[1988-1989] SILR 50

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 142 of 1989

IN THE MATTER of Section 92(5) of the CONSTITUTION

And

IN THE MATTER of an application by RT. HON. SIR PETER KENILOREA KBE

High Court of Solomon Islands
(Ward C.J)
Civil Case No. 142 of 1989

Hearing: 17 August 1989
Ruling: 21 August 1989

Application to High Court - section 92(4) of the Constitution - whether limited by section 4 of the Public Solicitor Act 1987 - upper income limit in Legal Notice No. 30 of 1989 - Public Solicitor’s discretion to provide legal aid.

Facts:

Sir Peter Kenilorea was concerned with a matter arising out of the appointment of the Governor-General under the Constitution and since it would be expensive to instruct a lawyer he asked the Public Solicitor to represent him. The Public Solicitor refused to take instructions on the basis that Sir Peter’s income was substantially above the limit set for legal aid under the Public Solicitor Act 1987 and Legal Notice No. 30 of 1989 which set the upper income limit for legal aid at $6000.

Held:

(1) The use of the words "to such other persons" at the commencement of section 4(b) of the Public Solicitor Act suggests Parliament intended the persons whose entitlement is to be restricted by an upper income limit to be different in general terms from those in section 4(a), that is, those entitled under section 92(4) of the Constitution.

(2) Section 92(4) of the Constitution gives the Public Solicitor the duty of providing legal aid, advice and assistance and the only limitations are:

(a) that the aid is to be provided to "persons in need" ; and

(b) in such circumstances and subject to such conditions as may be prescribed by Parliament.

(3) Section 3(b) of the Public Solicitor Act defines legal aid as including the provision of legal advice and assistance to persons in need of such advice and assistance but section 92 of the Constitution does not define the phrase " person in need" . It would be illogical for the Act to have a wider meaning than the constitutional provisions and so both provisions are treated alike.

(4) The right to legal aid under section 92 is very wide and although Parliament has the power to restrict that the wording of section 4(a) of the Act does not do so and clearly intends to embrace all such persons.

(5) The Public Solicitor’s refusal on the ground of Sir Peter’s income was wrong. By section 7(1) he must provide legal aid to anyone qualified under section 4 and can only refuse for the reasons listed under section 7(3) and (4).

(6) Sir Peter’s application should be refused because of the public nature of the case. The phrase "a person in need of legal advice and assistance" envisages a personal interest or right and the services of the Public Solicitor should not be provided where a matter of public concern and interest is raised.

The application for a direction that the Public Solicitor should represent Sir Peter was therefore refused under section 7(3) (c) of the Public Solicitors Act.

Cases referred to:

The Attorney General v .Hopo, High Court Civil Case No. 163 of 1988, 9 September 1988 (unrep.)

Applicant in person
J. Muria, Public Solicitor, in person

WARD CJ: The applicant in this case, Sir Peter Kenilorea, is a member of Parliament and a prominent member of the Opposition. He is concerned about a matter arising out of the appointment of the Governor-General under the Constitution. It is something he feels is of considerable public importance which the public as a whole has a right to know has been properly done.

Whilst he feels he has sufficient locus standi to bring the case, it will, of course, not benefit him directly. To brief a lawyer is likely to be expensive and he therefore approached the Public Solicitor to represent him. Mr Muria, the Public Solicitor, has declined the instructions on the basis that Sir Peter’s income is substantially above the limit set for legal aid under the Public Solicitor Act, 1987, and Legal Notice No. 30 of 1989.

Section 92(4) of the Constitution provides:-

"(4) The functions of the Public Solicitor are to provide legal aid, advice and assistance to persons in need in such circumstances and subject to such conditions as may be prescribed by Parliament, and in particular -

(a) to provide legal aid, advice and assistance to any person in need who has been charged with a criminal offence; and

(b) to provide legal aid, advice and assistance to any person when directed to do so by the High Court."

By section 4 of the Public Solicitor Act, legal aid is available-

"(a) to any person who qualifies for such aid in terms of section 92(4) of the Constitution; and

(b) to such other persons whose income does not exceed such amount as the Minister may by order prescribe."

By order dated 17 March 1989 (LN 30/89) the Minister has limited legal aid to persons whose net income per year does not exceed $6,000.

Section 92(5) of the Constitution provides that any person aggrieved by a refusal by the Public Solicitor may apply to the High Court for an order under paragraph (b) of section 92(4).

There is no dispute that Sir Peter’s income exceeds $6000 and that was the ground of Mr Muria’s refusal. Mr Muria suggests that, when the Court is considering an application under section 92(4) (b), the power under the Constitution should also be subject to the same upper income limit. That power to make such an order should be applied in such cases, for example, as where the Public Solicitor has unreasonably refused to represent someone or has wrongly applied one of the grounds of refusal under section 7(3) or (4) to persons within the income limit.

There is some merit in his argument if the purpose of the Public Solicitor’s office is to assist people who could not otherwise afford such assistance. The gravity of the case should not affect the matter. Anyone over the income limit should in those circumstances, be ineligible for legal aid whether his case is serious or trivial.

The provisions of the Constitution give no assistance as to the basis on which the High Court should direct representation save that it is clear such direction is to be made "in such circumstances and subject to such conditions as may be prescribed by Parliament". Those conditions are now found in the Public Solicitor Act and, whilst I accept the logic of Mr Muria’s arguments, I feel the wording of the Act is against him. The use of the words at the commencement of 4(b) "to such other persons" suggests Parliament intended the persons whose entitlement is to be restricted by an upper income limit to be different in general terms from those in 4(a) i.e. those entitled under section 92(4) of the Constitution.

Having said that, I find it hard to make complete sense of those words. Section 92(4) gives the Public Solicitor the duty of providing legal aid, advice and assistance and the only limitations are:

(a) that the aid is to be provided to "persons in need" and

(b) "in such circumstances and subject to such conditions as may be prescribed by Parliament."

Although the phrase "persons in need" is used twice in section 92, it is never defined. However, the Act does give some assistance. Section 3(b) defines legal aid as including the provision of legal advice and assistance "to persons in need of such advice and assistance". The only other time the word appears in the Act (Section 5(3)), it is used also in the same way to indicate need of legal aid. It would be illogical for the Act to have a wider meaning than the Constitutional provisions and so I shall take that as the meaning in section 92 also.

Thus the right to legal aid under section 92 is very wide and, although Parliament has the power to restrict that, the wording of section 4(a) of the Act does not do so and clearly intends to embrace all such persons.

In those circumstances, it is hard to imagine what "other persons" are covered by 4(b) but I must assume Parliament intended to add such a group even though it means the upper income limit is of very restricted application because it only applies to any person not qualified for legal aid under section 92(4).

I would add that whilst the order in LN 30/89 is in more general terms, it is clear that it is only made under section 4(b) and therefore must be taken to refer only to those other persons.

Thus, I have to say that the Public Solicitor’s refusal on the ground of Sir Peter’s income was wrong. By section 7(1) he must provide legal aid to anyone qualified under section 4 and can only refuse for the reasons listed under section 7(3) and (4). I feel the High Court, in deciding whether to direct legal aid under section 92(4) (b) cannot be bound but should be guided by similar principles.

In this case, the subject matter of the action may be of some importance. Sir Peter has taken it up not for his own personal advantage, but on behalf, as it were, of the public as a whole. Whilst an ordinary member of the public may not have sufficient locus, he feels he must have legal standing as a member of Parliament. Having taken such a stand, he should not, he feels, have personally to pay the costs. Of course, if he succeeded, it seems very likely the Court would order that he be paid his costs by the other side.

However, I feel that it is because of the public nature of the case that this court should refuse Sir Peter’s application. It seems to me that the phrase "a person in need of legal advice and assistance" envisages a personal interest or right. Where, as in this case, a matter of public concern and interest is raised, I do not feel the services of the Public Solicitor should be provided. The application for a direction that the Public Solicitor represent Sir Peter in this action therefore is refused under section 7(3)(c).

Whether the public nature of the case is such that the Attorney General should take it before the court is a matter that may be considered. Whilst the Constitution defines his position simply as the principal legal adviser to the Government, it is clear that his duties include acting as the Government’s legal representative and appearing in cases to assert a public right either on his own behalf or at the relation of a member of the public as I suggested in the case of The Attorney General v. Hopo, High Court Civil Case No. 163 of 1988, 9 September 1988 (unrep.). I do not say whether or not this is such a case but it may be a course Sir Peter should consider.