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Suidani v Speaker of Malaita Provincial Assembly [2025] SBHC 24; HCSI-CC 187 of 2023 (13 March 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 187 of 2023

BETWEEN:

DANIEL SUIDANI
Petitioner

AND:

SPEAKER OF MALAITA PROVINCIAL ASSEMBLY
First Respondent

AND:

MINISTER FOR PROVINCIAL GOVERNMENT AND INSTITUTIONAL STRENGTHENING
Second Respondent

Date of Hearing: 6 February 2025
Date of Decision: 13 March 2025

Mr Gabriel Suri for the Petitioner
Mr Brenton Pitry for the First and Second Respondent

JUDGMENT

Bird PJ:

1. Mr. Daniel Suidani (Petitioner) was duly elected in June 2019 to represent Ward 5, West Baegu/Fataleka, Fataleka Constituency, Malaita Province for a term of 4 years. He was also duly elected Premier of Malaita. He was ousted as Premier in February 2023, following a motion of no confidence.
2. On 23 February 2023, the Minister for Provincial Government (Second Respondent) issued a ‘Notice to Show Cause’ to the Petitioner on allegation of acknowledgment of allegiance and adherence to foreign power. The Petitioner responded to the notice denying them and requested particulars of the allegations.
3. On 20 March, the Minister disqualified the Petitioner without providing any particulars and or reasons. Pursuant to the disqualification, the Speaker (First Respondent) had on 6 April 2023, declared the seat for Ward 5 vacant. Such is the background that led to the filing of this proceeding.
4. An Amended Vacancy Petition was filed on 31 July 2024. In his amended petition, the Petitioner is challenging the decision of the Second Respondent in disqualifying him as a provincial member for Ward 5, West Baegu/Fataleka, Fataleka Constituency. He is also challenging the consequential decision of the First Respondent to declare vacant the seat for Ward 5.

The petition and orders ought

5. The Petitioner’s main contention in his vacancy petition relates to the power of the Minister of Provincial Government pursuant to section 15 (1) (a) of the Provincial Government Act. He asserts the Minister had acted ultra vires his powers therein in disqualifying him. He seeks various declaratory orders namely:
   1. An order that there is no evidence of acknowledgement by the Petitioner of allegiance, obedience or adherence to Chinese Taipei, a foreign power or state as alleged by the Minister.
   2. An order declaring that the Petitioner is entitled to his political opinion as guaranteed under section 3 of the national Constitution and to exercise the freedom of expression guaranteed under section 12 of the Constitution in relation to Solomon Islands diplomatic relations with People’s Republic of China or ‘One China” policy.
   3. An order declaring that the concept of agency as applied to Provincial Executive Government is presumed and applied only in the following circumstances:
      • (a) In relation to functions devolved pursuant to section 26 (1) (2) of the Provincial Government Act, and not non-devolved functions like foreign relations; and
      • (b) In relation to arrangements or agreements made pursuant to section 29 of the Provincial Government Act.
   4. An order declaring that the Second Respondent acted ultra vires by disqualifying the Petitioner pursuant to section 15 (1) (a) of the Provincial Government Act from representing the people of Ward 5, West Baegu/Fataleka Ward of Malaita Province, and hence, the disqualification of the Petitioner is null and void ab initio.
   5. An order declaring that the decision and public notice published by the First Respondent in which he declared vacant the seat of Ward 5, West Baegu/Fataleka Ward of Malaita Province, is null and void ab initio.
   6. An order declaring that at the material time, the Petitioner remained lawfully elected provincial member for Ward 5, West Baegu/Fataleka Ward of Malaita Province and that the seat was never vacant.
   7. An order declaring that it is not lawful for the Second Respondent to exercise power under section 13 (2) of the Provincial Government Act for fixing a date for holding of a by-election for Ward 5, West Baegu/Fataleka Ward of Malaita Province, for election of a new provincial member to replace the Petitioner.
   8. An order for exemplary damages.
   9. An order declaring that the Petitioner is entitled wages, allowances and all other entitlements payable to the Petitioner or receivable by the members of the Malaita Provincial Assembly, including all wages, allowances and other entitlements withheld.
   10. Cost on indemnity basis.

Argument of the Petitioner

6. The Petitioner’s main challenge is that the Second Respondent is not vested with statutory power to issue the show cause letter of 23 February 2023. In the Second Respondent’s letter, it was alleged that the Petitioner has shown allegiance and adherence to foreign power, being Chinese Taipei.
7. The basis of the allegations against him are threefold. The first assertion is the Petitioner does not uphold the decision of the national executive government in switching diplomatic recognition to Peoples Republic of China. He has allegedly recognised Chinese Taipei over the decision of the democratically elected government to which the Provincial Government is an agent. It is further alleged that he made statements inciting disharmony and dissatisfaction against the national executive government with regard to the decision to recognise Peoples Republic of China.
8. In relation to the above allegations, the Petitioner responded by letter dated 26 February 2023. He denied them and requested evidence from the Second Respondent. No evidence or particulars of the allegations were provided to him.
9. The Petitioner states that the concept of agency relied upon by the Minister to substantiate the allegations against him, is merely presumed and can only be applied in certain instances. Those instances included the functions devolved under section 26 (1) and (2) and section 29 of the Provincial Government Act (PGA). The devolved functions are those that are contained in schedule 3 and 4. Issues in respect of foreign relation is not included as a devolved function. It follows then that a Provincial Government could not be an agent for the National Executive Government in that regard.
10. Further to the above, it is asserted by the Petitioner that the Second Respondent failed to particularise and or substantiate the allegations. He denied them and requested proof. No proof was provided by the Second Respondent to confirm that he or his executive violated any of the provisions of section 33 (4) (a) – (c) of the PGA.
11. The Petitioner does not hold any passport from the Republic of China on Taiwan. He does not have any citizenship status there. He has not sworn any allegiance to the republic or its disciplined forces. He has never been afforded any form of protection and privileges. In the absence of such particulars, the allegations against him cannot be sustained.
12. He also says that the charges or allegations made by the Second Respondent impinged on his constitutional rights and is not reasonably justifiable in a democratic society. He has freedom of expression under the constitution and he acted within the bounds of the law.
13. The Petitioner was disqualified pursuant to section 15 (1) (a) of the PGA 1997. He argues that the legal basis for his disqualification was done in error. In the Second Respondent’s letter dated 23 February 2023 and his subsequent letter of 20 March 2023, it is expressly stated that the notice to show cause was based upon Section 15 (1) (a) of the PGA 1997. That section provides;
    • s.15 (1) -A person shall be disqualified from membership of a Provincial Assembly if the person –
    • (a) is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state;
14. The above provision was repealed by section 41 of the Citizenship Act 2018. That section now reads:
    • s.41 -Section 15 (1) (a) of the Provincial Government Act 1997 is repealed and replaced with the following:

(a) is disqualified for election as a member of Parliament under section 49 (a) of the Constitution;

15. Section 49 (a) is non-existent in our Constitution. There is a section 49 (1) (a) though. The citation of the law in the Citizenship Act 2018 does not correlate to the Constitutional provision. That position could have been caused by an error or an omission but which was never addressed by the Legislature since 2019.
16. In any event, section 49 (1) (a) of the Constitution provides:
    • s. 49 (1) No person shall be qualified for election as a member of Parliament who –
    • (a) is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state;
17. With the above provisions, it is argued that the Second Respondent has acted ultra vires his powers in disqualifying him pursuant to s. 15 (1) (a) of the PGA 1997. The new s.15 (1) (a) which came into effect on 31 January 2019 merely referred to s. 49 (a) of the Constitution. That section is non-existent.
18. The letters from the Second Respondent to the Petitioner were both written in 2023. Clearly s.15 (1) (a) does not apply. It was repealed. The 2018 amendment refers to a non-existent provision of the Constitution. There are two non-existent laws that were the basis of the Second Respondent’s letters to the Petitioner.
19. Section 49 (1) (a) of the Constitution talks about qualification of a member of Parliament. That provision refers to a pre-election stage. It does not relate to instances post-election.
20. In any event, it is argued that both the repealed provision as well as the current version of s. 15 (1) (a) does not vest the power of disqualification of a member upon the Second Respondent. As per s. 49 (1) (a) of the Constitution, the power of disqualification therein is vested upon a Returning Officer pursuant to regulations 13 (a) and 14 (1) (a) & 3 of the Provincial Government Election (Election) Regulations 2010. Therefore the power inscribed under s. 49 (1) (a) of the Constitution is also not vested in the Second Respondent.
21. Upon the above basis, it is the Petitioner’s position that the Second Respondent had acted ultra vires his powers to disqualify him as a provincial member for Ward 5- Baegu, West Fataleka.
22. Upon the Second Respondent’s issuance of a letter of disqualification, the First Respondent had subsequently declared vacant the seat for Ward 5 – Baegu, West Fataleka under section 16 (1) of the PGA 1997. It is argued that since the action of the First Respondent is reliant upon and is based upon the Second Respondent’s declaration it follows then, that his action is consequently unlawful and without legal basis.
23. It is also the Petitioner’s case that the Second Respondent was merely politically driven and motivated by the DOGA to cause a change of leadership in Malaita Provincial Assembly. That action is against the wishes of the voters. It has resulted in him applying the law incorrectly, unreasonably and unfairly. In this judgment, I do not intend to discuss in detail the grounds under paragraph 14 (1) to (7) of the petition which addresses these issues. It is my view that what is pleaded therein are matters of opinion. They are not proven facts.

The argument of the First and Second Respondents

24. A preliminary issue raised by the Respondents is the declaratory reliefs sought by the Petitioner are unsustainable and of no practical use. Their argument is based on the fact that the petition by the Petitioner has been overtaken by the 2024 provincial elections. A new composition of the Malaita Provincial Assembly was formed following the provincial elections in April 2024. There therefore is no longer any controversy or dispute for the court to deal with through the filed amended petition.
25. Since there is no longer any controversy or dispute between the parties, this court lacks the power to hear and make any determination on the amended petition. They rely on various case law in support of their argument. They say that the court has limited power to deal with claims of a declaratory nature. The amended petition does not fall into the category that this court is entitled to hear and determine.
26. As to the political motive underlying the charge, the Respondents say that the particulars stipulated therein, do not add up to the reason for disqualification. The assertions and documents produced are remote in terms of time, context and relevance. They are non-legal arguments and are mere assumptions.
27. As per the Second Respondent’s power to disqualify the Petitioner, they rely on section 40 of the Constitution. They say that the Second Respondent derives the power to disqualify the Petitioner therein. They say the Second Respondent has general powers which included power of disqualification. With cited case authorities, they further say that the power vested on the Second Respondent also means overall power. He has power to exercise general direction and control over provincial governments including the power to disqualify the Petitioner.
28. They further say that the action of the Second Respondent merely confirms that it was in fact, the Petitioner who disqualified himself by the operation of section 49 (1) (a) of the Constitution. The petitioner pledges allegiance, obedience and adherence to a foreign power over the National Government’s ‘One China’ policy.
29. As to proof of allegiance to foreign power, the Respondents state that there is no additional provision in section 49 (1) (a) of the Constitution that requires the nature of proof required therein. Our constitutional provision does not go further than in other jurisdictions. It therefore does not assist the Petitioner to discuss issues relating to foreign passports, citizenship, swearing of allegiance and all other issues raised in paragraph 9 of the amended petition.
30. On the agency argument, the Respondents state that section 33 (4) (a) of the PGA stipulates that a provincial government cannot be an agent for the National Executive in matters relating to diplomatic or foreign relations. It is a non-devolved function. That being the case, the Malaita Provincial Assembly is not entitled to enter into or negotiate with a foreign state on any diplomatic and foreign relations matters.
31. The Respondents say that the Petitioner has continuously conducted and got himself involved in issues expressly precluded under the provision. That was one of the reasons for his disqualification. In any event section 33 (4) (2) further provides that prior approval must be obtained from the Second Respondent in consultation with the Cabinet in order for a provincial government to conduct or establish any relations of a business or economic nature with any foreign country.
32. In view of the above position, the First and Second Respondents say that the Malaita Provincial Assembly of which the Petitioner was then the Premier was an agent of the National Government.
33. As per the Petitioner’s constitutional rights argument, the First and Second Respondents say that the rights stipulated in section 3 and section 12 of the Constitution are qualified rights. They are not absolute rights. The freedom stipulated in section 3 therein is subjected to respect for the rights and freedoms of others and for the public interest. The freedom of expression pursuant to section 12 is subjected to the matters stipulated in subsections (2) therein.
34. In light of the above limitations and restrictions provided for in the very same sections, the First and Second Respondents say that the assertions of the Petitioner in respect of infringement of his constitutional rights cannot be sustained and must be dismissed.
35. In relation the First Respondent’s declaration, the First and Second Respondents say that he has the mandate to make that declaration pursuant to section 16 (1) of the PGA. He has committed no error.
36. As per the claim for exemplary damages, they say that the Petitioner is not entitled. They say that their actions were not unreasonable in disqualifying the Petitioner and declaring his seat vacant. They have valid reasons in law for their respective actions and decisions. They also rely on case law, in which this court was reluctant to allow a claim for exemplary damages in similar circumstances. In summary therefore, they say that the Petitioner’s petition must be dismissed with cost.

Discussion

37. Having discussed the respective positions of the Petitioner and the First and Second Respondents, the main issue raised by the Petitioner is, his disqualification was not lawfully done. The Second Respondent had thereby acted ultra vires his powers when he disqualified him. Consequently, the declaration of the First Respondent pursuant to section 16 (1) of the PGA is ineffective.
38. The First and Second Respondents did not raise issue that the letters dated 23 February and 20 March 2023 referred to section 15 (1) (a) of the PGA 1997. That section was repealed by Act of Parliament in 2018. The new section became effective in January 2019. What is important to note is the new section 15 (1) (a) made reference to section 49 (a) of the Constitution. There is no section 49 (a) in the Constitution.
39. It is obvious therefore, that both letters were based on non-existent provisions of the law. That is the legal flaw of the charge against the Petitioner. I have noted the submission of Mr Suri of counsel on the issue. I have also noted that there was not much assistance received on that point from Mr Pitry. I have enquired of him during submission and all that I could gather from him was it was an error. In any event, the error has never been rectified to this day. I have also perused and noted the Defence filed on their behalf. That critical issue was not addressed in their Defence as well.
40. In light of the above, a question that needed to be asked is whether or not the charge or allegation against the Petitioner in the letter dated 23 February 2023 can be sustained.
41. It is my considered view that any charge or allegation as in this case must have a legal basis. The legal basis of the charge or allegation against the Petitioner is based upon section 15 (1) (a) of the PGA 1997. That section was repealed and replaced in 2018. The new section referred to section 49 (a) of the Constitution which is also non-existent.
42. The correct constitutional provision is section 49 (1) (a). That provision talks about qualification of members of parliament. Disqualification of members of Parliament is provided for under the Electoral Act 2018.
43. It is my view that section 49 (1) (a) of the Constitution can only be invoked before an election process is facilitated and done by the relevant authority. It cannot be invoked post election. That is the case here. The Petitioner was elected as a provincial member for Ward 5, West Baegu/Fataleka, Fataleka Constituency, Malaita Province in July 2019 for a term of 4 years. The term would have lapsed in July 2023. When he was disqualified by the Second Respondent and his seat declared vacant, he would have been in office for more than 3 years. The 4 years term has almost lapsed.
44. What is also of essence in discussing section 49 (1) (a) of the Constitution is what is provided for in section 48. That section states:
    • s. 48 -Subject to the provision of the next following section, a person shall be qualified for election as a member of Parliament if, and shall not be qualified unless –
    • (a) he is a citizen of Solomon Islands; and
    • (b) he has attained the age of 21 years
45. From my reading of section 48, it is made subject to section 49. So quite apart from being a Solomon Islands citizen and having attained the age of 21 years, if a person intends to contest in an election, he must also fulfil the requirements stipulated in section 49 therein.
46. The words ‘shall be qualified for election’ is used in section 48. In my view, that phrase connotes qualification for election to Parliament. My view is able to be supported in the opening sentence of section 49 (1) and I quote, “No person shall be qualified for election as a member of Parliament...” When both provisions are read together, they contain the prerequisites on qualification for election into Parliament. All of these requirements must be met or fulfilled by a potential candidate before he/she is qualified for election. Sections 48 and 49 of the Constitution deals with pre-election matters.
47. In view of the above discussion, the First and Second Respondents are also unable to be assisted under section 49 (1) (a) of the Constitution. It does not apply in this instance. I hereby endorse Mr Suri’s submission on that point.
48. Having noted the above, I now turn my mind on whether or the Second Respondent has the power to disqualify the Petitioner. I have heard arguments from the parties. Mr Pitry has raised certain provisions of the Constitution and PGA in which the Second Respondent have general direction and control over his Ministry. He has also cited case law in support of his contention. I have noted them.
49. I have also taken note of the position of the Petitioner. He says that the Second Respondent has general power and control over his Ministry but he lacks the power to disqualify him. Section 49 (a) of the Constitution is of no assistance to him because it is non-existent. Section 49 (1) (a) also cannot assist him because the provision merely talks about qualification of members of Parliament. It is silent on the issue of disqualification.
50. The law that provides for disqualification of any member of a provincial assembly on allegation of an acknowledgment of allegiance, obedience or adherence to a foreign power or state is section 15 (1) (a) of the PGA 1997. It is noted that the provision did not go further to state and identify the authority that can exercise and enforce the provision. Suffice to say the provision came to an end when it was repealed in 2018.
51. Section 41 of the Citizenship Act (No. 17 of 2018) repealed section 15 (1) (a) of the PGA. It referred to section 49 (a) of the Constitution. Section 49 comes under Chapter VI – Part 1. That part deals with the National Legislature which is the Parliament.
52. For purposes of election of members of Parliament, section 57 has established the Electoral Commission. The Commission’s functions under section 58 included general responsibility for and shall supervise the election of members of Parliament. From that provision came the enactment of the Electoral Act. The current version is the Electoral Act 2018. The functions and powers of the Electoral Commission are those prescribed in section 11 therein.
53. Pursuant to section 8 of the Act, a person is qualified to be a candidate for election as a members of Parliament if he is qualified under s. 48 of the Constitution and not disqualified under s. 49 therein.
54. Section 64 of the Act in turn provides for validity of nominations. Under that section, it is the duty of the returning officer for a constituency to decide whether a nomination received for a constituency is valid. Subsection (2) further provides:
    • s.64 (2)the returning officer may decide that a nomination in invalid on one or more of the following grounds:
    • (a)that the proposed candidate;
    • (i)is not qualified for election under section 48 of the Constitution; or

(ii) is disqualified from election under section 49 of the Constitution;

55. From the above provision, any questions about qualification and disqualifications of members of Parliament is vested on the returning officer of a constituency. Section 64 (2) (i) and (ii) connects what is provided for under sections 48 and 49 of the Constitution. There cannot be any doubt that the power of disqualification of a member of Parliament and is also applicable to provincial assembly members by virtue of section 41 of the Citizenship Act (No. 17 of 2018), is vested on a returning officer of a constituency pursuant to section 64 (2) (i) and (ii) of the Electoral Act 2018. In the case of provincial assembly members the Provincial Government (Election) Regulation 2010 applies.
56. The above discussion will also confirm my earlier view that section 48 and 49 of the Constitution are only concerned about pre-election aspects of an election process. These constitutional provisions are not supposed to be applied in post-election stages. Any issues arising after election should be rightly left to the jurisdiction of this court under section 52 of the Constitution.
57. Having said the above, I can rightly conclude that the Second Respondent lacked the power to disqualify the Petitioner from being a member of the Malaita Provincial Assembly by his letter dated 20 March 2023. He had acted ultra his powers in doing that act.
58. I have discussed in detail the most vital issues as I see fit for my consideration in this proceeding. This proceeding was overtaken through the occurrence of the 2024 provincial election. It must be noted that the disqualification of the Petitioner occurred only months before the 4 year term of the Malaita provincial assembly has lapsed.
59. From the above discussion and especially the relief sought in paragraph 4, I will not make any determination on the reliefs sought in paragraphs 1, 3 and 7 therein. They are overtaken by the event of the 2024 election and it is moot for me to spend time to address and discuss them. They are hypothetical in nature.
60. In relation to the relief sought in paragraph 2, I say that the freedom in section 3 and 12 of the Constitution are qualified rights. They are subject to other provisions of the Constitution. I take particular note of section 12 (2) (c) which provides for restriction imposed upon public officers. By virtue of his position at the material time, the Petitioner was a public officer. I refuse to grant that relief.
61. As to the relief sought in paragraph 8, the Petitioner says that he has been embarrassed internationally, regionally and domestically by his disqualification and removal from the Malaita Provincial Assembly and that is fitting for payment of exemplary damages.
62. On the contrary, the First and Second Respondents say that the harm asserted by the Petitioner is not by means that they have acted unreasonably, vindictively or high-minded so as to qualify the claim for exemplary damages. They rely on the case of Ouou v Speaker Makira/Ulawa Provincial Assembly [1994] SBHC19. In that case, the court was reluctant to grant any order for exemplary damages.
63. Having noted the contrary positions of the Petitioner and the First and Second Respondents, I have perused and noted the Petitioner’s amended petition and his supporting sworn statements. There is nowhere in his sworn statement that he has particularised his claim for exemplary damages. There is a general statement to the effect that he has been embarrassed internationally, regionally and domestically by his disqualification and removal from the Malaita Provincial Assembly. There is no evidence to show how he was embarrassed and or harmed internationally, regionally and domestically. I hereby refuse to grant the Petitioner’s claim for exemplary damages.
64. As per my discussions and conclusion from paragraphs 37 to 57 above, I grant the reliefs sought in paragraphs 4, 5 and 6 of the amended petition. The effect of this order therefore is:
    1. I hereby declare that the Second Respondent has acted ultra vires his powers when he disqualified the Petitioner to be a member for Ward 5, West Baegu/Fataleka, Fataleka Constituency, Malaita Province by letter dated 20 March 2023. The disqualification of the Petitioner is null and void ab initio.
    2. Consequent to paragraph (i) above, I further declare that the decision and public notice published by the First Respondent in which he declared vacant the seat of Ward 5, West Baegu/Fataleka Ward of Malaita Province, is null and void ab initio.
    3. I subsequently declare that the Petitioner had remained lawfully elected provincial member for Ward 5, West Baegu/Fataleka Ward of Malaita Province and that the seat was never vacant.
    4. I also declare that the Petitioner is entitled to wages, allowances and all other entitlements payable to him or receivable by the members of the Malaita Provincial Assembly, including all wages, allowances and other entitlements withheld.
    5. I award cost for the Petitioner on the standard basis.

THE COURT
Justice Maelyn Bird
Puisne Judge