 (1), Regulation 6 (1), 2
Australian Constitution Section 51 (xix)


Cases cited:
Mabo v Queensland [No 2] 1983 HCA 21, Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3, Paia v Soakai [1980 – 1981] SILR 86

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case Number 335 of 2020


BETWEEN


ROBSON DJOKOVIC
Claimant


AND:


ATTORNEY GENERAL
(Representing Solomon Islands Citizenship Commission, Registrar of Political Parties Commission and Solomon Islands Electoral Commission)
Defendant


Date of Hearing: 3 December 2020
Date of Decision: 5 March 2021


W Rano for the Claimant
S Banuve for the Defendant

Ruling

Background

  1. The Claimant was born on 10 July 1973 in Gizo in what is now known as the Western Province of Solomon Islands. In 1973 Solomon Islands was still the British Solomon Islands Protectorate. Solomon Islands became an independent country on 7 July 1978.
  2. The Claimant’s birth certificate records that he was born to parents who were both of Australian nationality, that they lived in Keala, Western Province and had married in Arawa, Papua New Guinea in 1973.
  3. The mother of the Claimant is of the Kokoa Tribe of the Katupika region of Choiseul and of the Puibangara Tribe of Senga region of Choiseul. The Claimant identifies himself as an indigenous Solomon Islander of these tribes. He owns land in perpetuity being customary tenure and as a trustee for the Kokoa tribe. He is accepted to be a member of the Koloa tribe and is recognized in custom as such by members of his tribe.
  4. In 1981 the Claimant moved to Australia to further his education and obtained naturalized Australian citizenship status in 1981. He deposes that he continued to visit Solomon Islands and says that in 1991 he surrendered his Australian passport when given a choice to surrender either his Australian or his Solomon Island passport.
  5. He further deposes that he returned to Solomon Islands as a full time resident in 1992 and was made aware that he was still recognized as an Australian citizen despite the fact that he had surrendered his Australian passport. In June 2000 the Claimant relocated his wife and children to Australia and commuted between the two countries for work, family and business commitments.
  6. The Claimant deposes that he began residing between Solomon Islands and Australia in 2009 and having misplaced his Solomon Islands passport applied for an Australian passport. He further says that he continued to frequently travel between Australia and Solomon Islands using his Australian passport and enjoyed an exemption from residency and work permit requirements until 2014.
  7. In 2015 the Claimant applied for a Solomon Islands passport but for reasons set out below needed to comply with the Australian requirements to revoke his Australian citizenship.
  8. He applied for Solomon Islands Citizenship in September 2018. Also in September 2018 he registered as a voter for the 2019 National General elections.

The Proceedings

  1. The Claimant seeks declarations by this Court, presumably pursuant to Chapter 15.9 of the Solomon Islands (Civil Procedure) Rules 2007 as follows:

The Agreed Facts

  1. The parties have agreed on the following facts:
  2. The parties have identified the following as agreed issues:
  3. Issues (iv) and (v) are problematic, worded in this way. The first makes an assumption that that citizenship is the same as status as a Solomon Islander. The second seeks to create alternatives that are not necessarily alternatives. These problems are dealt with later in this judgment.

The case for the Claimant

  1. In summary the Claimant argues that because of his blood links to his mother’s tribe and because he is recognized as being of the Koloa tribe and a customary land owner as well as an owner of land in the perpetual estate parcel number 051-014-1, he is therefore an indigenous Solomon Islander.
  2. As an indigenous Solomon Islander he says he has rights guaranteed by the Constitution that cannot be taken away by statute (the Constitution being the founding document and Supreme law of Solomon Islands). On attaining the age of 18 years he says he automatically became a Solomon Island citizen and that right cannot be taken from him.
  3. He therefore claims to remain a Solomon Islands citizen. He further claims that any legislation that removes citizenship of an indigenous Solomon Islander is inconsistent with the Constitution and therefore, to the extent of that inconsistency is void.
  4. The Claimant submits that the Constitution (Amendment)(Dual Citizenship) Act 2018 now permits him to have dual Solomon Islands/Australian citizenship as of right with no need to make application for Solomon Islands Citizen.
  5. Finally, he claims that he became a Solomon Islands citizen on turning 18 and therefore he is entitled to vote in a general election or by-election regardless of the fact that he holds Australian citizenship.

The case for the Respondent

  1. The Respondent does not argue that the Claimant is not an indigenous Solomon Islander. The Respondent says that the Claimant became a Solomon Islands citizen at Independence but he lost his Solomon Islands citizenship at the age of eighteen, having already acquired Australian citizenship.
  2. Further the Respondent says that dual citizenship only became available in Solomon Islands after the Constitution (Amendment) (Dual Citizenship) Act 2018 came into force. The Respondent argues that the Claimant had ceased to be a citizen, that he does not automatically become a citizen again on the Constitution (Amendment) (Dual Citizenship) Act 2018 coming into force, but is eligible to apply for citizenship to the Citizenship Commission using the statutory procedure.

Discussion
Indigenous Solomon Islander?

  1. The Constitution came into force on 7 July 1978. The preamble to the Constitution reads:
  2. The Claimant argues that the effect of the preamble is that the Constitution enshrines the rights and powers of the Constitution in the indigenous people of Solomon Islands such that those rights cannot be taken away. He says this must include the right to citizenship. He relies on Section 2 of the Constitution which reads:
  3. Section 20(1)(a) of the Constitution provides:
  4. If the Claimant was an indigenous Solomon Islander immediately before 7 July 1978 he would therefore be a citizen of Solomon Islands on that date. Section 26(1) of the Constitution defines “Indigenous Solomon Islander” as:
It also defines the term “British protected person” as:
There are therefore two elements, both of which must be established, to be an indigenous Solomon Islander. The first is that the person is a British protected person for the purposes of the British Nationality Act 1948. The second is the person is of a group or line indigenous to Solomon Islands.
  1. Section 32 of the British Nationality Act 1948 provides definitions for the Act including the definition for “British protected person” and “Protectorate”. They are as follows:
  2. In order to understand the definition of “British Protected Person” it is necessary understand the meaning of the term “protectorate”. Section 30(1) of the British Nationality Act 1948 provides:
The British Protectorates, Protected States and Protected Persons Order 1974 is the relevant Order in Council. Regulation 6(1) and (2) of that Order provides:
  1. The Act referred to in Regulation 6(1) is the British Nationality Act 1948 (refer Regulation 2 of the Order)
  2. Although it is common knowledge that Solomon Islands was a British Protectorate before Independence, the above references form the basis of that knowledge. The Claimant was born on 10 July 1973 in Gizo, Solomon Islands. He was therefore born in the British Solomon Islands Protectorate and accordingly immediately before Independence was a British Protected person.
  3. The Claimant argued that the Australian decisions Mabo v Queensland [No 2] 1983 HCA 21 [“Mabo No 2”] assists this Court on the issue of whether or not the Claimant is an indigenous Solomon Islander. Mabo [No 2] was concerned with the customary land rights of indigenous Australians and determined that the “membership of [an] indigenous people depends on biological descent from the indigenous people and on the mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.”
  4. The High Court of Australia was split 4 – 3 in the decision of Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 [“Love”]. Both Love and Thoms, in Love were of aboriginal descent but born outside Australia, one being a citizen of Papua New Guinea, the other a citizen of New Zealand. Both were to be deported from Australia. The High Court were asked whether Love and Thoms were aliens within the meaning of s51 (xix) of the Australian Constitution. That is a very different question from that before this Court. In Love, the Court held, by majority, that they were not aliens. The High Court however did confirm Love and Thoms were not citizens of Australia. This Court is not concerned with whether the Claimant is an alien in terms of the Australian nor the Solomon Islands Constitutions.
  5. The evidence of the Claimant, Bekeri Tavo and David Havezama all confirm that he descended biologically from the indigenous people of Choiseul and is of the Kokoa tribe of Choiseul and is recognised as being of that tribe. He was therefore both a British protected person and of a group, tribe or line indigenous to Solomon Islands. In terms of section 26 of the Constitution the Claimant is therefore an indigenous Solomon Islander and was an indigenous Solomon Islander on 7 July 1978.

Citizen of Solomon Islands

  1. Section 20(1) (a) of the Constitution is set out at paragraph 22 above. The Claimant asks that this provision be read with section 20(6) of the Constitution which provides:
  2. As the Claimant was an Indigenous Solomon Islander, he became a citizen of Solomon Islands on 7 July 1978 by virtue of section 20(1) (a) of the Constitution. He became a citizen of Solomon Islands without having to apply for citizenship. Section 20 (3) set out qualifications for persons who did not qualify under section 20 (1) (a) who may apply for citizenship. Section 20 (6) provides that those persons will receive a certificate of citizenship as soon as practicable after Independence Day. Section 20(6) is not relevant to the Claimant’s position as he did not become a citizen by virtue of section 20 (2) but by section 20 (1) (a) of the Constitution.
  3. The qualification for citizenship was discussed by this Court in Paia v Soakai [1980 – 1981] SILR 86. In Paia, Daly CJ was considering an election petition. The Respondent had been born in Solomon Islands and was of a group, line or tribe indigenous to Solomon Islands. The Court concluded that as he was both a British protected person (having been born in Solomon Islands) and of a group, line or tribe indigenous to Solomon Islands he therefore became a citizen of Solomon Islands on 7 July 1978. The Court did not need to go further to consider the effect of section 23 as the citizenship of the Respondent had not lapsed at the relevant time.
  4. Paia is important submits the Claimant as he was found to have been a citizen at the time of his being elected to Parliament, notwithstanding his holding a Tongan passport. Unfortunately, this argument does not assist the Claimant in this case because of the provisions of section 23 of the Constitution. No steps were required for the respondent in Paia to become a Solomon Island citizen because of the particular time that occurred. If he subsequently lost his citizenship, and wished to regain it, he would need to make the necessary statutory application.
  5. The Constitution specifically rejected the concept of dual nationality in section 23 of the Constitution. Subsection (1) applied to all citizens who are nationals of some other country. Subsection (2) was restricted to persons who had acquired citizenship by virtue of section 20 (2) or section 21 of the Constitutions. That means subsection (2) did not apply to those who became citizens of Solomon Islands as of right by being indigenous Solomon Islanders. However, section 23(1) provided:
  6. Section 8 (1) of the Citizenship Act which came into force on 7 July 1978 provided:
  7. The Claimant obtained citizenship of Australia when he became a naturalised Australian as he deposed in his sworn statement of 20 November 2020. He did not lose that citizenship by surrendering his passport to the authorities in Solomon Islands. That was why he was able to apply for an Australian passport and travel on that passport between 2009 and 2014.
  8. Even if he had lost his Australian citizenship in 1991 (which he did not) and remained a citizen of Solomon Islands, his actions in 2009 must had required him to regain his Australian citizenship when he obtained an Australian passport. Those actions alone would trigger section 8 of the Citizenship Act 1978, causing him to lose Solomon Islands citizenship had it not already been lost. Significantly he acknowledges that he remains an Australian citizen.
  9. The Claimant submits that section 8(1) of the Citizenship is void because of section 2 of the Constitution. He says that what the Constitution has given, Parliament cannot take away. The Constitution gave him citizenship as an indigenous Solomon Islander as set out in paragraph 30 above. This submission is misguided as the Constitution also specifically gave Parliament the power to deprive and renounce citizenship of Solomon Islands in section 25 of the Constitution. Section 25 provides:
  10. The Claimant submits that section 25 cannot apply to those who became citizens at Independence by being indigenous Solomon Islanders. He submits it can only apply to those who have received citizenship on application. The problem with this argument is that section 25 does not restrict its provisions in that way as section 23 (2) of the Constitution does. It applies to citizens of Solomon Islands who have attained the age of eighteen years.
  11. For the avoidance of doubt it is necessary to return to section 23 of the Constitution set out in paragraph 33 above. The provisions of subsection (2) are not relevant to the Claimant for the reasons set out at paragraph [33]. The Claimant was a citizen of Solomon Islands at Independence. On 7 July 1978 he was just 3 days short of his fifth birthday. In 1981 he became an Australian citizen. He attained the age of eighteen years on 10 July 1991. In terms of section 23(1) of the Constitution he lost his Solomon Islands citizenship on that day.
  12. The Claimant says he surrendered his Australian passport to the authorities in Solomon Islands in 1991. There is no evidence that he ceased to be an Australian citizen. In fact, he voluntarily asserted his rights as an Australian citizen when he applied for an Australian passport and repeatedly travelled to and from Australia using that passport. He also confirmed that he is still an Australian citizen.

The Citizenship Act 2018

  1. In terms of section 23 of the Constitution, the Claimant ceased to be a citizen of Solomon Islands on his eighteenth birthday. The Citizenship Act 2018 came into force on 31 January 2019. Section 5 of that Act defined “who is a Citizen”. That section provides that a person is a citizen if the person is a citizen by virtue of Chapter III of the Constitution and the person has not ceased to be a citizen. The Claimant is a person who became a citizen by virtue of Chapter III of the Constitution but is caught by the proviso as he had ceased to be a citizen. In terms of section 5 of the Citizenship Act 2018 the Claimant is not a citizen because he had ceased to be a citizen.

The Constitution (Amendment) (Dual Citizenship) Act 2018

  1. The Constitution (Amendment) (Dual Citizenship) Act 2018 came into force on 10 January 2019. That Act repealed section 23 of the Constitution. The effect of that repeal was to remove the automatic loss of citizenship of a citizen who is a national of some other country. It did not reinstate citizenship for those who had loss that status between 7 July 1978 and 10 January 2019. Both immediately before and immediately after the Constitution (Amendment) (Dual Citizenship) Act 2018 came into force, the Claimant was not a Solomon Islands citizen.
  2. The Claimant submits that there is nothing in section 23 of the Constitution that supports the argument that the Claimant lost his Solomon Islands citizenship as a result of the fact that he holds an Australian citizenship. That submission must be rejected. Section 23 specifically provided that any citizen who is a national of some other country (in this case Australia) shall cease to be a citizen of Solomon Islands at the expiration of two years after the date he acquired citizenship of Solomon Islands or attained the age of eighteen years (as in the Claimant’s situation) unless the proviso applies. In the present case there is no evidence before the Court nor claim by the Claimant that the proviso applies to his circumstances.
  3. When the Constitution (Amendment) (Dual Citizenship) Act 2018 repealed section 23 of the Constitution the door was then open to the Claimant and others who held citizenship of another country to apply for Solomon Islands citizenship. There is nothing in the Constitution (Amendment) (Dual Citizenship) Act 2018 that automatically reinstates citizenship that has been lost. Although the Claimant has not ceased to be an indigenous Solomon Islander that does not mean that he did not cease to be a citizen.

Entitlement to register to vote

  1. Section 55(1) of the Constitution provides:
  2. The Constitution could not be clearer on the issue. In order to be registered as an elector there are two principal requirements. The first is that the person must be a citizen of Solomon Islands, the second is that the person must have attained the age of 18 years. The Claimant meets the second requirement but not the first. He is therefore not entitled to be registered as an elector. Similarly, there are two requirements for a person to be qualified for election as a member of Parliament under section 48 of the Constitution. That section provides:
  3. The Claimant meets the second requirement but not the first. He is therefore not qualified for election as a member of Parliament. If the Claimant successfully applied for citizenship of Solomon Islands section 49 of the Constitution would still prohibit him from qualification as a member of Parliament because he remains an Australian citizen. Before the passing of the Constitution (Amendment) (Dual Citizenship) Act 2018, section 49 (1) would have prevented his being so eligible. After the passing of the Act any argument as to qualification was removed by the amendment to Section 49 (1) which now provides:
Holding the citizenship of a country other than Solomon Islands prevents him from being qualified for election as a member of Parliament. As he holds the citizenship of Australia he is not qualified for election as a member of Parliament.
  1. Section 56 (2) of the Constitution prohibits any person from voting in an election for any constituency if the person is not registered as an elector in that constituency. As the Claimant is not permitted to be registered as an elector he is not entitled to vote.
  2. Finally, the Claimant submits that section 7, 8 and 9 of the Electoral Act read with section 48 and 55(1) of the Constitution entitle him to register to vote as an elector and he therefore is entitled to vote in any general or by-election. Those sections provide:
    1. “Right to be an elector
      • A person is entitled to be registered as an elector in a constituency if the person:
      • (a) is entitled to be registered under section 55(1) of the Constitution; and
        • (b) is not disqualified from being registered as such under section 55(2) or (3) of the;Constitnstitution.
    2. Right to be a candidate
    1. Right to vote
  3. As set out above, the Claimant is nottled to be registered as an elector under section 55 (1) of1) of the Constitution because he is not a citizen. He is therefore not entitled to be registered as an elector in a constituency in terms of section 7 of the Electoral Act 2018.
  4. The Claimant also asks for a declaration regarding section 8 of the Electoral Act 2018 as read with section 48 of the Constitution. Although he has attained the age of twenty-one he is not a citizen and is therefore not qualified for election under section 48 of the Constitution. There is a further prohibition in section 49 of the Constitution. As he is a citizen of Australia he is disqualified for election under section 49 of the Constitution. The Claimant therefore fails to meet the criteria for both (a) and (b) of section 8 of the Electoral Act 2018.
  5. The Claimant does not have the right to vote in accordance with section 56(1) of the Constitution, because he is not a Solomon island citizen. Similarly, under section 56 (2) of the Constitution, he is not permitted to vote at an election for any constituency.

Issues

  1. At paragraph 11 the Court recorded the issues agreed between the parties. Those issues can now be determined.

Issue 1

  1. Is the Claimant a British Protected person for the purposes of Section 26 of the Constitution 1978 of Solomon Islands?
For the reasons set out from paragraphs 20 to 30 above, the answer to this question is that immediately before 7 July 1978, the Claimant was a British protected person for the purposes of section 26 of the Constitution 1978 of Solomon Islands. Solomon Islands is now an independent country. Once the Constitution came into force on 7 July 1978, he ceased to be a British Protected person. The reason for this is that on that day he became a citizen of Solomon Islands. Section 4(1)(a) of the Solomon Islands Act 1978 provides:
The Claimant was a British protected person immediately before Independence Day by virtue of his connection with the Solomon Islands protectorate. He ceased to be a British protected person on his becoming a citizen of Solomon Islands. The answer to the issue as posed is therefore no, the Claimant is not a British Protected Person for the purposes of section 26 of the Constitution 1978 of Solomon Islands.

Issue 2

  1. Is the Claimant an indigenous Solomon Islander?
Again for the reasons set out in paragraphs 20 to 30 above the Claimant is an indigenous Solomon Islander.

Issue 3

  1. If the Claimant is an indigenous Solomon Islander does he maintain his Solomon Islands citizenship?
His status as an indigenous Solomon Islander qualified him for citizenship of Solomon Islands without the need to apply for that citizenship. He subsequently lost that citizenship on his eighteenth birthday pursuant to section 23 (1) of the Constitution and therefore did not maintain his Solomon Islands citizenship.

Issue 4

  1. Did the Claimant lose his Solomon Islander status, thus citizenship?
The problem with the issue stated this way is that there are two different concepts. The first is that of “indigenous Solomon Islander”. That is defined in section 26 of the Constitution. Citizenship of Solomon Islands is a different concept altogether. The Claimant did not lose his Indigenous Solomon Islander status but he did lose his citizenship for the reasons set out in paragraphs 31 to 46 above.

Issue 5

  1. Does the Claimant require the State to confer citizenship on him or was citizenship conferred on him by the Constitution of 1978?
Citizenship was conferred on the Claimant by the Constitution, he being an indigenous Solomon Islander in terms of section 26 of the Constitution. That citizenship was subsequently lost as discussed and confirmed at paragraph 58. Before the passing of the Constitution (Amendment) (Dual Citizenship) Act 2018 he could not be a citizen of both Australia and Solomon Islands. He maintained his Australian citizenship. After the Constitution (Amendment) (Dual Citizenship) Act 2018 and the Citizenship Act 2018 came into force he could make application for the State to confer citizenship on him.

Declarations

  1. Pursuant to section 26 (1) of the Constitution of Solomon Islands 1978 the Claimant is an indigenous Solomon Islander.
  2. Pursuant to Section 20 (1) as read with section 20 (6) and Section 22 of the Constitution of 1978, as amended by the Constitution (Amendment) (Dual Citizenship) Act 2018 the Claimant is not a citizen of Solomon Islands.
  1. Pursuant to the Constitution of Solomon Islands 1978 as amended by the Constitution (Amendment) (Dual Citizenship) Act 2018 the Claimant does not continue to hold his Solomon Islands Citizenship despite also holding Australian citizenship.
  1. Pursuant to Sections 48 and 55(1) of the Constitution of 1978 as read with Section 7, 8 and 9 of the Electoral Act 2018, as amended, that the Claimant is not entitled to register as an elector and is therefore is not entitled to vote in any general or by-elections.

By the Court
JUSTICE HOWARD LAWRY
PUISNE JUDGE

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