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Douglas v Attorney General [1999] SBHC 147; HCSI-CC 284 of 1999 (1 October 1999)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 284 of 1999

KEITH EDWARD GARLAND DOUGLAS

-v-

THE ATTORNEY-GENERAL

HIGH COURT OF SOLOMON ISLANDS
(PALMER J)
Civil Case Number 284 of 1999

Hearing: 16 September 1999
Judgment: 1st October 1999

SOL-LAW for the Plaintiff
THE ATTORNEY-GENERAL representing the Prime Minister, the Principal Immigration Officer and all Immigration Officers, the Commissioner of Police and all Police Officers.

PALMER J.: Since about December of 1998, Solomon Islands had gone through and experienced first hand, a very unfortunate and extreme set of events, in the history of its growth, development and maturity as a nation. Innocent lives have been lost, homes destroyed, people ( including whole families and communities) have been displaced, property destroyed and looted, there have been allegations of women being raped and people murdered and seriously injured, not to mention the many side effects and impacts on children and young people and the nation at large, especially in the town of Honiara. The sanctity of the rule of law held so dear by this Country and enshrined in the Constitution, had been trampled under foot by persons whose identity as a group to date remained uncertain. Various names have been used. The latest name used is the Isatabu Freedom Movement.

In the wake of this lawlessness the Country had not seen since its inception as a nation, consisting and co-existing together as one people despite coming from different backgrounds, islands and language groups, the Government decided to advise the Governor-General to exercise his powers provided for under section 16(2) of the Constitution to declare by proclamation a state of public emergency. This was done on 15 June 1999. The declaration was subsequently approved by not less than two thirds majority vote of all the members of Parliament (subsection 16(3) of the Constitution). Subsection 16(5) in turn provided that the duration of the state of public emergency was to be for a period of four months. The current declaration therefore would lapse on or about 15 October 1999.

On 17 June 1999, the Emergency Powers (Island of Guadalcanal) Regulations 1999 (“the Regulations”) were gazetted pursuant to section 2 of the Emergency Powers Act (Cap. 11) (hereinafter referred to as “the EPA”). Regulation 6 gave the Prime Minister power to make an order for the immediate deportation of any non-national he had reason to believe was engaged in any criminal or unlawful activity. It would seem those activities must necessarily be related to the reasons and purposes for which the state of public emergency had been declared.

On 17 August 1999, the Prime Minister made the Emergency Powers (Island of Guadalcanal) (Deportation) (Keith Douglas) Order 1999 (“the Order”), gazetted on 24 August 1999, whereby the immediate deportation of the Plaintiff out of Solomon Islands was ordered. The Plaintiff at the said time however was in Port Moresby and on hearing about the order has decided not to re-enter the country pending this challenge to this Court. The order accordingly has never been enforced but remains effective and as indicated in the affidavit of the Prime Minister (paragraph 5) will be enforced if the Plaintiff returns to the country.

THE CASE FOR THE PLAINTIFF

The Plaintiff argues the order made for his deportation had been made arbitrarily and capriciously and without any justifiable reason for the belief stated in the order; vis a vis, reason to believe that the Plaintiff was engaged in any criminal or unlawful activity. He claims repeated requests had been made for the Prime Minister’s stated belief and particulars of the alleged unlawful and criminal activity, but none had been given. He also claims the Prime Minister in making the order was biased against him and failed to act in good faith. Further he argues the Prime Minister had failed to act in accordance with the rules of natural justice. He says he had not been informed of the allegations made against him and being afforded an opportunity to be heard in response. In a nutshell, he submits that whatever Regulation 6 says, the Prime Minister was obliged to take into account the requirement of reasonable justification laid down by the Constitution in section 16(7) and to apply that requirement in the making of the order of deportation against the Plaintiff. In so far as the actual making of that order did not comply with that requirement, it was invalid.

THE DEFENDANT’S CASE

The Defendant on the other hand submits the order was validly made and that all that was required in Regulation 6 was for the Prime Minister to show he had reason(s) for his belief and that it was held in good faith. Once that had been shown, and it is contended this was fulfilled in the affidavit of the Prime Minister filed 16 September 1999, that was the end of the matter.

THE LAW.

The starting point must obviously be section 14 (1) of the Constitution which provides:

“No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Solomon Islands, the right to reside in any part of Solomon Islands, the right to enter Solomon Islands and immunity from expulsion from Solomon Islands.”

The right of the Plaintiff to enter and immunity from expulsion from Solomon Islands is one of the fundamental rights and freedoms of the individual protected under the Constitution as set out in Chapter II of the Constitution. If there is to be interference with that freedom of movement therefore it should be authorised by law or falling within the clear confines of the law.

Paragraph 14(3) (c) is one provision of the Constitution which provides for the situation where such interference may be sanctioned in particular circumstances. I quote:

“(3) Nothing contained or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(c) for the imposition of restrictions on the movement or residence within Solomon Islands of any person who is not a citizen of Solomon Islands or the exclusion or expulsion from Solomon Islands of any such person;”

Paragraph (c) above in particular makes reference to the freedom of movement of foreigners (described as non-citizens) which may be regulated by law. The crucial guiding factor in the enactment of any such legislation is that whatever is done under the authority of that legislation should be that which is reasonably justifiable in a democratic society. If shown otherwise, it would be deemed as unconstitutional and invalid.

The Deportation Act (Cap. 58) is a direct consequence of that provision. Anything done in accordance with that legislation for instance, will not be held to be inconsistent with or in contravention of the rights and freedoms protected under section 14(1) of the Constitution, provided it is what is reasonably justifiable in a democratic society.

STATE OF PUBLIC EMERGENCY.

Another provision in the Constitution which envisages a situation where the freedom of movement of individuals may be interfered with is when there is a state of public emergency declared. This is expressly provided for in subsection 16(7) of the Constitution. Section 16 of the Constitution envisages two situations that the country may be faced with. These are, when the nation is at war, or when there is in force a declaration that a state of public emergency exists. It is not in dispute in this case a state of public emergency had been declared by proclamation by the Governor-General of Solomon Islands under subsection 16(2). That state of public emergency will lapse unless extended, on or about 15 October 1999.

Subsection 16(7) therefore is a crucial provision to bear in mind in the current period where a state of public emergency is in force. It reads as follows:

“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section5, 6(2), 9, 11, 12, 13, 14, or 15 of this Constitution to the extent that the law in question makes in relation to any period of public emergency provision, or authorises the doing during any such period of any thing, that is reasonably justifiable in the circumstances of any situation arising or existing during the period for the purpose of dealing with that situation.”

The crucial words are: “... the doing during any such period of any thing, that is reasonably justifiable in the circumstances ...for the purpose of dealing with that situation.” If any thing contained in or done under the authority of any law, enacted pursuant to the state of public emergency, is shown not to be reasonably justifiable in the circumstances etc., it may be deemed unconstitutional and invalid.

The particular piece of legislation enacted to coincide with and cater specifically for such situations as a state of public emergency is the Emergency Powers Act (Cap. 11) (hereinafter referred to as “the EPA”). The provisions of that Act accordingly play a crucial role in this case and should be read together with the provisions of section 16(7) of the Constitution. To that legislation therefore we next turn.

THE EMERGENCY POWERS ACT (“EPA”)

This Act confers on the Governor-General power to make regulations to deal with the situation pertaining during a period of public emergency. Section 2 provides:

“The Governor-General may make such regulations as appear to him to be reasonably justifiable for the purpose of dealing with the situation that exists during any period --

(a). when Solomon Islands is at war; or

(b). when there is in force a declaration made under section 16 of the Constitution that a state of public emergency exists.”

Note in particular the requirement imposed on the Governor-General “... to make such regulations as appear to him to be reasonably justifiable ......” This requirement merely reiterates the master requirement stipulated in subsection 16(7) of the Constitution, that whatever is done in any such legislation is reasonably justifiable in the circumstances existing at the said time and for the purpose of dealing with it. By imposing that requirement on the Governor-General, it was intended that whatever regulations were made, would coincide with and conform to the master requirement in subsection (7).

I point out one of the submissions raised in argument by the Plaintiff was the validity of Regulation 6 as to whether it did conform to that master requirement in subsection (7) or not (more will be said about this in this judgment).

Section 3 sets out some of the matters which may be catered for by any such regulations made by the Governor-General. Some of these include:

making provision for inter alia the deportation and exclusion of persons from Solomon Islands [paragraph (a)];

making provision for the suspension of or amendment of any law [paragraph (g)]; and

making provision for empowering such authorities and persons as may be specified in the regulations to make orders and rules for any of the purposes for which the regulations may be made [paragraph (h)].

Pursuant to the EPA, the Emergency Powers (Island of Guadalcanal) Regulations 1999, (“the Regulations”) were made by the Governor-General and gazetted on 17 June 1999. The relevant regulation for our purposes is Regulation 6. It reads:

“Notwithstanding the provisions of any other law to the contrary, the Prime Minister may where he has reason to believe that any non-national is engaged in any criminal or unlawful activity make an order for the immediate deportation of such person.”

The Order made by the Prime Minister on 17th August 1999 and gazetted on 24th August 1999 [the Emergent Powers (Island of Guadalcanal) (Deportation) (Keith Douglas) Order 1999] was made in turn pursuant to Regulation 6. It is the validity of this order that is being attacked. The attack however focuses more on Regulation 6 and is on a number of fronts. To those grounds I will now turn.

REGULATION 6- IS IT REASONABLY JUSTIFIABLE?

The crucial question for determination before this Court is the validity of Regulation 6; whether what is stipulated is reasonably justifiable in the current circumstances for the purpose of dealing with it. If it is not, it is unconstitutional and therefore null and void. The situation at hand obviously is the current state of public emergency in force on the Island of Guadalcanal as a result of the unlawful activities of certain group(s) of persons currently known as the Isatabu Freedom Movement and their supporters.

What Regulation 6 seeks to do is to authorise the Prime Minister make an order for the immediate deportation of any non-national whom he has reason to believe is engaged in any criminal or unlawful activity. One of the immediate matters which should be clarified is the position regarding the type of criminal and unlawful activity which is and should be envisaged by Regulation 6. In my respectful view, the criminal and unlawful activity referred to in Regulation 6 must necessarily be read as being confined to those activities pertaining to the state of public emergency on Guadalcanal. I do not think any issue was raised in argument by learned Counsels on this point.

The second important matter to sort out is whether the Regulations or in particular Regulation 6 made provision for the suspension or amendment of the Deportation Act. One of the attacks made on the Regulations and specifically Regulation 6, was that it did not expressly provide for the suspension of or amendment of the Deportation Act and accordingly, its provisions still apply to the Plaintiffs case; of particular significance, section 5 of the Deportation Act. To that extent, there has been a breach of the crucial procedures set out in section 5 of the Deportation Act, such that the order of deportation issued by the Prime Minister must be declared to be null and void.

Respectfully, there is a simple answer to this issue and to be found in the wording of Regulation 6 itself. Regulation 6 starts off by saying:

“Notwithstanding the provisions of any other law to the contrary,...”

The word “notwithstanding” in common parlance means “in spite of” or “irrespective”. In Re Bread Carters (Cumberland) Board [1922] A.R. (N.S.W.)73, it was explained “the purport of a notwithstanding phrase in a statute is to mark and remove an obstacle to the intended legislation”. In my respectful view, the phrase “notwithstanding the provisions of any other law to the contrary” has the same effect as a suspension clause. Whilst it does not expressly suspend the application of any particular law, in this case the application of the Deportation Act, the effect achieved is similar in nature. It removes any obstacles that may be found in the Deportation Act against the enforcement and application of Regulation 6. That phrase can be more specifically expressed without losing its meaning and intent by replacing the words “any other law” with “the Deportation Act” so that it can be made to read as: “Notwithstanding the provisions of the Deportation Act to the contrary”. The provisions of the Deportation Act accordingly that are contrary to the application of Regulation 6 are removed or rendered inapplicable by that phrase.

One of the alternative submissions raised by Mr. Sullivan on this point, was that the provisions of the Deportation Act are not contrary to what is stipulated in Regulation 6 and therefore Regulation 6 does not apply to exclude its application. Unfortunately, I disagree. The Deportation Act does not authorise the Prime Minister to issue deportation orders. That power is conferred on the Minister of Commerce, Industries, Employment and Tourism. That power therefore must be contrary to section 5 of the Deportation Act. Secondly, there is no immediate powers of deportation in the Deportation Act. There is an elaborate procedure set out in section 5 of the Deportation Act which must be complied with first before the power of the Minister to issue a deportation order may be exercised. That with respect also is contrary to what is stipulated in Regulation 6.

It is my respectful view, Regulation 6 has the effect of removing any obstacles which may be found in the Deportation Act to the extent the relevant provisions relied on by the Plaintiff in that Act do not apply.

Another argument raised pertains to the power conferred on the Prime Minister to make an order for deportation. With respect that is adequately catered for in paragraph 3(h) of the EPA, which provides that the Governor-General may:

“make provision for empowering such authorities and persons as may be specified in the regulations to make orders and rules for any of the purposes for which regulations may be made;”

It is my respectful view the power conferred on the Prime Minister to make an order for deportation falls within the ambit of paragraph 3(h) of the Deportation Act and therefore valid.

The fourth argument raised pertains to the application of the rules of natural justice, which require that the Plaintiff be given an opportunity to be heard and to know what is alleged against him. In his submission on this matter, the learned Attorney-General relies on section 4(2) of the EPA as validating the actions of the Prime Minister under Regulation 6 in spite of the fact of non-compliance with the rules of natural justice; which is not disputed.

Section 4(2) reads as follows:

“Any regulation made under section 2, or any rule or order made thereunder, shall have effect notwithstanding anything inconsistent therewith in any law, and, to the extent of the inconsistency, the law shall have no effect so long as the regulation, rule or order remains in force.”

Mr. Sullivan for the Plaintiff submits on this point that subsection (2) should be read as applying only to statute law and not including the rules of common law and equity.

With respect however, I disagree. Paragraph 2(1) of Schedule 3 to the Constitution, expressly provides that “.....the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands ....”, subject to the matters set out in sub-paragraphs (1)(a), (b) and (c). The principles and rules of the common law and equity therefore are part of the law of Solomon Islands where they are not inconsistent with the matters set out in sub-paragraphs (1) (a), (b) and (c). Where subsection 4(2) of the EPA refers therefore to “any law’’ or “the law”, that must necessarily include the principles and rules of the common law and equity. The fact therefore the rules of natural justice had not been complied with in the making of the order of deportation by the Prime Minister is not fatal to its validity. Its validity is saved by subsection 4(2) of the EPA.

Finally the crucial question whether the test to be applied to the Prime Minister’s belief should be the objective or subjective test. The Defendant takes the view Regulation 6 conferred on the Prime Minister alone the duty and discretion to determine whether there is reason to believe the Plaintiff is engaged in any criminal or unlawful activity, and as long as it is shown he had acted in good faith (which is not challenged in this instance), his actions must be held to be lawful and not subject to the jurisdiction of this Court.

The Plaintiff argues relying on a number of Case authorities, (Esthigbayi Eleko v. Government of Nigeria [1931] UKPC 37; [1931] AC 662 (PC); Liversidge v. Anderson [1941] UKHL 1; [1942] AC 206 (“the Liversidge Case”); Nakkuda Ali v. Jayaratne [1951] AC 66 (“Jayaratne’s Case”); Attorney-General of St Christopher Nevis and Anguilla v. Reynolds [1980} AC 637 (PC) (“Reynolds Case”); Regina v. Inland Revenue Commissioners; Ex parte Rossminster [1979] UKHL 5; [1980] AC 952) (“Rossminster’s Case”), that the test to be applied must be the objective test and especially if it were to be read in line with what was stipulated in section 16(7) of the Constitution; that is, in order for the actions of the Prime Minister to be reasonably justifiable, there must exist facts which can be established before a court of law which form the basis on which the reason(s) of the Prime Minister are foundered and from which his belief is derived. In particular, he relies on the approach taken by the Privy Council in Reynold’s Case that this Court should read down the words in Regulation 6 to include the words “and is reasonably justified in that belief”. Regulation 6 therefore should be read as: “Notwithstanding the provisions of any other law to the contrary, the Prime Minister may where he has reason to believe (and is reasonably justified in that belief) that any non-national is engaged in any criminal or unlawful activity make an order for the immediate deportation of such person.” Mr. Sullivan submits this is necessary to ensure the said regulation complies with the requirements of subsection 16(7) of the Constitution.

In Reynolds Case (ibid), the Emergency Regulations (the Emergency Powers Regulations 1967) had been made pursuant to the Leeward Islands (Emergency Powers) Order in Council 1959; a pre Independence Order in Council. The life of that Order in Council was only for a limited period after independence pending the enactment of Emergency Legislation. Their Lordships held the Order in Council qualified as existing law and as such was to be construed and to have effect in accordance with section 103 of the Constitution of the State of St. Christopher, Nevis and Anguilla, “with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Constitution.”

In this instance, Regulation 6 is not made from any pre-independence statute. It is the product of legislation directly emanating from the Constitution itself and accordingly, its application must of necessity be construed in accordance with and consistent with the relevant provisions of the Constitution. I had already pointed out and to that extent I agree with the submissions of learned Counsel Mr. Sullivan, that the crucial guiding provision is found in subsection 16(7) in the words “that is reasonably justifiable in the circumstances ....”. It is my respectful view, Regulation 6 does not need to be read down with added words suggested by learned Counsel Mr. Sullivan. All that needs to be determined is the question, whether the objective test or subjective test be applied to the state of mind of the Prime Minister, bearing in mind the master requirement stipulated in subsection 16(7) of the Constitution.

I have taken the time to carefully read through the various judgments referred to by learned Counsel Mr. Sullivan, including the case, Supreme Court Reference No.2 of 1982 [1982] P.N.G.L.R. 214, referred to by the learned Attorney-General, and come to the firm conclusion that the test that must be applied in Regulation 6 is the objective test. In Liversidge’s Case, the words for determination were “has reasonable cause”. The majority applied a subjective construction which had the effect of conferring on the Home Secretary the sole right to decide whether he had reasonable cause or not and that it was not intended for the courts to interfere. The effect of this was aptly stated by Lord Atkin in his dissenting judgment at page 226:

“The result is that the only implied condition is that the Secretary of State acts in good faith. If he does that - and who could dispute it or disputing it prove the opposite? - the minister has been given complete discretion whether he should detain a subject or not. It is an absolute power which, so far as I know, has never been given before to the executive, and I shall not apologize for taking some time to demonstrate that no such power is in fact given to the minister by the words in question.”

Lord Atkin took a lone stand against giving the above phrase a subjective construction and has subsequently been held in later court decisions to have been correct. At page 244, he delivers his classic statement:

“I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. Their function is to give words their natural meaning, not, perhaps, war time leaning towards liberty, but following the dictum of Pollock C. B. in Bowditch v. Balchin, cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman: “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.” In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecter of persons and stand between the subject and any encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.

I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.”

In Jayaratne’s Case, Lord Radcliffe delivering the judgment of the House of Lords at page 76, had this to say referring to the decision in Liversidge’s Case:

“And the decision of the majority of the House did lay down that those words in that context meant no more than that the Secretary of State had honestly to suppose that he had reasonable cause to believe the required thing. On that basis, granted good faith, the maker of the order appears to be the only possible judge of the conditions of his own jurisdiction.

Their Lordships do not adopt a similar construction of the words in reg. 62 which are now before them. Indeed, it would be a very unfortunate thing if the decision of Liversidge’s case came to be regarded as laying down any general rule as to the construction of such phrases when they appear in statutory enactments. It is an authority for the proposition that the words “if AB has reasonable cause to believe” are capable of meaning “if AB honestly thinks that he has reasonable cause to believe” and that in the context and attendant circumstances of Defence Regulation 18B they did in fact mean just that. But the elaborate consideration which the majority of the House gave to the context and circumstances before adopting that construction itself shows that there is no general principle that such words are to be so understood; and the dissenting speech of Lord Atkin at least serves as a reminder of the many occasions when they have been treated as meaning “if there is in fact reasonable cause for AB so to believe”. However read, they must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power.”

In Jayaratne’s Case, the House of Lords had to consider similar words used in regulation 62 of the Defence (Control of Textiles) Regulations, 1945. At page 77 their Lordships state:

“Their Lordships therefore treat the words in reg. 62, ‘where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer’ as imposing a condition that there must in fact exist such reasonable grounds, known to the Controller, before he can validly exercise the power of cancellation.”

In Rossminster’s Case, similar issues were raised concerning a Revenue Officer’s powers of seizure and removal of things “where he has reasonable cause to believe may be required as evidence for the purposes of proceedings” in an offence involving a tax fraud. Lord Diplock states at page 1011:

“These words appearing in a statute do not make conclusive the officer’s own honest opinion, that he has reasonable cause for the prescribed belief. The grounds on which the officer acted must be sufficient to induce in a reasonable person the required belief before he can validly seize and remove anything under the subsection.”

His Lordship went on to refer to Liversidge’s case and openly states:

“For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.”

Similar sentiments were expressed by Lord Scarman at page 1024:

“The main thrust of the respondents’ submissions in your Lordships’ House was directed against the Lawfulness of the seizure and removal of the respondents’ paper. Subsection (3) provides that an officer may seize and remove anything which he has reasonable cause to believe may be required as evidence. The revenue conceded that the officer must in fact have had reasonable cause for his belief and that it is not enough merely to show that he honestly believed he had such cause. The ghost of Liversidge v. Anderson [1941] UKHL 1; [1942] A.C. 206· therefore casts no shadow upon this statute, And I would think it need no longer haunt the law. It was laid to rest by Lord Radcliffe in Nakkuda Ali v. Jayaratne [1951] A.C. 66, 77, and no one in this case has sought to revive it. It is now beyond recall”.

The crucial question posed therefore whether the Prime Minister has reason to believe, must be determined by an objective standard. It is my respectful view, to hold otherwise, would take Regulation 6 outside the requirement stipulated in subsection 16(7) of the Constitution; that what is done therein be reasonably justifiable in the circumstances, for the purpose of dealing with the situation arising in the state of public emergency currently in force on the island of Guadalcanal.

It would not be reasonably justifiable for the Prime Minister to merely act on any information he receives and which he has reason to believe about the activities of the Plaintiff but which might turn out to be completely false. The reasons on which his belief is foundered must be based on existing facts and circumstances which if challenged, as has happened in this case, can be investigated and considered by this Court, subject of-course to what may be regarded as matters confidential and prejudicial to national security and the public interest. What often happens during such tense periods is that all sorts of information, rumours and stories tend to be spread and hyped up, but when one takes the time to look more closely into those things there is often no or little substance to them. The Prime Minister is not immune to these rumours and stories and the possibility of being mis-led albeit honestly, is real. If his belief is to be foundered on a subjective construction, that would in my respectful view be sanctioning a situation which is contrary to the purposes and intents of subsection 16(7) of the Constitution. It would give rise to the situation where he is conferred absolute powers to effect deportation orders on any non-national he has reason to believe is engaged in any criminal or unlawful activities relating to the state of public emergency. As long it is established he holds an honest belief, and as pointed out by Lord Atkin who could dispute that or disputing prove it, his decision cannot be inquired into by the courts and he would not be required to disclose to anyone the facts and circumstances which have induced his belief. In my respectful view, that situation cannot be accepted as falling within the confines of the requirement of being reasonably justifiable set out in subsection 16(7) of the Constitution.

A deportation order effected under Regulation 6 is quite drastic in its effect. It is short and sharp. The Constitution, nor the EPA and the Regulations make express provisions for any opportunities to be given to the person affected to challenge such order apart from recourse in the usual manner through the Courts (compare this with the situation provided for in subsection 16(8) of the Constitution for persons detained during such periods of public emergency). In my respectful view, it is only reasonable and proper that an objective construction be accorded which would require the Prime Minister to act in a manner consistent to that of an ordinary reasonable man which can if challenged, as has happened in this case, be examined by this Court.

ARE THERE FACTS THAT SUPPORT THE REASON(S) FOR THE PRIME MINISTER’S BELIEF.

I now turn to the ultimate question, whether there are facts which establish the reason(s) for the Prime Minister’s belief? The Prime Minister had filed an affidavit on 16 September 1999 in which the reasons for his belief had been briefly outlined (see paragraph 8). Three reasons are relied on:

“(a) The Plaintiff has threatened to cause harm including death to a Solomon Islander.

(b) The Plaintiff had unlawfully sold a firearm to a named person who is a member of an unlawful society.

(c) The Plaintiffs company Dalgro Limited and another company, Togosa Resource Development Co. Limited are believed to be supportive of the members of an unlawful society (the society) who have been and are still committing unlawful and criminal acts against persons and properties on Guadalcanal. This support includes supplying of food, and fuel to them as well as their use of company vehicles and equipment for carrying out the unlawful purposes of the members of the society. The Plaintiff and employees of his company continued to move freely within the areas controlled by members of the society whilst everyone else were not able to.”

Respectfully I find paragraph (a) above to be too general. The date and time of the threat and the manner in which the threat was made is not known. The identity of the Solomon Islander is also not disclosed and whether that incident is related to the state of public emergency existing on Guadalcanal.

Paragraph (b) may be relevant but lacking in details. Who was the person the firearm was sold to and when, and whether the said person was a member of an unlawful society or not.

Paragraph (c) does not directly implicate the Plaintiff. It refers to a belief that the Plaintiffs Company (Dalgro Limited) was supporting the members of the unlawful society by supplying food and fuel and allowing their vehicles and equipment to be used by members of the unlawful society. The details with respect are too general. No detail is given as to the source of this information and the times and dates these observations were made and where. As to the vehicles and equipment alleged used, no detail is given as to which vehicle and what equipment were used. Of crucial significance would be the question whether those matters alleged were done with the knowledge and consent of the Plaintiff.

As they stand, the facts disclosed are insufficient to satisfy the objective test that the Prime Minister had reasons to believe that the Plaintiff was engaged in criminal or unlawful activities. I acknowledge not all the facts had been disclosed as intimated to by the Prime Minister in his affidavit, but until these are disclosed for further consideration by this Court, this Court will have little option but to find that the Prime Minister had little or no reason to believe that the Plaintiff was engaged in criminal or unlawful activities and as a consequence grant the order sought for certiorari to have the order issued on 17 August 1999 for the deportation of the Plaintiff be removed to this Court and quashed.

In the circumstances, it is this Court’s view that the Defendant in this case be given until Tuesday 5th October 1999 not before 9.30 a.m., to file further particulars of the facts which gave rise to the reasons for the belief held by the Prime Minister. Acknowledging that the Prime Minister had indicated in his affidavit that some of the information in his possession may prejudice the national security of the nation, I direct that these be filed in a sealed envelope. This Court will then consider any application by the Attorney-General on the adjournment date, before opening the envelope, whether any particulars should be excluded on grounds of national security. If particulars are filed and this Court determines some or all may be divulged to the Plaintiff, the Plaintiff will be given opportunity to respond, after which this Court will give its final judgment on the issue whether the facts relied on justify the reasons for the belief of the Prime Minister to order the immediate deportation of the Plaintiff.

The orders sought accordingly in the Notice of Motion filed 6th September 1999 can be answered as follows:

1. The order of Certiorari sought in paragraph (1) will be answered after the hearing on the adjournment date.

2. The order sought in paragraph (2) for a declaration that the Emergency Powers (Island of Guadalcanal) (Deportation) (Keith Douglas) Order 1999 issued on 17 August 1999 and gazetted on 24 August 1999 is unlawful, void and of no effect, is hereby declined. The order remains valid until invalidated by order of this Court.

3. The orders sought in paragraphs (3) and (4) for orders of Prohibition against the Principal Immigration Officer and all Immigration officers, the Commissioner of Police and all Police Officers and the Prime Minister, will be unnecessary to be issued even if the order of deportation is quashed by this Court and accordingly are declined.

4. The declaration sought in paragraph (5) that the Plaintiff is entitled to re-enter Solomon Islands, will depend on the outcome of the hearing on the adjournment date. It seems to me however that even if the order of the deportation should be invalidated by this Court, the declaration sought will still be unnecessary and therefore is also declined.

5. The question of costs in my respectful view should be reserved pending hearing on the adjournment date.

6. This case is further adjourned to Tuesday 5th October 1999 at 9.30 am for hearing in camera.

THE COURT