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Amasone v Attorney General [2003] TVHC 4; Case No 24 of 2003 (6 August 2003)

IN THE HIGH COURT OF TUVALU
Case No .24 of 2003-08-06

IN THE MATTER OF THE CONSTITUTION OF TUVALU

BETWEEN:

HON AMASONE KILEI MP
Applicant

AND

ATTORNEY GENERAL
Respondent

JUDGMENT

Following the last general election in July 2002, the Hon Saufatu Sopoanga had the support of eight of the fifteen members of Parliament and was elected Prime Minister.

On 17 February 2003 this Court declared that the election of the Member for Nanumea, Hon Sio Patiale, was void thus requiring a by-election. Sadly, a few days later the Speaker died necessitating a further by-election in Niutao. Both Members had been government supporters and it meant that, pending the by-elections, the government had the support of only six of the thirteen remaining members and was therefore in the minority.

Both by-elections were held on 5 May 2003. Hon Sio Patiale was re-elected in Nanumea and the Hon Tavau Teii was elected in Niutao. Whilst the return of Hon Sio Patiale to Parliament has restored one government supporter, it appears that Hon Tavau Teii does not support the government. As a result, the applicant in this case, Hon Amasone Kilei, wrote to His Excellency the Governor General on 10 May 2003 advising that he commanded the support of a majority of the Members of the House and they were ready to form a government. That letter was signed by eight Members of Parliament including the new member, Hon Tavau Teii.

In the letter, the Governor General is requested to summon a meeting of the Members of Parliament to elect a new Speaker in accordance with section 104 of the Constitution. Following that, it asks that he should then summon a sitting of Parliament in order to swear in the new Members and to allow determination of the extent of the support for the present government by a motion of confidence.

Although section 104 requires the Governor General to call a meeting to elect the Speaker "as soon as practicable", he is bound to act in accordance with the advice of the Prime Minister. The Clerk of Parliament had, in anticipation of such a meeting, advised the Members to attend in Funafuti and tentatively fixed a meeting for 9 May 2003. However, no meeting was summoned and so the applicant tried again with a further letter to the Governor General dated 21 May 2043.

In that letter it is suggested that the phrase 'as soon as practicable' in section 104 is only included because of the need for all the Members to attend from their islands for the meeting. As they were all there at the time of the second letter, it suggested there was no practical reason to delay the meeting further. It continues:

"The only bar now is within the Government. There is nothing legal that they are still waiting for to happen. Everything is in order for the election of the Speaker. The problem as we know it is that they now have fewer members than the Opposition, hence it is most beneficial for them to prolong, drag on, the election of the Speaker. The longer they take their time, the more time that they will remain in office hence they will still be paid salaries of Ministers etc.

It is no longer practical to delay the election of the Speaker, when the motive for delay is to make the other political party appear to be incapable of running the Government of Tuvalu, and also to try to break the resolve of its Members so that they join with them and then they can as soon as possible elect a Speaker.

The current Prime Minister has expressly stated that he is not prepared to step down despite the fact that his party does not command the majority of Members of Parliament. This is a direct contravention of the very principles of democracy to which our Constitution strongly upholds. We do not believe that this should be allowed to continue in Tuvalu because it seems to us that he is heading towards the category of leaders who are dictators (they are above the law)!"

The letter continues with a request that the Governor General consider using his power to decide the matter in his own deliberate judgment under section 52 and section 17 of the first Schedule of the Constitution.

Still nothing happened and so, on 20 June 2003, the applicant filed an originating summons seeking declarations that the Governor General shall call a meeting to elect the Speaker and summon a special session of Parliament.

As it happened, the Governor General had, on 19 June 2003, issued a notice for the meeting to elect a Speaker although the applicant received it only after he had filed the originating summons. The meeting was held on 21 June 2003. Two candidates were proposed and Hon Faimalaga Luka, one of the signatories to the letters of 10 and 21 May was elected. The other candidate, Hon Otinielu Tausi, had been nominated by the government and was defeated.

Clearly the matter of the election of the Speaker, the subject of the first three declarations sought, is now moot and the court needs only to deal with the question of summoning Parliament, However, the circumstances of the summoning of the meeting and the election of the Speaker are still relevant to that issue. The applicant points out that the voting figures support the contention of the signatories to the letters that they still control a majority of Members of Parliament and that the Prime Minister's advice to the Governor General, by not allowing the meeting to be called as soon as practicable as is required by section 104, indicates the Prime Minister's intention is to delay.

The applicant brings this action on behalf of all the signatories and the respondent is sued as the representative of both the Prime Minister and the Governor General.

The summoning of meetings of Parliament is covered by section 116 of the Constitution:

"116

(1) Subject to this section, Parliament shall meet at such places in Tuvalu, and at such times, as the Head of State, acting in accordance with the advice of the Cabinet, appoints.

(2) Sessions of Parliament shall be held in such a way that no period of 12 months intervenes between the end of one session and the beginning of the next.

(3) A session of Parliament shall be appointed to begin as soon as practicable after the declaration of the results of a general election, and in any event within three months after the declaration.

(4) In the event of a failure to comply with subsection (2) or (3), the Speaker shall call a meeting of Parliament, unless in the meantime a meeting has been called under subsection (1)."

On 2 July 2003, in accordance with section 116(1), Cabinet advised the Governor General to call a session of Parliament commencing on 4 November 2003. The last sitting of Parliament finished on 29 November 2002 and so the respondent suggests Cabinet's advice did not breach the requirements of section 116(2). I would comment that I am not sure subsection (2) has any relevance to meetings, as opposed to sessions, of Parliament but, in the present case, it is not necessary to determine that issue.

The applicant's case is that the Prime Minister no longer commands a majority of the Members of the House. It is denying the wishes of the electorate to fail to call Parliament for so many months and, in that way, extend the life of what is in effect a minority government. By November 2003, the country will have been run by a minority government for nearly 9 months. During that period many matters have been, and will have to be decided by a government without the support of the House and may bind the rightful government for the future.

The Head of State of Tuvalu is the Sovereign, Queen Elizabeth II, and by section 54 of the Constitution, her representative here is the Governor General. Section 58 requires the Governor General to perform the functions of the Head of State when the Sovereign is outside Tuvalu or otherwise incapacitated.

The powers of the Head of State are set out in section 52 (1) of the Constitution:

"52. (1) Subject to section 17 of Schedule 1, in the performance of his functions under this Constitution or any other law the Head of State shall act only in accordance with the advice of -

(a) the Cabinet; or

(b) the Prime Minister or another Minister acting under the general or special authority of the Cabinet, except whom he is required to act -

(c) in accordance with the advice of any other person or authority (in which case he shall act only in accordance with that advice); or

(d) after consultation with any person or authority, including the Cabinet (in which case he shall act only after such consultation); or

(e) in his own deliberate judgment (in which case he shall exercise an independent discretion), or

where this Constitution obliges or specifically permits him to act in a particular way."

Section 17 of the first Schedule, to which these provisions are subject, provides:

"17. (1) In this section-

"the authorising provision" means the relevant provision of this Constitution referred to in subsection (2)(a).

"the prescribed authority" has the meaning given to it by subsection (2)(a).

(2) This section applies in a case where-

(a) a provision of this Constitution requires or permits the Head of State, or any other person or authority, (referred to in this section as "the prescribed authority") to act -

(i) in accordance with the advice of some other person of authority; or

(ii) after consultation with some other person or authority; or

(iii) subject to the approval of some other person or authority; and

(b) The prescribed authority, acting in his or her or its own deliberate judgment, certifies in writing that he or it is satisfied that it is impracticable, in the circumstances, to comply, or to comply fully, with the authorising provision.

(3) In a case to which this section applies the prescribed authority, acting in his or its own deliberate judgment, may act after consultation with such person (including any available persons, and any available members of the authority referred to in subsection 2(a)(i), (ii) or (iii)) as he or it, acting in his or its own deliberate judgment, thinks proper to consult.

(4) If fn a case to which this section applies the prescribed authority acts as provided for by subsection (3)-

(a) he or it shall, as soon as practicable, report the circumstances to-

(i) the relevant person or authority referred to in subsection (2)(a)(i), (ii) or (iii); and

(ii) the Speaker, for presentation to Parliament; and

(b) as soon as practicable, and to extent that it as practicable, the authorising provision shall be complied with."

Section 18 provides that where any act is to be done in the Governor General's deliberate judgment, its exercise must not be arbitrary or capricious.

As has been stated, the applicant's case is that the Prime Minister has lost the mandate of the electorate to run the country and is delaying what the applicant suggests is inevitable defeat on a motion of no confidence. The last sitting of Parliament finished on 29 November 2002 and, by advising the recall of Parliament on 4 November 2003, the government is delaying it as long as it can without breaching section 118(2). It is suggested that where the Prime Minister has lost majority support in the House he should resign and permit an election for a new Prime Minister.

The respondents accept that the office of the Prime Minister must become vacant if his government loses the confidence of the House but, under the Constitution, the only method of determining that is by a motion of no confidence which can only be decided by a vote in the House. Until and unless there is a vote of no confidence, the government is entitled, and is indeed under a duty, to continue in office. As long as it is in office, part of its duty is, through Cabinet, to advise the Governor General under section 116(1) of the time and place of the next meeting of Parliament and that, the respondents point out, has been done.

The applicant also suggests the provisions of section 116(3) may provide an answer. He suggests that, where a by-election results in the government losing the support of the majority of the members of Parliament, the procedure under section 116(3) should apply as if this had been a general election. Clearly the terms of subsection (3) are intended to ensure a government is established in accordance with the election result as soon as possible. Whilst the applicant's suggestion is understandable that a similar spirit should be applied after any election which changes the balance of votes in the House, the wording of the subsection simply does not allow such an interpretation. The section specifically mentions a general election only and, under the expressio inius rule, must be taken as having been intended to exclude any other election.

However, the main thrust of the application is that the Head of State, in the person of the Governor General, has the power to decide the matter in his own independent judgment. The letters and the election of the Speaker have shown that the present government no longer commands the support of a majority in the House and so the applicant submits the Cabinet must have lost the right to advise the Governor General about the timing of the next session of Parliament. In those circumstances, he should certify under section 17(2)(b) that it is impracticable to comply with that advice and then use his other powers under section 17 to exercise an independent discretion in making his own judgment as to the proper time to summon Parliament.

Counsel for the applicant cites the Solomon Islands case of Ulufa'alu v Governor General [2001] 1 LRC 425 as support for the suggestion than the present government has forfeited its right to advise under section 116(1). The facts of that case are similar to this. The Prime Minister lost his majority through the defection of a number of his supporters at a time when Parliament was not sitting and the opposition members asked the Governor General to summon a sitting of Parliament to allow a vote of no confidence to take place. Muria CJ, having referred extensively to an earlier Court of Appeal decision in Hilly and others v Governor General and another [1994] 2 LRC 27 stated that cases in Solomon Islands had firmly established that the central feature of government under its Constitution is majority rule and suggested it was inconsistent with that principle for a government without a majority to remain in office well knowing that it no longer has majority support. He then quoted from an unreported Solomon Islands Court of Appeal case Speaker v Nori:

"The result could be that the mechanism provided by the Constitution for the removal of a government may become inoperative, and even a government which does not have the confidence of the House may continue in an unchallenged position far many months. In our judgment such a conclusion would be quite unsatisfactory and inconsistent with ... the principle of majority rule in a parliamentary democracy. Mr Nori pressed us with the proposition that it is our duty to interpret the Constitution in a way which advances rather than impedes the principles of majority government."

Muria CJ then concluded, at 437:

"If the criterion for identifying the candidate for Prime Minister is an absolute majority then it follows in my judgment that the same criterion also apply as to the right to govern. It is a practical principle of government ... referred to in Hilly's case where it is pointed out that-

'A Prime Minister who hangs on to power while conceding that he had no majority is in no position to insist the Governor General's functions can only be exercised on his advice.'

Although the Prime Minister has not conceded that he has only 24 Members of Parliament, the evidence clearly demonstrates that he only has 24 Members of Parliament. That being so, he must be in the position described by the Court of Appeal as being not in a position to tender advice to the Governor General."

In Hilly's case, Connolly and Los JJA suggested that by remaining in office after he has lost the support of the majority of Members, the Prime Minister only "remains in office ... as a Prime Minster who has forfeited his right to advise the Governor General and this crisis will be resolved in the place where the Constitution intends it to be solved - in the National Parliament."

Whilst it may be that the principles statted in those cases are appropriate to many countries including Tuvalu, the question for the court is not one of principle. It is whether our Constitution allows such a conclusion. I do not consider it does.

It is clear that the only procedure to ascertain whether the government has lost its majority is by a vote in Parliament on a motion of no confidence. Apart from such a vote, the Constitution provides no mechanism whereby it can be discovered with any certainty that the government has or has not the support of a majority of the Members of the House. For the same reason, even when the Governor General is advised a majority of members oppose the government, he can only be sure that is the case if and when there is a vote in the House and, until then, he will continue to receive the advice of the Cabinet as part of the government of the day. Even if, as occurred in Hilly's case, the Prime Minister admits he does that have the support of the majority but still does not resign, there is nothing in our Constitution to support the contention he has, by that, forfeited the right to advise the Governor General.

The respondent relies on this and also cites Hilly's case as authority for the proposition that a Prime Minister who has lost the support of the majority of Members of Parliament is nevertheless Prime Minister although with a minority government. Our Constitution requires the Governor General to act in accordance with the advice of Cabinet and there is no suggestion that in order to tender such advice, the Cabinet has to represent a majority government. I accept that is correct.

The question upon which this case hinges is whether the Governor General has the power to summon Parliament without, or in the present situation, in disregard of the advice of Cabinet and, if so, the circumstances which could allow the use of that power.

As I have stated, the first three declarations sought by the applicant relate to the election of the Speaker and are moot. The declarations relating to the power to summon Parliament are numbers 4 - 7:

4. That under section 116(1) of the Constitution, the Head of State do summon a special session of Parliament within 14 days as the existing Cabinet is unable to govern as it does not have an absolute majority in Parliament and has not done so since 17^th February 2003;
   
5. Further, that the right to give the advice contemplated under section 116(1) by Cabinet is lost when the majority is lost. In such circumstances, the Head of State, where the existing machinery of government becomes unworkable or impracticable, may summon Parliament without the advice of the Prime Minister or Cabinet pursuant to section 52(1) and Schedule 1 section 17;
   
6. That although section 116(2) provides that Parliament must sit not less than once every year", the Head of State must where he is satisfied that the majority has been lost and ascertained that under section 59(2) from the Prime Minister summon and convene Parliament pursuant to section 52(1) and Schedule 1 section 17 acting in his own deliberate judgment.
   
7. Further, and in the alternative, that under section 118(3), Parliament must be called, as soon as is practicable after the results of a by-election are declared where these result in the loss of a Parliamentary majority, and the ability to govern and under section 116(4) the Speaker can convene Parliament to do so in default thereof."
   

Declaration 4 is phrased in terms of an order. That is inappropriate in a declaration and I decline to make it. In any event, I have other objections to the way in which it is phrased. The main thrust of the applicant's case is that a situation has arisen which requires the Governor General to make a decision in his own deliberate judgment and I do not consider that the Constitution gives the court any power to order how the Governor General shall do that. The right of the court to consider how the Governor General exercises his power in this case would only arise after, and if, he makes a decision and is limited to the matters in section 18(b) of Schedule 1. The declaration would also require the court to determine that the existing Cabinet is unable to govern in the present circumstances; a contention unsupported by the evidence or the submissions before the court.

Declaration 15 raises two separate propositions. I have already dealt with the first, that the right to give advice is lost when the majority is lost. The second is based on the suggestion that, once the right to advise is lost, the existing machinery of government becomes unworkable or impracticable. In view of my decision on the first part, the second must fail but, in any event, I cannot accept that it has been demonstrated that either the loss of the majority (as in declaration 4) or the loss of the right to advise the Governor General under section 116(1) (as in declaration 5) means that the government is unable to govern or that the machinery of government becomes unworkable. Indeed the main reason given by the applicant for bringing this action in court is stated to be that, although this is in reality a minority government, it will continue to govern and operate the machinery of government.

The second of the contentions in declaration 5 is repeated in declaration 7. The only provision in the Constitution dealing with the question of the ability of the government to govern or, more accurately, of a Prime Minister to remain in office, is section 63 and, in particular, section 63(2)(f), namely when he has been shown no longer to have the support of a majority of the Members of Parliament. That, of course, is the core of the respondent's case - that the only way in which such a situation can be determined is by such a vote and that cannot now happen until Parliament sits in November.

As I have stated, I consider the real, and only, question in this case (which is adverted to in declaration 6) is whether the Governor General has any power to appoint any date for Parliament to meet other than in accordance with the advice of Cabinet and the situation which will allow him to exercise such a power. That is the matter I consider I must determine but before I do so I must again take issue with the form of declaration 6. It asks the court to declare that, where the Governor General is satisfied that majority support has been lost, he must summon and convene Parliament acting in his own deliberate judgment.

The declaration in the words used cannot succeed. The Constitution does not provide any method of ascertaining that a Prime Minister has lost the support of the majority other than by a motion of no confidence so there is no way in which the Governor General can be so satisfied. Should the Governor General determine that he has reason to act without, or in this case contrary to, the advice already given by Cabinet, this court has no right to make a declaration which in effect directs how he shall then exercise his own deliberate judgment. This case involves constitutional principles of great importance and the applicant does not help his case by seeking declarations in terms which in themselves require unconstitutional orders.

I have already dealt with the subject of declaration 7, namely the effect of section 116(3).

However, the case having been brought before this court, I consider the court must make a declaration which will settle the constitutional position in the factual circumstances agreed by both parties. The determination that I must make will, I suggest, be found in the answers following questions I have formulated:

1. When Parliament is not sitting and the Governor General has been advised by Cabinet to appoint the time of the next meeting but, in the meantime, receives credible evidence suggesting the Prime Minister has lost his majority in the House so the Cabinet from which he received the advice represents a minority government, is he entitled, under section 17 of the first Schedule, to determine that it is impracticable to comply with that advice and so to certify?
   

2. Before making, and in order to make, such a determination, has he the power:

(a) to require the Prime Minister to inform him of the situation in relation to the likely result of a vote of no confidence or any other matter relating to the government; and

(b) to consult with any other persons or bodies?

The Constitution vests the exclusive authority of the State in the Head of State and, therefore, in the Governor General and the way it is exercised is set out in section 52. That section makes it clear that, where the Head of State is required, as in section 116(1), to act in accordance with the advice of Cabinet, he shall only act in accordance with that advice. That is a mandatory restriction and is subject only to section 17 of the first Schedule. It is in that section that the applicant's remedy, if one exists, must be found.

There is no authority given to the court to decide this issue. It lies entirely with the Governor General.

In this case, it is accepted that the Governor General was been advised by the letters of 10 and 21 May that the Prime Minister can no longer expect to receive the support of a majority of members of the present Parliament. That a majority of members were ready and willing to vote in accordance with the sentiments expressed in those letters was supported by the result of the election of the Speaker. However, there is only one method by which a Prime Minister can lose the confidence of the House and that is by a vote in Parliament. Thus, however strong the evidence, the Governor General is not entitled to determine that the Prime Minister has lost the confidence of the House. The question the Governor General will need to consider in this case is whether the evidence is credible enough to suggest that he should not allow the situation to persist without testing it in Parliament. If he reaches that conclusion, he must be impracticable to comply with the advice Cabinet has given.

What, then, would be the basis upon which the he could come to such a conclusion?

In the exercise of any power under the Constitution, the overriding concern of government should be to recognise and act in accordance with the spirit and intention of that law. The Head of State is recognised by the Constitution, in section 50, as a symbol of the unity and identity of Tuvalu and must clearly have a similar concern that the spirit and intent is applied.

By section 1, Tuvalu is a sovereign democratic state governed in accordance with the Principles set out in the preamble. The Interpretation Act, section 7, provides that the preamble shall be used to assist in explaining the purport and object of the law to which it is the preamble. More specifically, the Constitution itself in section 4(2) provides-

"(2) In all cases, this Constitution shall be interpreted and applied consistently with the principles set out in the Preamble."

The fifth principle set out in the preamble to the Constitution explains that:

"In government, and in social affairs generally, the guiding principles of Tuvalu are - agreement, courtesy and the search for consensus, in accordance with traditional Tuvaluan procedures, rather than alien ideas of confrontation and divisiveness; the need for mutual respect and co-operation between the different kinds of authorities concerned, including central government, the traditional authorities, local government and authorities, and the religious authorities."

Section 4(3) is more specific:

"(3) Subject to subsection (2), this Constitution shall be interpreted and applied in such a way as to achieve the aims of fair and democratic government, in the light of reason and experience and of Tuvaluan values." (my emphasis)

Those overriding principles will, of course, always be borne in mind by the Governor General as the representative of the Head of State but what can he do if he feels that the government is acting contrary to those principles? He certainly has no right to take any arbitrary action neither can he act on his own initiative unless the Constitution gives him that right. Section 17, to which his performance of all his functions is subject, does give him that right - the right to act in his own deliberate judgment. By section 18, his decision must not be arbitrary or capricious which means, inter alia, that he has to have a reason for making it and I would suggest that a fundamental reason must be to uphold the spirit and intent of the Constitution if he feels that is not being done.

If there is evidence which reasonably suggests that the spirit of the Constitution is not being observed by Cabinet when giving its advice, that could be sufficient reason for determining that it is impracticable to comply with its advice. If the evidence suggests the advice is motivated by a desire to avoid possible defeat in Parliament, it would flout the spirit of section 4(3).

Can it really be considered that a Prime Minister is applying the Constitution to achieve the aims of fair and democratic government if he believes he has lost his majority but extends his time in office by delaying the inevitable vote? Even if the period between the sittings of Parliament are no longer than usual, such delay in the face of compelling evidence may still point to failure to achieve the aims of section 4(3). If it is longer than has previously been the case, it would point more strongly to such a conclusion.

I am satisfied the answer to the first question I have formulated is "yes". The circumstances could amount by to sufficient reason not to comply with the authorising provision, section 116(1), but it is a matter for the Governor General to judge in his independent discretion.

I would also suggest that in view of the requirements of section 4(3), if that Governor General has reliable information which suggests the advice he has received may be inconsistent with the aim of fair and democratic government, he is under a duty to consider whether it is impracticable to act in accordance with it. He cannot simply ignore it. To decide to ignore it would amount to an arbitrary decision and would be a breach of section 18.

The second question asks where, if he feels he needs more information in order to decide whether it is impracticable to comply with the advice, can he seek it?

There are very few provisions in the Constitution which give the Governor General the right bra act entirely on his own initiative untrammelled by conditions or restrictions but section 59 is such a provision:

"59. The Governor General, as the representative of the Sovereign, is entitiled-

(a) to be informal by the Prime Minister concerning the general conduct of the government of Tuvalu; and

(b) to be given by the Prime Minister any information that he asks for with respect to any particular matter relating to the government of Tuvalu."

Clearly, the Governor General has the right to ask for information at any time and the Prime Minister is obliged to give it. In the present circumstances, the Governor General may consider it sensible to seek information about the situation referred to in the letters of 10 and 21 May and demonstrated in the election of the Speaker to assist in determining whither it would be impracticable to comply with the advice given under section 116(1).

Thus the answer to question 2(a) is "yes".

What can he do if he still considers there is reason to consult further? Section 17(3) allows him to consult with any person he considers he might properly consult before acting. It gives him power to hold wide consultations but it applies only after he has made, and certified, a decision under section 17(2) that it is impracticable to comply, in the present case, with the advice of Cabinet.

Thus the answer is question 2(b) is "no".

The purpose of any consultations under subsection (3) is to assist him in concluding the best way to act once he has decided it is impracticable to act in accordance with the advice of Cabinet. It may be that in a situation such as the present, he would consider consulting with the Members of Parliament or with the Clerk of Parliament. It is entirely a matter for the Governor General. Such consultations would be directed to determining the time he considers best to appoint for the next meeting of Parliament not to the practicability of accepting Cabinet's advice because he will, of course, have already decided that.

It is not for the court to tell the Governor General how he should reach his decision. He must do that in his own deliberate judgment. However, I would suggest, that, if his consideration of the evidence still leaves him uncertain what is the true support for the Prime Minister in the House, he should take the course which allows it to be determined with certainty and that must be done in Parliament. Fair and democratic government would require it to be determined as soon as possible and that would to impracticable if he was to comply with the present advice given under section 116(1).

Section 6(1) of the first Schedule also provides:

"6. (1) Where no time is prescribed by this Constitution within which an act is required ... to be done, the act shall ... be done with all convenient speed ..."

Finally, the last declaration reads:

"8. Further, and in the alternative that the Prime Minister where he has lost majority support should resign and permit an election of Prime Minister to take place in accordance with section 63."

I deal with it briefly. In a country whose Constitution seeks to achieve a fair and democratic government, it must be contrary to the spirit of the Constitution for a Prime Minister who knows that he has actually lost his support in the House to try and stay in power by delaying the meeting of Parliament at which the loss of confidence would be confirmed. To that extent the principles are the same as those expressed in the Solomon Islands cases cited above. Whether it is unfair or undemocratic will, of course, depend on the circumstances of the case. Thus, in the present case, the Prime Minister could not be said to have flouted the aspirations of section 4 by remaining in power prior to the by-elections in May even though at that time he had clearly lost his majority but, once those elections appeared to have changed the balance of power, it would accord with the principles of fair and democratic government to allow Parliament to decide as soon as possible.

However, I decline to make the declaration because it is clear that there is no requirement in the Constitution for a Prime Minister to resign in such circumstances.

Counsel for the respondents argues that the delay in this case is justified because it allows the Prime Minister time to persuade some of the Members who oppose him at present to come across to his side. I accept that any politician may attempt to do that but it is not fair to hold up the normal workings of democratic government solely for such a purpose. The electorate is entitled to expect its wishes to be reflected in the composition of government as soon as practicable after it has voted. That must apply whenever the result of any election appears to have changed the balance of power in Parliament.

The sequence of events for the Governor General, therefore should be:

1. Decide in his own deliberate judgment on the evidence he has and, if he asks for it, any further information from the Prime Minister, whether it is impracticable to comply with the requirements of section 116(1) because it would be inconsistent with the aims of fair and democratic government;
   
2. If he so decides, he will certify that decision in writing;
   
3. If he does so certify, he may then consult with such persons or bodies he considers proper to assist his decision what is the best action to take in relation to the time of the next meeting of Parliament;
   
4. Take any action he considers to be appropriate under Section 116(1) but acting in his own deliberate judgment and not in accordance with advice from Cabinet;
   
5. Should he decide to take action, he must as soon as practicable, report the circumstances to Cabinet and the Speaker. In the circumstances of this case, he would not need to take any further action under section 17(4)(b).
   

CHIEF JUSTICE

Dated: 6^th August, 2003.