Respondents
Before:
Connolly P.
Los JA
Delivered
this 22nd day of October 1994
JUDGMENT
OF CONNOLLY P AND LOS JA
On
17 October 1994 an Originating Summons was issued by the plaintiffs against
the defendants for declarations as to the
powers of the 1st
defendant as Governor General of Solomon Islands.
The second danendant is Leader of the Opposition.
He has not aedeared and does not wish to take any part in the
proceedings. The plaintiffs the Prime Minister elected pursuant to Schedule 2 of the Constitution after
the gehe general elections of
1993, The Speaker e National Parliament and
the Commissioner of Police.
On
21st October the question of law arising on the hearing of the
Originating Summons was referred to the Court of Appeal by Palmer
J under
section 14 of the Court of Appeal Act and the Court, having regard to the
high importance of the matter proceeded immediately to hear and determine
the questions
raised, the Attorney General appearing for the plaintiffs and
Mr Teutao of Counsel for the Governor General.
The
circumstances out of which these proceedings arise may be shortly stated as
follows. As a resu the
general elections in 1993, The Hon Francis Billy Hilly MP on 18 June 1993
received 24 votes in the election
for Prime Minister to 23 cast fo
opponent. Thirt held thid this
that was an absolute majority of the Parliament of 47 members for the
purposes of Schedule 2 to the
Constitution.
s, noless, the, the narrowerrowest such majority possible and his
position was obviously vulnerable to possible defections from
supporters. So it pr
The minuf a me a meeting between the Governor General and the Prime
Minister of 31 August record that His Excellency questione
Parlt
had not coot convened and the Prime Minister’s response was that his party was
“uncertain it had the necessary
strength to pass legislation and defeat
the no-confidence motion planned by the Opposition.”
He acknowledged that he had only two options, to delay calling
Parliament indefinitely or resign.
By
the beginning of October 1994 6 members including 5 ministers had left his
party and on 2 October he gave His Excellency
to understand that he would
list his supporters and resign if he did not have a majority. This, in itself, suggested that he would not have survived a
vote of no confidence had the Parliament been sitting: and in fact,
on 5
October formed His Excellency in writing that he no longer had the
numbers, which was clearly arly an admission that
this was the position. The
House however had not sat since January.
an>Had it been sittingtting and had a motion of no confidence been moved, he
would have lost it and been obliged to resign
pursuant to s.34 of the
Contion. His Excs Excellenvi advised him to resolve the situation. His
continued prevarication thereafter could only have signified (a)
that there
was no significant improvement in the level of support he couunt on;
and (b) his deis determination to continue
in office notwithstanding.
ttorney-Generaeneral argued that the Prime Minister is proposing to
call the Parliament together in November but in the lig the
history of
this matter that cannot necessarily be guaranteed.
The
implications are so serious that the circumstances can properly be described
as extreme when coupled with the decision
of the High Court on 4 October
1994 in Abe –v- Minister of Finance and Attorney General that the
Hilly Government has borrowed millions of dollars in excess of Parliamentary
authorisation, in breach of s.105
of the Constitution.
The
central feature of the structure of government under the Constitution of
Solomon Islands is majority rule. The
PMinister ster is elected by the procedure set out in Schedule 2, a
procedure conducted by the Governor General to identify
the candidate with
an absolute majority. He isHe is
as , as in many countries including the United Kingdom, selected by the Head
of State. Should he lose the support
of the majority of the Parliament he
may be defeated on a motion of no-confidence passed by an absolute majority
of votes
whereupon the Governor General is required to remove him from
office: s.34. Indeed this Court in the Speaker v Danny Phillip
(Appeal No. 5 of 1990) gave as a reason for limiting the application of
Standing Order 36(3) which was said to deny the
right to move a motion of
no-confidence, that if interpreted literally it could result in a government
without a majority
remaining in office for a long period when it no longer
had popular support.
“The
result could be that the mechanism provided by the Constitution for the
removal of a Government may become inoperative,
and even a Government which
does not have the confidence of the House may continue in an unchallenged
position for many
months. In
odgment, sut, such a conclusion would be quite unsatisfactory and
inconsistent with the principle for which Mr Nori strongly
as we think,
rightly contended, that is, the principle of majority rule in a Parliameliament
democracy. Mr Nressed us with with the proposition that it is our duty
to interpret the Constitution in a way which advances rather than
impedes
the principles of majority Government.”
His
Excellency, in his Speech to the Nation on 17 October 1994 was, in our
judgment, correct in saying:
“The
democratic principle of ‘government by majority rule’ forms the bedrock
of our constitutional system.”
This
position reflects the British practice of identifying the Prime Minister by
his leadership of the majority party or
political grouping in the House of
Commons, although, of course, the Constitution of Solomon Islands does not
give to the
Governor General the function of identifying the candidate with
majority support but substitutes the electoral procedure set
out in Schedule
2.
What
differentiates Australian constitutional practice from that of Solomon
Islands is that dismissal of a Prime Minister
by the Governor General is
provided for only in s.34, that is, after this defeat on a motion of
no-confidence.
Wr this proposroposition is for all circumstances can await
another day. What ast is
es establishe our judgment is that a Prime Minister who hangs on to offi office
while conceding that he has
no majority is in no position to t that the
Governor General’s functions can only be exbe exercised on his advice.
S.72(1)
vests in the Governor-General the function of appointing the place and the
time of the holding of sessions of the
Parliament.
His Excey, has, has ordered the Speaker convene the National
Parliament on Monday 31 October next.& In
the circumstances there can be no doubt about the validity of that order.
The question whethehether the first plaintiff has been validly removed
from office would appear to be academic.
The
questions asked of us and our answers are as follows:-
(i)
Whether it is lawful for the Leader of the Opposition to advise the
Governor-General to cause the Prime Minister to
step down or otherwise
remove him from office outside the floor of Parliament;
Answer:
The Leader of Opposition may lawfully express such an opinion but he can
give no advice within the meaning of s.31(1)
of the Constitution.
(ii)
Whether it is lawful for the Governor-General to act on the advice of the
Leader of Opposition to remove the Prime
Minister from outside the floor of
Parliament;
Answer:
See answer to (i).
(iii)
Whether it is lawful for the Governor-General to remove the Prime Minister
from office on the basis that he has lost
majority support outside the floor
of Parliament;
Answer:
Unnecessary to answer.
(iv)
Whether it is lawful for the Governor-General to unilaterally direct the
Speaker of the National Parliament to convene
Parliament as directed by the
Governor-General in whatever form;
Answer:
Yes, in the circumstances which obtained in 13 October 1994.
(v)
Whether it is lawful for the Governor General to direct Commissioner of
Police to execute warrant signed and issued
on Thursday 13th
October, 1994.
Answer:
Unnecessary to answer.
We
find it unnecessary to discuss the existence and extent of the reserve
powers of the Governor-General. ugh
there was was no extensive argument on the point it would seem that His
Excellency should not have been sued in his
personal name but in that of his
office.
CONNOLLY,
P.
LOS, JA
