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Waena v Attorney General [1989] SBCA 2; CA-CAC 001 of 1989 (11 December 1989)

SOLOMON ISLANDS COURT OF APPEAL

Civil Appeal Case No. 1 of 1989

NATHANIEL WAENA

-v-

THE ATTORNEY-GENERAL

Solomon Islands Court of Appeal
(Connolly, P., Kapi and Savage JJA)

Hearing:
Judgment: 11th December 1989

J. Muria for the Appellant
R. Teutao for the Attorney General

JUDGMENT OF THE COURT: This appeal arose out of the election of the Speaker of the National Parliament in March 1989 following the general election and relates to a ruling made by the person presiding at the commencement of the first sitting of Parliament. The background to, and the circumstances of the making of, the ruling may be shortly outlined as follows.

The Standing Orders of Parliament provide, in O.5, for the election of a Speaker and para. (1) provides that the Speaker shall be elected at the first sitting of Parliament after a general election. Section 65 of the Constitution includes a provision that at the first sitting, and until a Speaker is elected, the person who last held office as Speaker shall preside. Parliament sat on the 14th March to elect a Speaker and the ruling that was challenged in these proceedings was made by the person presiding in terms of s.65. The ruling was to the effect that the nomination of Mr Kabui, who was one of five persons who had been nominated for election, was invalid and his name was thus to be deleted from the list of candidates prepared in terms of para. (4) of the Order.

What had happened was that at the commencement of the sitting but before the ballot for Speaker was held the Member for Central Malaita, Francis Saemala, on a point of order objected to the candidacy of Mr Kabui on the ground that he still held a public office. It is clear that at the time Mr Kabui was the Attorney General, as indeed the appellant had conceded that this was so, and equally clear that the office of Attorney General is a public office for s.42(1) of the Constitution says so. It appears that the question of Mr. Kabui's eligibility had already been considered by the Prime Minister who had arranged for the Chief Legal Officer in the Attorney General's Chambers to attend at Parliament to give his opinion on the matter, which he did when the question was raised. The previous Speaker, as the person presiding, then made the ruling referred to earlier. This was followed by the ballot being held and Mr Waeta Ben was elected Speaker on the first vote.

In the High Court the appellant had sought a number of declarations relating to the validity of the nomination of Mr Kabui and the ruling made by the previous Speaker that Mr Kabui's name be removed from the list of candidates. The final and decisive declaration sought was that the election of Mr Waeta Ben was null void. The Chief Justice declined to make most of the declarations sought and in particular declined to declare that the election of Mr Waeta Ben was null and void. Before us Mr Muria made a number of submissions on behalf of the appellant. The main thrust of his argument, in an abbreviated form, was as follows: s.64(1) of the Constitution provides that Parliament shall elect a Speaker "from among persons who are qualified for election as a member of Parliament". Section 48 provides the qualifications which are that the person shall -

(a) be a citizen of Solomon Islands; and

(b) have attained the age of twenty-one years.

Section 48 is expressed to be subject to the further provisions contained in s.49 which are that no person shall be qualified who comes within any one of a number of specified categories, including that of holding or acting in any public office, but it was argued that s.49 did not apply to s.64(1), being a disqualifying provision which did not derogate from s. 48 in relation to its application to s.64(1). It followed, so it was said, that the previous Speaker's ruling was wrong since Mr Kabui satisfied the qualifications required by s.48. Mr Muria also made a number of other submissions relating to the power of the previous Speaker to make a ruling at all and the giving of advice to Parliament by the Chief Legal Officer. At this point we record that we made it quite clear during the course of the argument that we regarded the submission that s.49 did not apply as quite untenable. In our view it is plain that if a person comes within one of the categories contained in s.49 that person is not qualified for election as a member of Parliament in terms of s.64(1)(a).

At the conclusion of counsel's submissions and, indeed, it was during the course of his reply to the submissions of Mr Teutao for the Attorney General, Mr Muria made it clear that the appellant did not seek to overturn the judgment of the High Court and he certainly did not seek a declaration that the election of Mr Waeta Ben was null and void. He stated that the appellant was quite content that Mr Ben's election should stand. In these circumstances it appears to us that the appellant is not in fact seeking to appeal against the judgment but merely seeks to obtain the opinion of this Court upon the reasoning by which the Chief Justice reached the conclusion he did. We are not prepared to do this; it is not part of the function of this Court to give advisory opinions and we decline to do so.

The appeal is accordingly dismissed.

BY THE COURT
(per P.D. CONNOLLY P.)