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Digicel (Solomon Islands) Ltd v Attorney-General [2007] SBHC 63; HCSI-CC 207 of 2007 (26 June 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 207 of 2007

DIGICEL (SOLOMON ISLANDS) LIMITED

-v-

ATTORNEY-GENERAL (Representing the Telecommunications Authority) and
SOLOMON TELEKOM COMPANY LIMITED

Date of Hearing: 11, 12 June 2007
Date of Ruling: 26 June 2007

A. Radclyffe for Applicant
J. Sullivan QC with R. Kingmele for 2nd Respondent
A.N. Tongarutu for the Attorney-General

RULING on application for leave to seek judicial review

Brown, J: By writ of summons the applicant company (which was incorporated in the Solomon Islands on the 24 May 2007) claims relief by way of judicial review for a declaration that a Telecommunication Licence granted to Solomon Telekom Co. Ltd on the 17 November 2003 is ultra vires the Telecommunication Act. The applicant claims that it unlawfully fetters the discretion afforded to the Telecommunications Authority of Solomon Islands (the "Authority)" or that particular parts of the Licence are void for the same reasons. As well, the applicant, by Order 61 Rule 2, also seeks leave to quash the Licence on the basis that a particular part or clause of the Licence contravenes s. 12 of the Constitution; the Court should so declare and quash by way of certiorari.

Since leave is required to pursue these discretionary remedies, I directed that Mr. Sullivan be heard. The Court has not been favoured with an appearance of the Attorney-General, the proper representative of the Authority. Nevertheless, the matter having been listed for hearing today and satisfied as I was that the Attorney had notice of the hearing, I directed the matter to proceed. It is plain that the Telecommunications Authority in the circumstances will abide the decision of the court when it does not seek to address the court.

There was filed with the summons, a statement in terms of O. 61 r. 2 & O. 61 A r. 2 which, after reciting what the plaintiff stated as express terms of the Licence to Solomon Telekom, then pointed to particular clauses and sub-clauses of that Licence as evidence of the "fetter" referred to in the summons. In paragraph 6 of the statement, the plaintiff asserted that the monopoly of the 2nd respondent, Solomon Telekom to telecommunication services in country amounted to an infringement of the plaintiff’s freedom of expression guaranteed by s. 3(b) when read with s. 12 of the Constitution.

In support of the Statement, Mr. Radclyffe for the plaintiff read 2 affidavits, one by himself (explaining why the other affidavit by Mr. Dillon appeared as it did, for it was drafted presuming the incorporation of the applicant company) which annexed the Certificate of Incorporation of Digicel (Solomon Islands) Ltd and Mr. David Dillon’s affidavit which drew objections from Mr. Sullivan before the affidavit could be read.

These first reasons, then relate solely to this issue.

The subject matter of an interlocutory application for leave will normally be apparent on the face of the Statement. In this application the affidavit of Mr. Dillon has been sought to be read in support, for Mr. Radclyffe says the purpose of this affidavit is to seek to satisfy the requirements of Orders 61 & 61A of our Rules. Again, normally an application for leave is heard ex parte but where proceedings have already been instituted in a cause by Solomon Telekom involving issues of interest to Digicel, and where these proceedings sensibly suggest inter-parte proceedings in such circumstances, I allowed Mr. Sullivan (for Solomon Telekom) to be heard. For all the facts should be before the court on such a leave application and nothing suppressed.

Now the "facts" to which Mr. Dillon deposes were the subject of Mr. Sullivan’s objections. Those objections may be shortly separated into 2 parts. Mr. Sullivan says Mr. Dillon’s affidavit evinced a cavalier attitude towards the truth in material parts; it purported to be "expert evidence" from its tenor and was in fact hearsay in a large part, (and consequently in- admissible).

Mr. Radclyffe’s answer was to point to the principle issues for the courts consideration on an ex parte application for leave; eg, the question of locus standi and whether an arguable case appears on the material before the court. So it is a sine qua non that the material before the court should not, in this case, include material which would be inadmissible. That is the flaw in Mr. Radclyffe’s argument, for to determine the "arguable case" must await the determination of the admissible material before the court. So evidence of the facts necessary to obtain relief sought is to be found in Mr. Dillon’s affidavit.

Mr. Sullivan points to the fact that Mr. Dillon claims authorisation as "General Counsel" of Digicel, an appellation, he says that reflects perhaps an Americanism (but may be good law nevertheless).

Whether he is the "Authorised Officer, or the Secretary or a Director authorised" as perhaps may be expected in this jurisdiction which reflects the English company law norms, is not stated, but Mr. Dillon goes on to express opinion which as Mr. Sullivan says rely on, as their basis the deponents qualifications, experience and skills to justify their reception. These is no material in the affidavit to explain the basis of Mr. Dillon’s qualifications, experience or skills which would afford this court satisfaction that he may be seen as sufficiently experienced and to be an "expert" in particular fields of Constitutional law in the Solomon Islands.

Again, while, in para 2 of his affidavit, a sentence deposing to the fact of the companies incorporation has been deleted (since at the date of swearing, the company, Digicel had not then been incorporated in the Solomon Islands,) the tenor of the affidavit does presume the fact, a presumption which goes somewhat, to my view to the credit to be afforded the General Counsel.

Mr. Sullivan then particularly criticised paragraphs of the affidavit, principally on the grounds that the factual basis of the inferences Mr. Dillon sought to draw was lacking, so that his assertions were but matters of conjecture or speculation. With that I have to agree.

Eg, clause"11. It is further widely accepted that the freedom of expression inevitably includes the freedom to receive and communicate ideas and information without hindrance. The concept of the freedom of expression applies not only to the content of information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information".

Such a paragraph is scattered with assumptions which to be accepted need some basis of expertise but as stated must fall into the "hearsay" category.

Most of the affidavit is in the same vein. To be "acceptable" there needs to be evidence to support the inferences which Mr. Dillon seeks this court to draw on his statements. The paragraphs which I strike do not help me but tend to obfuscate the issues of law raised by the Statement. A decision in a Wyoming case is in these terms

"From our analyst of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furnished a fair climate for the consideration of the views of the expert witnesses". (Culver v Sekulich (1959) 80 Wyoming 437 at 458).

Mr. Dillon’s affidavit fails the test.

Once the affidavit is read, it becomes evidence in the proceedings and is not just for use to obtain leave to proceed. Once read, it cannot be gainsaid.

I accordingly strike;

1. The last sentence in para. 9 (assertion of opinion)

2. paras 10, 11, 12 & 13; (assertions of opinion, not inferences to be drawn an established facts)

3. para. 15; (assertion of law)

4. para 17; (conjecture and speculation)

5. The last sentence in para 21; (conjecture)

6. para’s 24, 25; (conjecture and speculation)

7. para 26; (assertion of law)

The remainder of the affidavit may be read.

Following my ruling on Mr. Sullivan’s objections to that affidavit in support by Mr. Dillon, Mr. Radclyffe proceeded to read the remainder of that affidavit, his own affidavit, the Statement in Support and the applicants summons for leave to seek the declarations and orders for certiorari that I have earlier mentioned.

On Telekom’s part, Mr. Sullivan read the affidavits of Mr. Martin Robinson (the Chief Executive of Telekom) dated the 4 October 2006 and 6 June 2007 and an affidavit of Mr. Rodney Kingmele (annexing a letter of the applicants’ Solicitor).

Mrs. Tongarutu, the Acting Attorney-General appeared on this occasion and addressed the court. She said she conceded the applicant had standing to bring the proceedings.

The applicants’ argument was most persuasively put by Mr. Radclyffe. Before proceeding to the substance of his argument on leave, Mr. Radclyffe addressed the time limitations inherent in the Rules of Court. In terms of O. 61 r 3, proceedings for leave need be instituted not later than 6 months "after the date of the proceedings or such shorter period as may be prescribed by any written law".

Mr. Radclyffe says it is the Telekom licence which is sought to be quashed but that a licence does not come within the definition of "proceeding" above. Since the licence was for a term of years, any alleged breach or infringement is ongoing, so that it couldn’t be said the 6 month limitation period envisaged by the Rules applies. He says the same argument may be used in relation to the limitation period of 12 months provided in O 61 A r. 2 (1) for leave to seek enforcement of protective provisions of the Constitution. But Mr. Radclyffe argued that breach of the Constitutional provisions reflected infringement on a day to day basis, so that any-one with locus standi may bring an action. Time limitation, in these circumstances, does not apply.

Mr Sullivan did not accept this argument. He says the fallacy is to be found in the confusion between the wish to quash the licence by way of certiorari (as erroneously directing attention to the fact of the ongoing effect of the licence as somehow enabling circumvention of the time limitations to commence proceedings) and the concomitant effect quashing the decision to grant the licence would have, for that would automatically make the licence void.

By case law the writ of certiorari has been gradually widened to include, not only decisions of a judicial or quasi-judicial nature but also decisions of Public Officers’ administrative acts or omissions. It is this grant by the Telecommunications Authority of the licence on the 17 November 2003 which is the "proceedings" amendable to judicial review. It is not the fact of the licence itself; so that the relevant date for the purpose of calculation of limitation periods is the act of the Telecommunication Authority’s grant on the 17 November 2003.

I accept that argument. For as Mr. Sullivan says, to allow leave to seek the writ without regard to the time limit imposed by the Rules is wrong.

By so doing, the Court would in effect, be ignoring the "act" of the Authority altogether, and looking only to the terms of the licence which the applicant seeks to impugn. The terms of the licence are not the business of the court in this instance.

The former O. 53 of the (English) High Court Rules (detailed in the annual White Book) leaves, with its annotated case law, no doubt that it is the "act" of the Authority which may be reviewed, and the circumstances appertaining to that time are relevant considerations as the Judicial Committee of the Privy Council point out.

Our Rules reflect that historical basis in law, and frankly it would be trite to reiterate the cases decided in this jurisdiction which reflect our supervisory role over "proceedings & decisions of inferior courts, tribunals or other persons or bodies performing public duties or functions" (White Book O 53 – 1997-U.K.) but the use of the word "proceedings" clearly relate our Orders 61 & 61A to the English, and to the "proceedings and decisions of inferior courts". What are amenable to review, here, are acts of public authorities performing public duties or functions, and that truncated supervisory role by the court must accord with its Rules, or the court will be seen to be acting ultra vires.

The fact that the applicant had not been incorporated when the licence was awarded to Telekom cannot be a relevant consideration in determining when time begins to run under the rules, for it is plain time runs from the date of the act or decision complained of and that is 17 November 2003.

Application for leave in both instances is refused for that they are out of time.

Both counsels, however, did argue the "threshold" question of leave (irrespective of the fact that the applications are long out of time) and I will shortly deal with the nub of that argument, although unnecessary.

Mr. Radclyffe sought to show that the monopoly by Telekom to the provision of Telecommunication services about the country pursuant to the licence prima facie exhibited an unlawful fetter on the discretion of the Authority and or in the alternative, infringed the applicant’s Constitutional right to freedom of expression.

He argued that on the strength of the Privy Council decision given in Cable and Wireless (Dominica) Ltd v Marpin Telecoms and Broadcasting Co. Ltd. (2002) 1 WLR 1123, I should be satisfied that, as things stand, the court can grant leave for the factual situation which faced the Privy Council in that appeal was similar to that facing me.

Before dealing with that argument, I will put some facts relevant to this case.

The licence granted Telekom was annexed to Mr. Martin Robinson’s affidavit of the 4 October 2006.

Telekom had prior to the commencement of the period of the expressed "exclusive" licence granted on the 17 November 2003, for very many years, been the sole provider of Telecommunications services.

The licence duration is expressed to be for a period of 15 years and by clause 13.6 a review of the exclusivity may be given the company by the Solomon Islands Government "within three months after the expiry of 5 years from the grant".

Telekom is a Solomon Islander majority owned company owned by the Solomon Islands National Provident Fund (SINPF) and ICSI (whose income is principally sourced from Telekom) and Cable & Wireless, a parent foreign company, which owns approximately 30% of the shares.

The Solomon Islands Government receives revenue from the company in the form of taxes and licence fees. Although there is a suggestion in Mr. Robinsons’ affidavit that the Government also benefits by way of dividends, from a perusal of the business plan and other material, I am unable to say if that is so.

During these years leading to the current licence, the country underwent serious civil unrest which in the years 1999, 2000, until the coming into effect of the Townsville Peace Agreement and since had caused the virtual collapse of the commerce of the country with a concomitant breakdown in law and order and serious adverse impact on the business community in Honiara, the capital.

The Provincial capital towns were also adversely affected by the erosion of government services; private firms suffering as a consequence and the adverse effects were commensurate on Telekom. These effects are a matter of public knowledge.

With the arrival of the Regional Assistance Mission to the Solomon Islands in August 2003, the violence and unrest was curbed. The commercial business of Telecom has since that time been carried on in an environment mainly free from threats of intimidation and destructive behaviour towards its infrastructure. This is relevant for the Privy Council placed emphasis on the "present policy or motivation of the Government of Dominica" as not a matter on which their Lordships either needed to or could investigate. I distinguish then the factual circumstance of the competing commercial interests of the protagonists in Dominica and the fact the sole provider, Telekom was in the Solomon Islands at the time leading to the intervention by RAMSI to re-establish law and order about the country. For that was RAMSI’s mandate from the Government of the day.

I seek to make plain that while the licence does in similar terms to that licence conferred on CWD then in Dominica, clearly confer on Telekom a monopoly or exclusivity in telecommunications services in the Solomon Islands, the policy or motivation of the Dominican Government in no part can be equated to the concern of the SI Government which was that principally seeking the continued provision of services and not a business relationship or profit sharing, however as sought by the Dominican Government. The factual situation in Dominican can clearly be distinguished to that in the Solomon Islands at the relevant time.

It follows that the Authority prima facie has acted in conformity with the Constitutional frame-work relating to communications in section 12 of our Constitution. The Authority facilitated telecommunications facilities about the country when there were real risks to the continuance of such communications and the economic viability of the country with commensurate risks to the telephony provider, and a lack of vitality reflected in the absence of interest by other potential providers, least of all the applicant here. It would be wrong, then, to succumb to the underlying suggestion by the applicant that the Authority had somehow failed in its duty when there is no evidence to suggest this applicant, for instance was anxious to compete with Telekom at that time.

Now, however, Digicel wants to compete commercially with Telekom. It points to the case of Cable and Wireless as affording this court guidance on the Constitutionality of the "exclusive" licence issue. It says such monopoly can be shown to be unconstitutional. Mr. Radclyffe’s reliance on the Lords decision is well placed for this court would need very good reason indeed to depart from the Privy Council’s ratio where the Constitutional protection to freedom of expression in the Solomon Islands is on all fours with that protection considered in Cable & Wireless’s case. Section 10 of the Dominican Constitution is that s. 12 of our Constitution.

"S. 12 (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes the freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference with his correspondence.

(2) Nothing contained in 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-

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating the administration or the technical operation of telephony, telegraphy, posts, wireless, broadcasting or television; or

(c) that imposes restrictions upon public officers, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society."

C&W’s argument that Marpin had no constitutional or other right to operate under its own system was criticised by the Lords of the Privy Council:

"The basic weakness of the argument for CWD on section 10(1) (our s. 12(1) is that it minimises the importance of the provision that a person shall not be hindered in his enjoyment of the rights there specified. As already mentioned, in the view of their Lordships some significant hindrance to freedom of communication is normal and in this instance inevitable if there exists a statutory monopoly to control means of communication as important in the world of today as the Telephone. The issue therefore shifts to s. 10(2)".

The Lords then dispersed with the need to consider the effect of dealing in part with technical administrations or the technical operations of telephony –our s. 12(2) – and focussed their attention on that part of s. 10(2) (b) with "rights and freedoms of other persons" when read with s. 10(1). The Lords recited what was said about the Constitution calling for a balancing exercise, a complex value judgment upon which the courts shall defer to the opinions of the legislature and the executive, for it was contended that the latter arms of the State had to decide whether regulated exclusivity or regulated competition was the best system of telecommunication control for Dominica at its then present stage of national development. "Emphasis is laid on the smallness of the population (about 75,000) and the mountainous terrain. The difficulties of providing a universal telephone service and the importance of committing an international telecommunication enterprise to Dominica are put forward as reasonably justifying a monopoly able to cross-subsidise its services". (C&W at 1130).

But in the end, the Lords said; "they could not on the present appeal rule out any possibility of success for an argument that the economic and other circumstances of Dominica may make a monopoly cross-subsidising its services reasonably required for the purpose of protecting the rights and freedoms of the people to communicate freely", and further "the question for the court is the objective one whether, in authorising and grating exclusivity, the Act and the licence make provision that is reasonably required for the purpose of protecting the rights and freedoms of other persons. If that is shown (the onus falling on those who support exclusivity) the burden will shift to Marpin to show in terms of the last limb of s. 10(2) that it is not reasonably justifiable in a democratic society".

The Privy Council went on to hold that the case needed to be sent back to the trial judge for reconsideration in the light of the principles which the Privy Council found applicable. Included was that principle which called for an appreciation of local conditions.

Addressing the principles to the facts of this case is relatively simple. At the time of the licence the applicant, Digicel was not in existence. Neither its parent company (nor any affiliate) has been shown to have bid for telecommunication rights in the Solomon Islands when, in the words of many, the country risked becoming a "failed state". I am satisfied however on an objective view that the grant of the licence was not made in the light of "general political or economic policy" considerations but at the time of great civil unrest which resulted in the government of Sir Allan Kemakeza asking for assistance of the Regional Assistance Mission. Not to put too fine a point on it, the economy of the country was moribund. The continued logging operations and fishery operations were carried on in circumstances of doubtful regulation. There was, then, no general political or economic consideration in the sense understood in C&W’s case (where the company’s commercial interests clashed and the government of Dominica had a commercial interest in the telecommunication industry as well as a regulatory role) but an imperative on this SI government’s part to maintain such communications.

Now that there is a return to relative stability in the country, commercial prospects are brighter and that is reflected by Digicel’s interest.

A material factor for my consideration in this case is whether the exclusivity of licence is for the whole term of 25 years or whether the provision for review after 5 years affords Telekom any support in its argument against Digicel’s claim for leave. For discretion is seldom exercised where there is an alternative avenue of challenge in relation to claims which stem principally from commercial interest. I say this for there is no evidence to suggest the applicant is but a foreign owned company keen to set up business in the Solomon Islands against a largely domestically owned local business with local stake-holders whose interests are relevant for consideration in such circumstances where review is available.

There is no doubt, that with the passage of time, circumstances affecting the telecommunications industry will change. The licence has, as I have said, provision for review by the Authority. That review if availed of, does afford the Authority the opportunity to appraise the commercial worth of the business, the delivery of services in terms of Telekom’s past performance when viewed against its business plans and its future business plans and in the light of its obligation under s. 12 (2)(b) (to consider the community of the Solomon Islands as a whole when assessing telecommunication facility availability) whether changes are justified or whether another service provider may afford benefits to some part of that community. For it is the SI community whose interests are paramount, not only the commercial interest of any new comer.

There is then an alternative avenue for reconsideration (of the "rights and freedoms of other persons" to access communication facilities) available to the Telecommunication Authority, short of my interference in the Authorities process of its statutory duties and obligations as affected by the Constitution. That is clear from the licence provisions.

I am not satisfied on Digicel’s argument, in the face of the 5 year period of exclusivity before review, written into the licence, that such grant of licence cannot be justifiable in the circumstances which took place in the Solomon Islands, especially where monopoly cross-subsidising services may be justifiable in absence of government support. The fact that the licence may be made the subject of review by the appropriate authority soon is a material factor for my consideration on the leave question. The "exclusivity" issue is properly a matter for the Authority and this court should not interfere with that authority’s discretion.

Digicel never had any sufficient interest in the grant of the licence at that time for it was not a legal entity in the Solomon Islands.

The application is time barred.

Even if it could be brought, it does not satisfy me that it is an appropriate case to grant leave on the principles discussed in C&W’s case.

Leave is refused.

THE COURT