(i) The power of the
National Parliament to enact letion under sections 59(1) a(1) and 114(2) of
the Constitution is derived
from the People of Solomon Islands.
(ii) The Executive authority
of the Provincial Governments established under section 114 of the
Constitution is derived
from the Constitution and is vested in the Premier
and Ministers of the Executive Government of the Provinces, elected from
and
responsible to each Provincial Assembly elected according to the
Constitution.
p class="Mss="MsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
(iii) The election of
members of each Provincisembly shall be by democratocratic principles of
universal adult suffrage.
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(iv) Legislative, Executive
and financial power shall be decentralised and vest vested within Provincial
Governments according
to specified heads of power and functions as
determined by the Constitution read with the Report of the Solomon Islands
Constitutional Conference 1977 and the Report of the Special Committee on
Provincial Government 1979.
(v) The National Parliament
in enacting legislation pursuant to sections 59(1) and 114 shall ensure that
principles of
equality, social justice and the equitable distribution of
incomes be upheld to provide for effective and responsible Provincial
Government and matters incidental thereto.�
The no doubt in my mind
and no dispute, that the Applicant has locus to bring thig this
application under section 83 of the Constitution as a person whose interests
are being affected or
likely to be affected.
THE CONTENTION OF T APPLICANT.
The argument of the Applicant
can be summarised as follows. It contends that whilst section 114(2) of the
Constitution
authorises Parliament by law to ��make provision for the
government of
Honiara city and the provinces and consider the role of traditional chiefs
in the provinces�,
it did not confer an unfettered power to legislate for any form or type of
provincial government at the whim of Parliament.
Learned Counsel, Mr. Fricke
for the Applicant argues that because subsection 114(2) does not specify the
form of provincial
government which Parliament was authorised to provide
for, there is an ambiguity in that subsection. In order to ascertain
the
correct and true meaning of the word �government� in that subsection,
recourse ultimately would have to be made to
the Preamble to the
Constitution, which he describes as a dictionary for the terms used in the
Constitution, and to extraneous
materials preparatory to the enactment of
the Constitution for assistance. When this is done, he strenuously argued,
the form of provincial government which Parliament is obliged to legislate
for stands out like a sore thumb. Paragraph (a)
in particular of the
Agreement and Pledge of the Preamble, states expressly that the form of
government that should have
been legislated for is one based on democratic
principles of universal suffrage and the responsibility of executive
authorities
to elected assemblies. Mr. Fricke also referred to a number of
reports in support as set out in part III of his written submissions.
He
cautioned a principled interpretation of the Constitution to arrive at the
correct and true meaning of what the framers
had in mind when the provision
was adopted.
THE RESPONSE OF THE SECOND
RESPONDENT.
Ience, the arguments of
the Second Respondent can be summarised as follows. The learneearned
Attorney-General seeks to
argue that section 114(2) of the Constitution is
not ambiguous as may have been suggested by the Applicant, but is quite
clear and plain. It is not necessary thus for the Court to imply anything
into it. More importantly, it is unnecessary
for the Court to import
anything from the Preamble to the Constitution, not only because there is
little assistance to
be obtained from it, but that even if it is to be taken
into account, the Court is not competent to inquire into whether or
not
Parliament had so complied with it. It and it only is the competent
authority to determine the system of provincial
government best suited for
the provinces. It and it only is the competent authority to perform a
balancing exercise of
the general statements of facts, assumptions and
aspirations contained in the Preamble as the issues and questions raised
essentially are based on social policy and politics. The Court accordingly
should not interfere. Its function is to hear
and determine legal issues and
not getting embroiled over such matters.
THE ISSUES BEFORE THIS C
FOR DETERMINATION.
After having carefully thought
long and hard on the submissions of the parties, I have to the
conclusion thon that the
real issues before this Court is not so much whether
there is ambiguity in the meaning of the word �government� in subsection
114(2) or whether it is clear and plain, as to whether or not there are or
is, an underlying principle so fundamental
to the Constitution, which
Parliament is obliged to comply with in prescribing legislation for
provincial government;
failing which, the legislation passed must be
considered as inconsistent with the Constitution and ruled void. In other
words, is there an underlying principle of representative and responsible
government, which forms an �integral element in the Constitution� (to
use the words of Mason CJ in Australian Capital Television Pty. Ltd. v.
The Commonwealth [1992] 177 C.L.R. 123, at p.135), and whether, the
PGA 1996 offends against or is inconsistent with that underlying principle.
SECTION 114 OF THE
CONSTITUTION.
Sectio as amended reads as
follows:
�114.(1) Notwithstanding
anything contained in the Soloslands Independence Order 1der 1978, Solomon
Islands shall be divided
into Honiara city and provinces.
(2) Parliament shall by law
-
<
(a) prescribe tmber of
provinces, and the boundaries of Honiara city city and the provinces after
considering the advice
of the Constituency Boundaries Commission;
(b) make provision for the
govet of Honiara city and the pthe provinces and consider the role of
traditional chiefs in
the provinces.�
In itginal form section
114 was headed �Provincial Government� and did not contain or incl include
Honiara city as a separate
entity. Apart from this, the essential contents
of the section remained the same.
To be read with section 114 is
ection 59, in particular subsection (1), which empowered Paed Parliament to
��make laws for the peace, order and good government of Solomon Islands�,
subject to the provisions of the Constitution.
Subsection 114(1) of the
Constit, provides that Solomon Islands shall be divided into HoniaHoniara
city and provinces.
The words �shall be� must be emphasised, because
those words set the stage for a political provincial system to be envisaged
or developed
and entrenched within the Constitutional framework of this
Country. In other words, the creation or establishment of Honiara
city and
the provinces was not by the design of any political leader, group or
entity, but by the Constitution of Solomon
Islands. On the same token,
paragraph 114(2)(b) of the Constitution, makes plain that Parliament shall
by law make provision
for the government of Honiara city and the provinces,
and take into account the role of traditional chiefs in the provinces.
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As an aside, it should be
pointed out that the term �traditional chief� is not defined in the
Constitution and therefore it is not clear whether it includes an �elder� or
not. Whatever it
may be, the Constitution is silent on it. The inclusion of
elders in the PGA 1996 has been made by Parliament and it is arguable
even
at this stage whether this is constitutional or not. The point to be noted
here is that whilst Parliament may have
the authority to provide legislation
for the government of the provinces, it is only expressly and specifically
authorised
to consider the role of traditional chiefs under the
Constitution. There is no mention of �traditional leaders� or �any others�
in the Constitution, which may cater
for or justify the inclusion of the
role of �elders�. A traditional chief may be an elder, but an elder may not
necessarily
be a traditional chief. Isn�t Parliament reading words into the
Constitution which it cannot do without first making the necessary
amendments. Bearing in mind the opening words of section 59(1) of the
Constitution, ��Subject to the provisions of this Constitution��,
Parliament it seems is also bound by the express and specific words
of the Constitution, in contrast to the use of general words capable of
being interpreted widely.
(Note, references to Honiara
city will not be made here-after as that is not relevant for the purposes of
this application).
Subsection 114(2) gives the
sole responsibility of legislating for provincial government inter alia, to
Parliameniament. This
is crystal clear, and Mr. Fricke has not sought to suggest
otherwise. To that extent, the submissions of the learned Attorney-General
that there is no ambiguity in subsection 114(2) and hence no implication to
be read into that provision, uncontestable
(see 2nd par. of p.3 of the
written submissions of the Attorney-General). The learned Attorney-General
however does not
stop there. He goes on to submit that that being the case,
end of matter. The court has no power to inquire further or may
be, more
accurately, that it is unnecessary for the court to inquire further.
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At paragraph 3, page 3 of his
written suions, he spells out that the Constitution does not define
ine
provincial government,
nor what structure, powers and functions it should
have or how it should function. Neither does the Constitution spell out
the
role traditional chiefs should play in a provincial government set-up. He
sums these up by saying that those matters
have been deliberately left to
Parliament to make provision for as those matters would entail taking into
account all
relevant social, political, cultural and traditional
considerations, including any changes as well as the level of political
education amongst the people.
In addition, there is a
balancing exercise involved in the general statements of facts, assumptions
and aspirations as
contained in the Preamble to the Constitution, and the
only competent authority to do that is the Parliament of Solomon Islands.
The Court therefore should not interfere in the constitutional exercise of
that power.
Withect, this is where I
must part company. Whilst much of what the learned Attorney-Gene-General has
said, is uncontestable,
the real issue before this court should not be lost
sight of. The issue which this court has been asked to determine is whether
there is a fundamental underlying principle which Parliament had not
complied with, or is in breach of, in enacting the
PGA 1996 and thereby is
unconstitutional. That in my respectful view is a proper question and one
which without doubt,
this court must have jurisdiction to inquire into.
The case authority, Re
Constitution of Vanuatu<1993] 1 LRC 141 page 157, referred to by the learned rned Attorney-General in support of his contention that this court does not have jurisdiction to inquire into the law making powers of Parliament as provided for in section 59(1) of the Constitution can be easily distinguished. In reality, it supports the contention of the Applicant.
The learned Chief Ju of
Vanuatu had seen fit to adopt the words of Lord Halsbury LC in Riel v R
i>
(1886) 10 AC 675 and Lord Reid in Chenard v. Arissol [1949] AC 127,
in which both their Lordships had made plain that the words of the statute
pertaining to the law making power of parliament
for the peace, order and
good government of a country was ��apt to authorize the utmost discretion
of enactment for the attainment of the objects pointed to� and that a
court will not inquire into whether any particular enactment of this
character did in fact promote the peace,
order or good government of the
country. Their Lordships however also recognised, that such words �do not
authorize alteration of the Constitution�. At page 157, paragraph e-f,
the learned Chief Justice made the following pertinent comments:
�In the course of
interpreting the constitutionality of these present Bint Bills, there is no
question of entering into
an inquiry as to whether or not the proposed Acts
are in fact �for the peace, order and good government of
Vanuatu�. That must be a
question in the sole discretion of Parliament. The sole question for
determination of the court
is �does the proposed Act (the Bills) or any
parts thereof offend the Constitution, and if so, in respect of which
article
and to what extent?��
I see no reason to die
with the view of the learned Attorney-General that the court will not
inquirequire into whether
such a legislation does in fact promote the peace,
order and good government of Solomon Islands. The issue in this case
however, is on the constitutionality of the legislation enacted; which is
not the same thing.
REPRESENTATIVE AND RESPONSIBLE
NMENT.
The first crucial but very
simple question to answerr this heading is whether the Constitution
provideovides for representative and responsible government; that is, whether
there is an underlying
principle based on representative and responsible
government, which forms the bedrock on which the Constitution is written;
or to use the words of Isaacs J. in The Commonwealth v. Kreglinger &
Fernau Ltd and Bardsley [1926] HCA 8; (1926) 37 C.L.R. 393 at p.413, whether �it
is part of the fabric on which the written words of the constitution are
superimposed.�
The answer with the greatest of
respect is very simple; and must bery big YES. It is unthinkahinkable and
unarguable to
try and say otherwise. From the opening words of the Preamble
to the Constitution, and throughout the provisions of the Constitution,
the
fundamental concepts or principles of representative and responsible
government are not only expressed but entrenched
in the Constitution. It
couldn't have been any clearer. The Constitution through its enacting
provisions reiterate this
underlying concept or principle throughout.
Parliament and the Courts, with their distinctive roles and functions to
perform in the government of this
country, owe their very existence to that
concept or principle. It would be an absurdity for anyone to say that this
had been merely paid lip service to by the enacting provisions of the
Constitution.
<
The opening words of the
Constituprovide:
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�We the people of Solomon
Islands, proud of the wisdom and the worthy customs of our ancestors,
mindful of our common
and diverse heritage and conscious of our common
destiny, do now, under the guiding hand of God, establish the sovereign
democratic State of Solomon Islands.� [emphasis added]
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The words reign
democratic State of
Solomon Islands�,
is emphasised, in particular the word �democratic�. It is axiomatic
that representative and responsible government is the hallmark of a
democratic state. In the book titled
�Democracy� by Dorothy
Pickles, published by Methuen & Co Ltd, (referred to by Mr. Fricke), at
page 13, the learned Author had this to say about �democracy� as a system of
government:
p class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
�As a minimum, democis
a system of government, a set of institutions, tha, that fulfils at least two
essential requirements.
It must, first, be able to elicit as accurately as
possible the opinion of as many people as possible on who shall be their
representatives and on how the country ought to be governed. This means as a
minimum, universal suffrage, (referred to
expressly in the Preamble)
political parties, (the People of Solomon Islands are only too familiar with
this and may
be fed up with some), and the organisation of free voting in
uncorrupt elections at relatively frequent intervals. Second,
it must
provide ways of ensuring that those chosen by the public do in fact do what
the electorate wants them to do or
that they can be replaced if they do not,
even between elections (accountability).�
[Words in brackets added]
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If we read further to the
Declaration, this is what it says at paragrap:
�Declare that (a) all power
in Solomon Islands belongs to its people and is exercised on their behalf by
the legislature,
the executive and the judiciary established by this
Constitution;�
Again, thimerely
reiterating the concepts of representative and responsible government. The
e
power belongs to the
people and is exercised on their behalf by bodies
created under the Constitution. Is the power of the people confined only
to
the nation as a whole? I would say no. It also filters right down to the
provincial levels and right down to the individual.
What is vital to note is
that this declaration has been given clear expression in the provisions of
the written Constitution
of Solomon Islands.
For instance, the Constitution
makes provision for the Legislature consisting of the Nal Parliament of
Solo Solomon Islands,
the members of which are elected by universal suffrage
(sections 46, and 47). Persons in turn who wish to stand for election
as a
member may do so subject to the qualifications set out in sections 48 and
49. The concepts of election by universal
suffrage and representative
government therefore are entrenched in the provisions of the Constitution.
This is all consistent
with the statements of facts, aspirations and
assumptions contained in the Constitution so far.
The Executive is also provided
for in the Constitution consisting essentially of thd of State, Her
MajesMajesty, represented
by the Governor-General, and Cabinet whose leader is
the Prime Minister (Chapter V of the Constitution). The Cabinet in turn
is
collectively responsible to Parliament ( section 35). This is again
consistent with the basic concepts of responsible government; that of
accountability. Isn�t this expressly stated in the Preamble as well, of
the responsibility of executive authorities to elected assemblies?
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The Judiciary ovided for
in Part II of Chapter VII of the Constitution and the High Court is known nown as
the High Court for Solomon Islands. Again connoting elements of
responsibility to the people of Solomon Islands, who hold the power.
Whecome to the Agreement
and Pledge in the Preamble, the very same concepts and principlnciples of
democratic government
are re-echoed, but now in more specific and glaring
terms. Paragraph (a) talks about government based on ��democratic
principles of universal suffrage and the responsibility of executive
authorities to elected assemblies�. That paragraph alone makes it
abundantly clear that the bedrock or foundation on which the written
Constitution of
Solomon Islands is to be built upon and shall be built upon,
is that based upon representative democracy. As amply put by his
Lordship
Mason CJ in the Australian Capital Television Pty. Ltd v. The
Commonwealth [1992] 177 C.L.R. 107, at page 135, �� the principle of
responsible government - the system of government by which the executive is
responsible to the legislature
- is not merely an assumption upon which the
actual provisions are based; it is an integral element in the Constitution.�
Mason CJ was talking about the principle of responsible government in the
Australian context, but I see no reason to
adopt the same tenor of his words
and apply it in the context of Solomon Islands. Also re-quoting Isaacs J. in
The Commonwealth v. Kreglinger & Fernau Ltd and Bardsley (ibid), �It
is part of the fabric on which the written words of the Constitution are
superimposed.� The principles of representative and responsible
government are an integral part of the fabric on which the written
Constitution of Solomon Islands are superimposed. They cannot be separated
or severed unless the Constitution is first amended.
I can go on right through each
chaof the Constitution to uncover and reveal, those foundationational
principles, repeated
and given full expression by the Constitution. For
instance, the very first chapter and the very first section of the
Constitution state explicitly that: �Solomon
Islands shall be a sovereign democratic State.�
This merely reiterated the
opening paragraph in the Preamble to the Constitution referred to above. It
couldn�t be any
clearer, and I need say no more on this. I note that little
or no issue has been raised by the learned Attorney-General directly
on this
point, whether there is an underlying principle of representative and
responsible government inherent in the
written Constitution of Solomon
Islands. What he has done indirectly is to submit that either the court does
not have
jurisdiction, (this has been dealt with and distinguished),or that
even if it has, that there is no inconsistency with the
Constitution. The
latter part will be addressed as the second crucial issue before this court.
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A number of case authorities
have been referred to by learned Counselshe course of their
su submissions. I will refer
to them briefly. Firstly, the cases referred to by
the learned Attorney-General, (West Ham v. Iles (1838) 8 App Cas 38;
AG v. Prince Ernest Augustus of Hanover [1957] AC 438 (HL) at page
467; and The Norwhale [1975] 2 All E R 729.) have been relied upon in
support of the view that it is not necessary for this court to have recourse
to the Preamble
in construing subsection 114(2) of the Constitution in that
the said subsection is clear and unambiguous. On one hand, there
is little
that can be said against the propositions of law contained in those cases;
essentially that the preamble can
be used as an aid to construing an
enacting provision in circumstances where the enacting words are �relatively
obscure
and indefinite� (the Hanover case per Lord Normand at page
467). On the other hand, it should be pointed out that even if the enacting
part of the statute
is clear and unambiguous, the case of The Norwhale
[supra] referred to at top of page 6 of the written submissions of the
learned Attorney-General is clear authority for the proposition
that the
context of the words nevertheless must be considered, and this includes
taking into account inter alia, the preamble of the enacting
provision.. The
application and relevance of those cases nevertheless in the particular
circumstances of this case can
be distinguished in that the issue before
this court is not so much whether subsection (2) is ambiguous or not, but
whether
there is an underlying principle of representative and responsible
government which forms an integral part of the Constitution
and which has
been breached by the terms of the PGA 1996. And in determining that crucial
issue, what recourse should
this court have to? This is where, in answering
that question, I have found the written submissions of the learned Counsel
for the Applicant most useful.
In seeking to determine whether
there is such an underlying principle which forms tegral element or
par part in the Constitution,
this court is obliged to look at the totality of
the Constitution. In fact, it is obliged to do so; and this not only
includes the enacting provisions of the Constitution, but also the Preamble,
the historical development of the Constitution
and the intention of the
framers of the Constitution; (in other words, considering extraneous
materials as well).
The court also can make
necessary implications in interpreting onstitution. And this is this the
crux of the case for
the Applicant; that the court must by necessary
implication find that the Constitution protects the system of government by
universal suffrage and responsible government, and that this had been
breached by the PGA 1996.
Briefly, in Hinds v. The
Queen [1977] AC 195, at page 238,in a dissentudgment, but agreeing
in essence with the method by which constitutions should be interpreted,
Viscount Dilhorne and Lord Fraser had this to say:
�A written constitution must
be construed like any other writocument. It must be construnstrued to give
effect to the intentions
of those who made and agreed to it and those
intentions are expressed in or to be deduced from the terms of the
constitution
itself and not from any preconceived ideas as to what a
constitution should or should not contain. It must not be construed
as if it
is partly written and partly not. We agree that such constitutions differ
from ordinary legislation and this
fact should lead to even greater
reluctance to imply something not expressed. While we recognise that an
inference may
be drawn from the express provisions of a constitution: see
Attorney-General for
Australia v. The Queen [1957]
AC 288 per Viscount Simonds at p 312, we do not agree that on adoption of a
constitution a great deal is left to necessary implication.
If this were so
a written constitution would largely fail to achieve its object.�
In the Australian Capital
Television Pty. Ltd. v. The Commonwealth (supra), at page 133, under the
sub-heading �Constitutional implications�, Mason CJ made the
following observation in respect of the Engineers� Case:
�Sir Owen Dixon noted that,
following the decision in Amalgamated Society of Engineers v. Adelaide
Steamship Co. Ltd.
("the Engineers� Case�), the notion seemed to gain
currency that no implications could be made in interpreting the
Constitution. The Engineers� Case certainly did not support such a Draconian
and unthinking approach to constitutional interpretation.�
Quoting directly Sir Owen in
the Engineers� Case (1920) 28 C.129 at page 681, his Lordshordship
states:
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�Such a method of
construction would defeat thention of any instrument, but, but of all
instruments a written constitution
seems the last to which it could be
applied�
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And later in the Australian
National Airways Pty. Ltd v. The Commonwealth [1945] HCA 41; (1945), 71 C.L.R. 29, at
page 85, quoting Sir Owen again:
�We should avoid pedantic
and narrow constructions in dg with an instrument of govf government and I
do not see why we
should be fearful about making implications.�
Also qg Windeyer J. in
Victoria v. Thv. The
Commonwealth [1971] HCA 16; (1971),
122 C.L.R 353 at page 401 - 402, remarked �implications have a place in
the interpretation of the Constitution �and�our avowed task is simply the
revealing or uncovering
of implications that are already there�.
The learned Chief Justice Mason
pointed out in the Australian Capital Television Ptycase, that
the Auhe Australian High Court had drawn implications from the federal structure
and nature of the Australian Constitution
and gave instances where this had
been done. He however cautioned that �any such implication must be
securely based�. He then went on to say at page 135:
�It may not be right to say
to implication will be made unless it is necessary. In casescases where the
implication is
sought to be derived from the actual terms of the
Constitution it may be sufficient that the relevant intention is manifested
according to the accepted principles of interpretation. However, where the
implication is structural rather than textual
it
is no
doubt correct to say that the term sought to be implied must be logically
or practically necessary for thservation of the integrity of that
structure.
It is essential ep
steadily in mind the critical difference between aeen an implication and an
unexpressed assumption
upon which the framers proceeded in drafting the
constitution. The former is a term or concept which inheres in the
instrument and as such operates as part of the instrument, whereas an
assumption stands outside the instrument.�
[Emphasis added]
Brennan J. in the same case,
was also of the view that if an implied freedom of political communication
was to be drawn
from the Constitution, that it must be considered in the
context of contemporary and relevant political conditions in which
the
impugned law operates. I should point out that the High Court in the above
case had been asked to imply into the
written Constitution of Australia,
which was silent on the point, a freedom of expression in relation to public
and political
affairs.
Deane J. and Toohey J. took the
view that the freedom of communicaabout the government of thef the
Commonwealth was an
implication under the law of an ordered and democratic
society.
Dawson J. also recognised that
an implication may be drawn in relation to the Constitution but that the
nature of the
instrument and the source from which it derives its authority
must be borne in mind. At page 181, he states:
�If implications are to be
drawn, they must appear from the terms of thef the instrument itself and not from
extrinsic
circumstances.�
Gaudron J. also had the
followintinent comments to make at page 208 and 209:
>
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�The Constitution cannot be
construed in a vacAs Sir Owen Dixon pointed oted out in Jesting Pilate, it
is the general
law which is �the source of the legal conceptions that govern
us in determining the effect of the written instrument� and,
in consequence,
�constitutional questions should be considered and resolved in the context
of the whole law, of which
the common law... forms not the least essential
part.� And, of course, the common law embraces those constitutional
principles
which have guided the development of democracy and responsible
government in the United Kingdom.�
At the third paragraph, page
209, he continued:
�Fundamental constitutional
doctrines are not always the subject of exhaustive constitutional provision,
either because
they are assumed in the Constitution or because what they
entail is taken to be so obvious that detailed specification is
unnecessary.�
In the above case, (Australian
Capital Television Pty. Ltd ]), the majority had found ound in favour of
an implied constitutional guarantee of freedom of expression in relation to
public and political affairs despite the fact that the Constitution was
silent on this. Those who dissented however did
not disagree with the
general view that the Court may draw implications from the Constitution.
I am more than convincat
implications may be drawn by this court when interpreting the Constitution
o of Solomon Islands.
The task beme however,
with respect is easier than what befell the High Court of Australia in thin the
above case. I find
that I do not have to travel far from the terms of the
Constitution itself to draw any implication. Deeply embedded in the
terms of
the Constitution are the very notions of representative and responsible
government. These notions can only be
described as �pervading the
Constitution� (to borrow the term used in the Engineers� Case
[supra]; and to borrow from the Boilermakers� Case, (Reg. v. Kirby; Ex
parte Boilermakers� Society of Australia [1956] HCA 10; (1956) 94 C.L.R. 254, at page
275), they form �the central feature of the constitutional system of
Solomon Islands�. In the words of Barwick CJ, they are �manifest
throughout the Constitution�.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
But even if I am to venture
out, to thms of the Preamble, the same clear notions or principles ofes of
representative
and responsible government are to be found. They stand out as
clear reminders, like the carvings on top of Parliament Building
(apart from
their aesthetic beauty), to remind Parliamentarians that the Parliament
belongs to the People of Solomon
Islands, like the Coat of Arms above the
seat where Judges seat in this court, to remind judges, lawyers and the
parties
who come to the court that the Court belongs to the People of
Solomon Islands; lest we forget. These notions or underlying
principles are
so intertwined in the written Constitution, that to attempt to separate or
sever them is an almost impossible
task; but not impossible. To change them
one must change the Constitution first, starting with the Preamble,
according
to section 61 of the Constitution.
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Learned Counsel for the
Applicant, has gone even further, to trace the historical development of the
Constitution, as
well as the development of the local councils culminating
in the current system of Provincial Government as provided for under
the PGA
1981, and to what the framers of the Constitution said at the time of
enactment of the Constitution. I do not
need to repeat, re-quote and
re-trace what he has produced in his written submissions. I can do no
better, than to acknowledge
that these have all been relevant in supporting
and uncovering, the existence of an implication inherent in the Constitution
of Solomon Islands, based on the democratic principles of universal suffrage
and the responsibility of executive authorities
to elected assemblies.
IS THE PROVINCIAL GOVERNMENT
ACT 1996 INCONNT WITH THE CONSTITUTION.
Having established that the
doctrine or underlying principle of representative and reible
government formsforms an integral
element in the Constitution of Solomon Islands,
I must now address the next crucial question whether there has been a breach
of that principle in the provisions of the PGA 1996.
Part I is the preliy part
of the Act; containing the title, commencement and interpretation section.
.
Part II deals
with the specific divisions of the provinces into their
respective areas, and matters pertaining to the powers of the Constituency
Boundaries Commission. These are procedural and formal matters which require
little comment.
Part III deals with the
tablishment of Provincial Councils, and Part IV, the functions of
Provincial Councilsncils. This
is one of the parts of the Act which has come
under heavy attack and criticism from the Applicant.
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The first attack pertains to
the composiof the Provincial Councils. Section 7 provides for this. Its. It
states:
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�There shall be a Provi
Council in each province, which shall consist of thef the Chairman of all the
Area Assemblies
in the province.�
The Applicant argues that by
virtue of sections 21, 22, 31 and 32 of the PGA 1996, Parliament had
provided for a system
whereby non-elected persons could become Chairman of
an Area Assembly, and thereby take up a leading and governing position
in
the Provincial Councils. He advances the argument further by pointing out
that if all the Area Assemblies in a Province
happen to have non-elected
persons chosen as Chairman of the Area Assemblies, then, a Province could
have the situation
where it is being governed by a Council consisting
entirely of non-elected members, or where the majority are non-elected
members and thereby able to control the �mind� of the Council. This, it is
argued is contrary to the underlying concept
or principle of representative
and responsible government. The traditional chiefs cannot claim to have been
elected by
democratic principles of universal suffrage, and therefore cannot
be regarded as representatives of the people of the provinces
in the
democratic sense of the word; neither can they be regarded as being
responsible to the electorate, by virtue of
the fact of their appointment.
The Applicant argues that the
democratic principle ofuntability to an elected assembly is also
virtually nlly non-existent.
This is the second prong of the attack against the
Provincial Council system. The chiefs in such situations, as members of
the
Provincial Council, will both be acting as the Executive authority of the
Province and the Legislature, and there
is no element or mechanism of
accountability provided or safe-guarded in such a system.
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The second crucial attack is
made against Part V and Part VI of the PGA 19hese deal with the
es establishment of Area
Assemblies and Functions of an Area Assembly. The
attack again is two pronged; that whilst there are elected members in the
Area Assembly, by virtue of the appointment of an equivalent number of
persons composed of traditional chiefs and elders,
the possibility of
control in the Area Assemblies by non-elected members is again very real;
and secondly, that of the
question of accountability.
THE COURTS FINDINGS.
I have thought long and hard on
the question whether Parts III, IV, V, and particular, were
inc inconsistent with the
underlying principle of representative and responsible
government as firmly embedded in the Constitution of Solomon Islands.
I have
cogitated over this question many a long while, but have not been able to
come to a satisfactory conclusion that
these provisions in their totality
complied with the underlying principle of representative and responsible
government
as protected by the Constitution of Solomon Islands.
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The submissiut forward by
Mr. Fricke on behalf of the Applicant, with respect, cannot be viewed awed as
mere assumptions,
possibilities or hypothetical questions. They have been
given the status and force of law and thereby to be implemented. To
that
extent this court is duty bound to make clear what the status of those
provisions are.
I am satisfied the set up the Provincial Councils under Part III of the PGA 1996 is inconsistent with
the uthe underlying
principle of representative and responsibility government.
Even if all the members of the Provincial Councils are elected members,
that
with the greatest of respect would still not be sufficient. Whilst they may
have been elected as members in their
respective area assemblies, their
responsibility to an elected assembly is virtually non-existent. Not only
are they
the executive authority of the Provincial Council, but they would
also exercise legislative powers (see section 16 of the PGA
1996 and
Schedules 3 and 4). As the executive and legislative authority of the
Provincial Council, there is no accountability
to an elected assembly as
required by the Constitution. The dangers of such a system is highlighted by
Montesquieu writing
in 1748, and quoted by Dorothy Pickles in her book,
�Democracy� at page 143 as follows:
<
It may sought to be argued
otherwise, that they are in fact accountable to the Area Assemblies; but
with respect, if there
is to be any form of responsibility, in reality it is
only the responsibility or accountability of an individual member of
the
Council to his particular Area Assembly. There is no collective
accountability of the Council as an executive authority
to the Area
Assemblies. In the performance of its functions under Part IV of the PGA
1996, the Provincial Council is
not accountable to anyone save itself. This
with respect, is contrary to the democratic principle of responsible
government.
It must be borne in mind, that the Constitution protects not
merely the democratic principles of representative government
but also
responsible government. Dorothy Pickles (ibid) at page 146 quoting John
Stuart Mill had the following pertinent
comments as well:
�Instead of the ,function o governing, for which it is radically unfit, the proper oper office of a
representative assembly
is to watch and control the government; to throw
light of publicity on its acts; to compel a full exposition and
justification
of all of them which any one considers questionable; to
censure them if found condemnable, and, if the men who compose the
government abuse their trust, or fulfil it in a manner which conflicts with
the deliberate sense of the nation, to expel
them, from office, and either
expressly or virtually appoint their .successors.�
Whilst the above may not be
literalue in the context of provincial governments, and that membemembers of
Provincial Councils
may be expected to perform and act reasonably and wisely
with discretion and not abuse the trust placed upon them, the guarantee
that
they will do so, ( that they will act responsibly ) is not left to
Parliament to address as and when the situation
may demand, but is enshrined
as a constitutional mandate. There are no two ways about it; Parliament is
obliged to comply
with it and the Courts are required to uphold them.
The unconstitutionality of the
composition and set up of Provincial Councils is accted in the
illustratitrations posed
by Mr. Fricke, already referred to, and I do not need to
repeat what he has said.
The composition and set up of
the Area Assemblies is somewhat different, but the essential constitutional
requirement
of accountability is also with respect missing. An Area Assembly
will not only act as the executive authority in its own right
but also the
legislative assembly in matters pertaining to its jurisdiction (see section
42 and Schedule 6 to the PGA
1996).
With the inclusion of chiefs
and elders as members with equal rights in the governing structure of the
Area Assembly,
non-elected members may be in a position to control the
Chairmanship and be the �mind' of the Area Assembly; as correctly put
by Mr.
Fricke in his written submissions. This is clearly contrary to the
constitutional requirements of representative
government.
The role of chiefs and elders
sought to be legislated for by Parliament mustooked at objectively from
rom
the stand -
point of the constitutional mandate given to Parliament, and not
with blinkers. First the role of chiefs. Traditional chiefs
clearly have a
role to play in the affairs of a tribe, clan, line, or even a community over
which they have been given
a mandate to oversee and be responsible for. It
is never doubted and this court does not in any way seek to minimise or
be-little the vital role traditional chiefs have played and continued to
play in the affairs of the People of Solomon Islands
from time immemorial to
the present. In nearly all of the traditional societies in Solomon Islands,
there are clearly
defined or recognized customary practices on how a chief
is chosen. In some it may be by inheritance, through the eldest son
of the
existing chief. In others it may be by the choice of the chief; whoever the
chief chooses to replace him becomes
the next chief on his death.
In other cases, there may more complicated customary practices involved; whilst yet in others, it may
simp simply be by
a simple majority of votes (I have in mind here the movement of
settlers in other parts of the country). In many instances,
the appointment
of a chief is not affected or effected by the community. Despite this, the
responsibility and authority
which a chief exercises, is often not
questioned or challenged. It operates through the age old traits of respect
and
honour characteristic of the traditional societies of this country. In
many instances, what the chief says is to be obeyed
and done, even if one
may disagree with it. In decision making, a chief often is not governed by
any rules. He has his
own rules, and you may disagree with it, but it makes
no difference. In most instances, he is not subject to the tribe, clan
or
line. Rather, it is the tribe, clan, line or society who is to be subject to
him. He is the �boss�, to use a more
common used term. This in no way
demeans or degrades the status of chiefs in the communities of Solomon
Islands. The
People of Solomon Islands are only too familiar with the vital
role and responsibility exercised by chiefs. If we claim to
be concerned
about the role of chiefs and their involvement in the governance of the
affairs of the people of this country,
then let us not forget, how much more
heightened in their awareness of this were, the framers and founders of our
Constitution,
when chiefs clearly played a bigger role and part then. The
framers of the Constitution however, chose, deliberately chose,
in the
wisdom given to them by God, to ingrain in the Constitution, a system
of government which must be foundered on democratic principles of universal
suffrage and
representative and responsible government. The framers however
did not forget about principles of equality, social justice,
the equitable
distribution of incomes, or human dignity, communal solidarity, cultural
traditions and the involvement
of our people in the governance of their
affairs. These they have sought to place within the context of the written
Constitution
as vital elements. The wording contained in subsection 114(2),
�and consider the role of traditional chiefs in the provinces� in my
respectful view is not by accident. It was so placed by design; recognising
that the roles to be played by the
traditional chiefs (note it does not
mention anything about elders), is to be carefully weighed and balanced with
the
democratic principles of universal suffrage and representative and
responsible government. It is not a mandate to alter the Constitution; by
elevating the role that chiefs are to play in provincial governments, beyond
the recognized principles of representative and responsible government.
I must state categorically here, that this mandate is not the brain-child of
this court, but an implication which, I
have sought to go into great lengths
to explain, inheres in the Constitution.
levation of chiefs into
positions where they may exercise leadership and governing pong powers by direct
legislation,
without the will of the People is offensive to the Constitution
of Solomon Islands, as it currently stands. Chiefs cannot be
deemed to
represent the People they rule over by an Act of Parliament or be assumed to
represent the People; according
to democratic principles of universal
suffrage and representative and responsible governments. Earlier on in my
judgment
I referred to the works of the learned Author, Dorothy Pickles on
her description of Democracy as a System of Government. I
re-quote (at page
13):
�As a minimum, democracy is
a system of government, of institutions, that fulf fulfils at least two
essential requirements.
It must, first, be able to elicit as accurately as
possible the opinion of as many people as possible on who shall be their
representatives and on how the country ought to be governed. This means as a
minimum, universal suffrage, political parties,
and the organisation of free
voting in uncorrupt elections at relatively frequent intervals.�
The mere fact that a person is
a traditional chief doe necessarily imply that he represents as
accurately aely as possible
the opinion of as many people as possible that he
shall be their representative. He may or may not be. The Constitution
however does not beat around the bush on this. It safe-guards this process
by requiring that this be done by democratic
principles of universal
suffrage and representative government. For those who might argue that the
Constitution should
not be construed contrary to the matters set out in the
Preamble, in particular paragraph (e) of the Agreement and Pledge,
and to be
seen as restricting the participation of our people in the governance of
their affairs, with respect, I must
respond by saying that there is in
actual fact no conflict or inconsistency. If a traditional chief wishes to
take up
the reins of power in the Provinces ( in accordance with democratic
principles of government), there is no legal impediment.
He is as free as
any one eligible, and meets the qualifications set out, to contest in the
race. Already we have chiefs
in the reins of power, (in Parliament and may
be Provincial Assemblies), and they have come through the normal channels of
the electoral process protected by our Constitution. The Constitution cannot
say one thing one place and another somewhere
else. It must be construed
consistently throughout, and Parliament cannot make it say something
different either by legislation,
as has sought to be done in this case.
It is my respectful view that
the framers of the Constitution were not ignorant, neither unaware of the
role that chiefs
were to occupy. In the Report of the Solomon Islands
Constitutional Conference London, presented to the British Parliament
in
October, 1977, this is referred to in the written submissions of Mr Fricke
at page 20, the following was recorded
under the heading "Chiefs and
traditional leaders�:
�55. ppropriate role
for chiefs and other traditional leaders is at the provincial and ared area
government levels. The
special committee to be appointed to review
provincial governments shall be asked to examine the role of chiefs in
provincial
and area governments.
56. Provincial Assemblies
will be empowered to co-oiefs on the Assembly or to r to establish a
Provincial Council of Chiefs as a consultant or advisory body. An Act of
Parliament shall prescribe for periodic national conferences of chiefs and
other traditional leaders. Each
Province shall nominate up to two delegates
to these conferences.�
[Emphasis added]
The words in subsecti4(2)
of the Constitution had been placed there by design, and should be construed
d
in the context
of the Constitution. When that is done, the provision of a
system whereby chiefs can be elevated to take up key positions in
the
Provincial Councils and Area Assemblies ( that is the positions of either
Chairman or Deputy Chairman of an Area
Assembly, and member or President of
a Provincial Council), and exercise control over the affairs of the Area
Assembly
or Province in my respectful view is contrary to the democratic
notions of representative and responsible governments. Chiefs
do have a role
to play and that is not for one moment to be denied. The qualification is
that whatever role it is that
Parliament deems appropriate should not
conflict with the basic notions of government embedded in the Constitution.
Otherwise,
amend the Constitution in accordance with section 61.
On the position of elders
included in the PGA 1996, the arguments raised in respect of the
position and stat status of
traditional chiefs equally apply. I did point out
earlier on though, my reservations as to the constitutionality of the
inclusion of elders in the PGA 1996. The Constitution did refer specifically
only to traditional chiefs. Isn't Parliament
therefore bound to comply with
that specific mandate. If not, then why not amend the Constitution in the
normal way under
section 61, and either define the term �traditional chiefs�
to include traditional leaders such as elders, or simply amend
subsection
114(2) to read inter alia, ��and consider the role of traditional chiefs
and traditional leaders in the provinces�.
But even if the Area Assemb were composed only of elected members under the current structure exercising
powe power and rule,
the fundamental element of accountability would still be
lacking as pointed out above. There is no mechanism for responsible
government to be exercised by the Area Assembly as an executive authority
and as a legislative body in itself ( see sections
39 and 42 of the PGA
1996). I am satisfied too that the structure of the Area Assemblies under
the PGA 1996 offends against
the democratic principles of represented and
responsible government inherent in the Constitution of Solomon Islands.
Thee other provisions
which the Applicant has sought to argue to be unconstitutional, bul, but in my
respectful view it
would not be necessary for this court to consider them in
view of the way this court has ruled, and also because the crucial
issues in
my view, lie only in those parts of the PGA 1996.
I now turn to the orders sought
in this applicatioe declaration sought in paragraph (a) of the Amended
Summons is
to the effect that the Provincial Government Act 1996 is
inconsistent with the Constitution, and is void. This should be qualified as
follows: That Parts III, IV, V, and VI
of the PGA 1996 are inconsistent with
the Constitution and hereby declared to be void. The resultant effect of
this would
simply be to have the whole Act declared invalid; severance is
impossible. To do so would leave the Act with very little to
work on.
As to the declarations sought
in paragraph (b) of the Amended Summons, it is my respectful view that it is
not necessary
for this court to make any findings on them. They will have to
wait for a more opportune and appropriate time for their consideration.
Finally, I wish to take this
opportunity to suggest that responsible auties consider
a an amendment to Part II of Chapter VII of the Constitution, now that we have
more High Court Judges available, so
that in Constitutional Cases like the
one before me, at least three Judges should preside. This should lighten the
load
and burden placed on any single Judge and also make the task lighter in
such weightier matters of the law. In such situations,
the relevant
provisions pertaining to the composition of the Court of Appeal may have to
be increased as well to say
a minimum of five, when it does sit to hear.
appeals on Constitutional Cases. I have not found the case easy. The burden
has been weighty and the task awesome.
The costs in this case and all
incidental ms thereto are to be borne by the Respondents, but in
reality it will have
to be borne by the Government as the Respondents in
this case have been so named not in their individual capacities, but in
their official capacities.
ORDERS OF THE COURT:
1. Declare that Parts III,
IV, V, and VI are inconsistent with the Constitution and thereby void.
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3. Find that the matters
raised in paragraph (b)(i)-(v) of the Amended Summons filed on 9th January,
1997, unnecessary
to be ruled upon.
4. Costs of and incidental
to this action to be borne by the Respondents.
ALBERT R. PALMER
THE COURT
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