Counsel: Rtao for Job Dudley Tausinga and Others;
W. Titiulutiulu for The Speaker of National Parliament;
Damena Tapei for The Governor-General
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LUNGOLE - AWICH J:
Parties
:
Job Dudley Tausinga, Honourable Member of Parliament, and 24 other members,
are the plaintiffs in this case. They have
come to court seeking 4
declarations. They also seek, "such other order or orders as the Court
may deem appropriate", and of course, costs of their case. The first
defendant is the Honourable Speaker of National Parliament. The second
defendant
is His Excellency the Governor General. From the affidavit of Mr.
Tausinga, sworn on 14.9.1998 and filed on 14.9.1998, to support
the
plaintiffs' case, and from the submission of learned counsel for the
plaintiffs, Mr. Teutao and of learned counsel
Mr. Titiulu, for the Speaker,
it was clear that the Governor General was merely cited as a nominal
defendant. He was
named because the action of the Speaker, the action
complained about by the plaintiffs, arose out of a court judgment in which
the Governor General was a party. Submissions of all the counsel in the case
centred on the constitutional power of the
Governor General to direct the
Speaker of National Parliament to convene Parliament. Mr. R. Teutao for the
plaintiffs
may have considered that citing of the Governor General in the
case would afford the Governor General opportunity to watch
whether the
present proceedings might affect his power, a subject in the case.
The events leato this case are these. On 31.8.1998 the Governor General
ral
issued proclamation for Parliament to sit
on 8.9.1998 to debate a motion of
no confidence in the Prime Minister. The instruction in the proclamation was
carried
out by the Speaker, he sent out notice to Members of Parliament
notifying that Parliament would meet on 8.9.1998. The proclamation
was
challenged by the Hon. Prime Minister at the High Court. Sir John Muria CJ,
sitting at the High Court, delivered
judgment on 10.9.1998. The judgment was
that in the circumstances that prevailed then, the Governor General had
power
under the Constitution to direct the Speaker to convene Parliament to
debate a motion of no confidence in the Prime Minister.
In the judgment on
page 26, the Chief Justice included the sentence:
"The SpeakeNational Parliament would now have to fix
a new date that Parliament can resume and hand have the motion debated
in the
House which is the place where the people of this nation through their
Constitution, intended the present dispute
to be resolved".
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After the judgment, the Speaker, on 11.9.1decided to call Parliament ment to
sit on 25.9.1998, some 15 days after the
judgment and some 17 days after the
original date in the proclamation of the Governor General of 31.8.1998. The
plaintiffs
considered that the date 25.9.1998 was decided by the Speaker at
his own discretion and was too far. They have challenged the
Speaker's
decision by asking the Court for the 4 declarations in their originating
summons.
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The Plaintiffs' Case.
The full extent of the plaintiffs' contentions in law is
best understood by reathe full text of the declarations they seek from
this this Court. I set them out here:
Declarations sought:
"(1). A declaration that the the decision by the Speaker of the National
Parliament of Solomon Islands made on the
1 Nth day of September 1988 that
the Special Meeting of Parliament to debate upon the Motion of No -
Confidence in the
Prime Minister shall be convened on 25th day
of Sepr 1998 is u is ultra vines the Constitution and therefore null and
void in that the power to fix and/or refix
a date for aeting of
Parliament (which will include this Special Meeting of Parliament to debate bate
upon the Motion
of No - Confidence in the Prime Minister) is vested only
in the Governor General of Solomon Islands and not in the Speaker of the
National Parliament of Solomon Islands pursuant to
section 72(1) of the
Constitution.
(2). If the declaration sought in (1) above is granted for a further
declaration that the Governor General of Solomon
Islands is constitutionally
required to fix a new date for the Special Meeting of Parliament to debate
upon the Motion
of No - Confidence in the Prime Minister under section 72(1)
of the Constitution by invoking section 139 of the Constitution
to amend
only the day stipulated in the proclamation made on the31st day of
August 1998.
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(3). A declaration that the decision by they the Speaker of the National
Parliament of Solomon Islands made on the 11th day of September
1998 that the Special Meeting of Parliament to debate upon the Motion of No
- Confidence in the Prime
Minister is in breach of paragraph 1 of page 26 of
the High Court Judgement delivered on the both day of September 1998 in
The Prime Minister v The Governor General Civil Case No. 150 of 1998
which emphasised that the Parliament must be convened "as soon as
possible" and that the said breach by the Speaker of the National
Parliament amounts to a contempt of court and also that the said
decision, to the extent that the said Special Meeting of Parliament is being
delayed by fourteen
(14) days, is in direct conflict with and in breach of
the proclamation made by the Governor General on the 31st day of
Augus8 that Paat Parliament was to meet at 09.30 am on Tuesday 8th
September 1998 tsider the Mthe Motion of Noidence in the Prime
Minister.
(5). Such other order or orders as the Court may deem
apprte.
(6).Cost of the applin�
Proposed Declarations 1 and 2.
Prd declarations 1 and 2 are incompetent to bring before the the High
Court, after the judgment of the High Court (Sir
John Muria CJ sitting) has
just been delivered on 10.9.1998, the judgment effectually deciding the same
constitutional
issues as in this case, and between almost the same parties.
Sir John Muria CJ decided that in the circumstances that prevailed
on
31.8.1998, the Governor General had the power to direct the Speaker to
convene Parliament, as the Governor General
did. Note that the proclamation
upheld by Sir John Muria CJ as lawfully issued by the Governor General
specified a date
when Parliament was to meet and debate the motion of no -
confidence, the date being 8.9.1998. Despite the judgment, the plaintiffs
now ask in proposed declarations 1 and 2, that I again declare that it is
the Governor General who has the power to call Parliament and to
decide the date. The bit asking that I also declare that the Speaker does
not have the power to
refix the date on which Parliament is to meet does not
add to the substance of the legal issue nor does the proposed declaration
that the Governor General "is constitutionally required� to
fix a date, add completely new legal issue to the case. If I were to grant
the declaration as in 2, requiring that
the Governor General is now to fix a
date, I think I would be going too far. I agree with Mr. Titiulu that it is
not
for the Court to order the Governor General to call Parliament to sit
and on a specified date. The issue before the Chief Justice
was whether the
Governor General had the power and his Court has answered in the
affirmative. To raise the same constitutional
issue again is misuse of court
process, even if it is an instance where strictly, the rule of res
indicate does not apply - see Gordon Billy Gatu v
Solomon Islands Electricity Authority and Others
HC. CC59 of 1997, MacDongall v Knight [1890] UKLawRpKQB 55; 25 QB D 1, Reichel v Magrath
14 App. C. 677
and Greenhalgh v Mallard [1947] 2 All ER 255. I shall
be allowing misuse of Court process if I grant proposed declarations 1 and
2. I am sure all learned Counsel today
in Court are aware that such misuse
of Court process is scornfully referred to as abuse of process.
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If the issue is now to compel the Governor General to name a date, then the
parties will have to present the set of facts
which warrants considering
that point of law. I do not think that relevant facts have been made
available so that the
Court may be asked to consider that point of law.
Moreover, the Prime Minister or the Cabinet would have to be joined as
interested parties. My decision is that 1 refuse to grant proposed
declarations 1 and 2.
Declaration 4.
roposed declaration 4 that the delaying of the date of the the sitting of
Parliament until 25.9.1998 is a contravention of
constitutional rights of
Members of Parliament, their right of assembly and of debating motion of no
- confidence is
misconceived. I do not see how the right of assembly is
infringed. The High Court has just held that the Governor General acted
lawfully to direct that Parliament was to sit in the circumstances. When the
meeting directed for 8.9.1998 resumes, as has now been
directed by the Chief Justice, members may exercise their privilege to
debate the motion of no - confidence. The issue
is merely when the meeting
intended for 8.9.1998 is to resume. I refuse to grant proposed declaration
4.
Declaration 3 (Contempt).
[1932] 2 KB 87. Proof must be to the
standard required in criminal cases - see Attorney General v Sillom
(1864) 10 H.L Case 704 and Re Bramblevale [1970] Ch 128 and
Churchman's Case [1972] 1 WLR 1094. Where other remedies are
available, contempt should not be resorted to - see Re Clemens [1877]
LJ Ch 385 and Ansah v Ansah [1977] Fam 143. The
judgment or order allegedly breached must have been served on the alleged
contemnor personally, knowledge by him
about the judgment or order other
than through service on him does not excuse the requirement for service
Churchman's case. All those requirements have not been proved in
this case. I refuse to grant proposed declaration 3.
Clarification of Judgment.
What was meant by, "the Speaker to fix a date?".
ing the hearing, it became apparent, especially when the rehe reply of the
Speaker that he fixed a date, "pursuant to the directives of the High
Court", is taken into account, that the issue in this case was really
what the Speaker understood the judgment of the High Court (Sir
John Muria�s
) authorised the Speaker to do. The issue was not infringement of
constitutional provisions. The Speaker
does not contend that he has power
over that of the Governor General in the circumstances, nor does he aim at
making
the meeting of Parliament impossible. Counsel for all parties
realised that eventually their submissions centred on the meaning
of parts
of the judgment of Sir John Muria CJ, on page 26, in particular what the
Chief Justice meant by the words, "The Speaker would have to fix a new
date�, and, by the phrase, "as soon as possible�.
The full paragraph in which the sentence about fixing date is, reads:
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"The result is that Parliament must meet to debate the
motiono - confidence. The Governovernor General had already lawfully
directed Parliament to convene on 8 September 1998. By order of this Court,
the debate of the motion of no confidence
in the Prime Minister could not
take place on that date. The Speaker of National Parliament would now have
to fix a new
date so that Parliament can resume and have the motion debated
in the House which is the place where the people of this nation
through
their Constitution, intend the present dispute to be resolved.�
It is to be noted that the Chiefice used the clause, "quot;so that
Parliament resume and have the motion debated in the house ...�. First,
the word "resume� must mean to restart something in the past which
had been stopped or interrupted, in this case to restart the meeting
directed for 8.9.1998, but interrupted by suspension by interlocutory order
of the Chief Justice. The paragraph must be read
with the first paragraph on
page 6, stating that it was the Court that suspended the debate of the
motion of no confidence
intended for the 8.9.1998, otherwise the meeting for
the 8.9.1998 would have gone ahead. Further when it is taken into
consideration that the meeting intended for the 8.9.1998 has been declared
lawful, the paragraph in the judgment of Sir John
Muria CJ must be taken to
mean that the Speaker is now to proceed to arrange for the resumption of the
meeting of 8.9.1998
in the terms directed by the Governor General, and
necessarily as quickly as possible because it is a resumption. Once there
is
no court order to stay (suspend) the meeting, there can be no reason to
delay the meeting for even one day unless
the Speaker has now been directed
anew otherwise, by the Governor General.
The statement that the Speaker was to fix date was
subject to the Speaker consulting with the GoveGeneral, because the
central decision of Sir John Muria was that the proclamation of the Governor
General directing meeting for 8.9.1998 is
lawful. Common example of
interlocutory court order injuncting action is the order that the High Court
usually imposes
temporarily prohibiting log ships leaving our ports. Once
judgment is given, lifting the order, there is nothing to stop the
ship
departing immediately.
Declaration of Judgment
What wast was meant by, "as soon as possible".
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The expression "as soon as possibi> was used in t in this
passage in the first paragraph of page 26; the passage states:
"The public and people of this country do not know the
true position of what causes the situation we are now in. This Court
has
before it, the necessary evidence which clearly demonstrate that the
situation we now have must be resolved and he
took the legally provided
measure demanded of him by the Constitution�.
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The expression, "as soon as possible� used by the Chief
Justice in the passage quoted, strengthens the clarification I have given to
the earlier important paragraph
on page 26, the paragraph 1 quoted earlier.
So the phrase "as soon as possible� must be taken to
ask the Speaker to immediately consult the Governor General about when the
Governor General would like
the meeting directed for 8.9.1998 proceeded with
and thereafter, the Speaker would proceed to fix that date. Factors relevant
in determining which day, is a day, "as soon as possible",
are for the Governor General to say. He could have chosen the 11.9.1998,
the day after the suspension of the meeting ended by
Court judgment on
10.9.1998, or he could have chosen the 25.9.1998, the date the Speaker has
named, or any other date,
it was entirely up to the Governor General. The
question of Parliamentary Standing Order does not arise to be taken into
account because the judgment of the Chief Justice has stated that the
Governor General was not bound to follow Standing
Order in the circumstances
in which the Governor General acted.
The Speaker ha explained in his affidavit how he arrived at the date of
of
25.9.1998. He did not give reason why for
instance, the 25th was
suitablenot the the 24th or 26th or even the 11th
or 12th , the first and second days after the judgment of the
High Court had been delivered by Sir John Muria CJ, thereby lifting the
suspension he had ordered of the meeting intended for 8.9.1998. The Speaker
did not state whether he consulted with the
Governor General about the date
of 25.9.1998. If the date was fixed in consultation with the Governor
General, then it
is a date to be taken to be, "as soon as possible�,
and may be proceeded with. If the Speaker did not consult the Governor
General about the date of 25.9.1998, then I suggest that
he consults with
the Governor General immediately, that is on the next working day, which is
tomorrow. In that case the
Governor General may confirm the 25.9.1998, if
he considers it a date soon enough or the Governor General may change
the date to an earlier or later date as he considers to
be soon enough. The
clause "as soon as possible" in the context of the judgment of
the Chief Justice cannot be interpreted to defeat the intention of the
Governor General
to have Parliament meet so urgently as shown in his
direction to have it sit as early as 8.9.1998, but for suspension by the
interlocutory order of the High Court.
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Counsel wil have realised that after 1 have dismissed the declarationstions
sought, I proceeded to clarify the judgment
of Sir John Muria CJ, delivered
on 10.9.1998, the judgment on which the present case is based. I have done
so because
the plaintiffs asked in their originating summons for, "such
other order or orders as the Court may deem appropriate�. I warned all
counsel for all the parties, all through the hearing, about the possibility
of my considering clarification.
I specifically asked each to say whether
that would result in any prejudice to his or her client's case. Counsel for
the plaintiffs and for the Governor General categorically invited the Court
to clarify the judgment of Sir John Muria CJ .
Counsel for the Speaker was
not categorical, but was not opposed to the Court clarifying the judgment.
For those who
want to know the law of procedure by which I acted, I invite
them to read Halsbury's Laws of
England, Fourth Edition at paragraphs 555, 556 and 557,
in particular paragraph 556. Two cases are also relevant, namely, In
re Swine Mellor v Swine [1885] 30 Ch B239, MacCarthy v Agard [1933] 2 KB
417, and Governor General v Billy Hilly Civ. App. 10 of 1994. It is
to be noted that clarification of judgment is not the same thing as the
"accidental slip or omission rule� which is provided for in Order 30
rule 11 of the High Court (Civil Procedure) Rules. It is not about whether
the judgment
to be clarified is correct or not, that is for appeal.
Costs were notitted on in Court, I make no order as to costs, but grant
ant
leave to any party to apply on notice, to
have costs determined in Court.
This has been an urgent matter, it warranted ourt sitting immediately
ly
and outside hours of work. Even cases of private
nature sometimes are so
urgent as to be dealt with immediately. I am thankful to all the counsel in
the case, they had
to attend Court at this very late hour (8 - 8.30 p.m) at
my request so that judgment is delivered.
At the High Court
Honiara, Solomon Islands.
Sam Lungole gole - Awich
Judge.
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