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Basi v Attorney-General [2007] SBHC 48; HCSI-CC 481 of 2004 (30 March 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 481 of 2004

DONALD BASI

-v-

ATTORNEY-GENERAL

(Mwanesalua, J)

Hearing: 21 April 2005
Ruling: 30 March 2007

D. Hou for the Application
N. Moshinski for the Respondent

RULING

Mwanesalua J. The arguments and facts are shortly set out in Mr. Moshinski’s submission – It is sufficient for me to reiterate what he was said.

Relevant Facts

1. In 2003 the Applicant was employed by the Provincial Assembly of the Makira Provincial Assembly.[1]

2. On 27th October 2003 the Applicant attempted to pay election fees for the purpose of contesting one of the seats in the Makira/Ulawa Provincial Assembly but his application was refused by the Returning Officer who told him that he had to resign from the post he held as a Clerk.[2]

3. By reason of the foregoing the Applicant did not contest the said election.

4. The Applicant applied for leave to seek relief under s18(1) of the Constitution.

5. On 18th January 2005 Mwanesalua J granted the Applicant leave under Order 61A of the High Court (Civil Procedure) Rules ("the Rules") to seek redress under s18(1) of the Constitution.

Respondent’s Submissions

6. There is no evidence before the Court of a breach of s13(1) of the Constitution because this provision protects freedom of assembly but the Applicant complains of interference with his desire to stand for elections.

The Applicant has not led evidence that his right of assembly has been hindered.[3]

7. Further s16(1)(g) of the Provincial Government Act (Cap 118) disqualifies a person from membership of a Provincial Assembly if that person holds or is a provincial government officer of any province.

8. S13(2)(c) of the Constitution exempts the operation of s13(1) in a case where there is an imposition of restrictions upon public officers and such a course is reasonably justifiable in a democratic society.

9. The expression "public officer" is defined by s144(1) of the Constitution as being a person holding or acting in any public office.

10. The expression "public office" is defined by s144(1) of the Constitution as "an office of emolument in the public service".

11. The expression "public service" is defined s144(1) of the Constitution as "the service of the Crown in a civil capacity in respect of the government of the Solomon Islands".

12. The expression "Solomon Islands" is defined by s144(1) of the Constitution as "the territory which immediately before Independence Day constituted the territory under Her Majesty’s protection known as the Solomon Islands".

13. It is therefore contended that in 2003 the Applicant, as a clerk employed by the Makira Assembly was occupying an office of emolument in the public service and was a public officer within s13(2)(g) of the Constitution.

14. Further, the disqualification to membership of a Provincial Assembly imposed by s16(1)(g) is a restriction within the meaning of s13(2)(g) of the Constitution.

15. This restriction is justifiable in a democratic society because its purpose is to prevent a conflict of interest between the duties of a public officer and that of a member of a Provincial Assembly occurring. A conflict of such a nature may diminish the capacity of a member to perform his duties effectively and impartially.

16. As to damages the Respondent contends that no evidence of financial loss has been led by the Applicant and therefore no order for damages by way of compensation should be awarded.

The applicant concedes he was a provincial government officer at the time he was nominated and sought to pay election fees. The applicant argues that by virtue of the Makira Ulawa Provincial Staff Instruction and Scheme of Service Vol. 11 passed by the provincial Assembly on 1st March 1990, he is enabled to stand for the provincial government and will be granted leave of absence without pay with effect from the day that his nomination is signed etc.

The conflict is easily seen, for S.15(1)(g) of the Provincial Government Act provides A person shall be disqualified from membership of a Provincial Assembly if the person –

(g) holds office or is a provincial government officer of any province.

For clearly the staff instruction grants leave of absence but does not presume to affect the substantive position of the employee as a government officer.

The applicant does not address this issue in his submissions. He argues the "leave" aspect and uses cases which do not help me.

So far as S.13 of the Constitution is concerned the part does not relate to the issue in question which is holly related to the Statutory Provision for eligible government membership. The Constitutional provision cannot help the applicant in this case. He is not precluded from enjoying freedom of assembly. If the Applicant wants to be elected to the assembly he needs to follow the long established procedure recognized by the Provincial Government Act S.15(1)(g).

I accept Mr. Moshinski’s submission that any restriction on employment if it be so seen, to enable a person to stand for election to the Provincial Assembly, in this case, is reasonably justifiable in a democratic society. To avoid the conflict of interest between the public servant funded by the very Assembly to which he aspires, and that Assembly.

The application claim for declarations is refused. Each party shall pay their own costs.

Mwanesalua, J

THE COURT

^[1] Applicant’s affidavit para 2.
^[2] Applicant’s affidavit, paras 3 and 4.
^[3] cf s13(1) with s31 of the Fiji Bill of Rights (“right to assemble and demonstrate”)