The two basic reasons for making the Order suspending the Area Council were the current
bad financial situation experienced by
the Government and the SIAC Government policy of
reviewing the present Provincial Government system.
Case for the applicant
style="margin-top: 1; margin-bottom: 1">On behalf of the applicant Mr. Nori advanced three hree contentions. In the first place,
Mr.
Nori argued that section 47 of the Provincial Government Act did not empower the
Minister to make the Order which he made. Secondly, Counsel argued that in making the
order, the Minister
had acted in breach of the rule of natural justice. Thirdly, Mr. Nori
submitted that the Minister had acted unreasonably by
relying on grounds which were
unreasonable.
Case for the respondent
Mr. Mali, in support of the MinisMinister's Order contended that section 47 of the
Provincial Government Act is wide enough to empower the Minister to make the order which
he made. As such when he made the Order, the Minister was acting
within his power under
that section. Counsel further submitted that the reasons for making the order were set out
in the
Minister's affidavit and that those reasons justified the action taken by the
Minister.
Section 47
As the Minister's Order was made pursuant to his power under section 47 of the Act, it
is worth setting out that provision. Section
47 provides as follows:
"47. (1) Notwithstanding the provisions of this Act or other law, the Minister may
by order published in the Gazette,
make such provisions as appear to him necessary or
expedient for the purposes of -
(a) providing for any unforeseen or special circumstances; or
(b) resolving, determining or adjusting any doubt, question or matter, which may arise
in ren to the application or implementation
of this Act or in rein respect of which no
provision or effective provision has been made in or under this Act.
(2) An order made under subsection (1) shall be subject to negative resolution."
There is clearly given to the Minister under this section a wide power which he can use
to "make such provisions as appeared to him necessary or expedient" for
the purpose specified in subsection (1)(a) and (b). Mr. Nori's contention, however, is
that the words "necessary or expedient" in that provision do not confer
power on the Minister to suspend Area Councils. Councils are creatures of Provincial
Assemblies
and so matters affecting Area Councils fall within the competence of the
Provincial Government. I accept that Area Councils
are creatures of the Provincial
Assemblies but there can be no doubt also that the Minister has controlling authority over
Provincial Assemblies in Solomon Islands. Thus, the Area councils being part of the
Provincial Government system, is under
the controlling umbrella of the Minister or in the
last resort, the National Parliament. One can see this general controlling
power when
looking at the various provisions of the Provincial Government Act such as section
44(1) which empowers the Minister to suspend Provincial Government; sections 30(2) and
32(1) which empower
the Minister to withhold assent to an Ordinance, including Ordinance
setting up the Area Councils, passed by the Provincial
Assembly: section 35 (2) which
empower the Minister to limit, suspend or even cancel Appropriation Ordinance for a
Province;
and section 47(1) which is a legislative permission, empowering the Minister by
order, to "make such provisions as appear to him necessary or expedient"
for the purposes of the matters set out in paragraphs (a) and (b) of subsection (1) which
may arise in relation to
the application or the implementation of the Act or in respect of
which no provision or effective provision has been made under
the Act. This overall
control over the Provincial Government system is envisaged under the Constitution
which provides for the establishment of Provinces and authorising Parliament to make laws
for the setting up of the Government
system for those Provinces. Thus the Provincial
Government Act was enacted with the clear scheme that the Provincial Government is
responsible to the Minister who in turn is answerable to
Parliament on Provincial
Government matters.
Mr. Nori suggested that section 47 does not provide for the power to suspend Area
Councils but only to resolve doubts arising
in relation to the application of the Act. It
is worth noting that, section 47(1) starts with the words, "Notwithstanding the
provisions of this Act or any other law" which words must be taken, in my view,
to mean that the Act or any other law shall not be an impediment to the exercise
by the
Minister of his power under this section.
On this construction, the provisions of the Act or any other law which must also include Ordinances passed by the Provincial Assembly,
cannot impede the Minister's
ex exercise of his power under section 47(1) "as appear to him necessary or expedient"
provided that his action can lawfully be regarded as coming within the matters provided in
paragraphs (a) and (b)
of the subsection. I think this is really the test here, that is,
whether the action taken by the Minister is lawfully within
the matters set out in
paragraphs (a) or (b). If it is, then whether it is necessary or expedient is not for the
Court
to decide. It is therefore necessary to consider the scope of paragraphs (a) and (b)
of section 47 (1) of the Act.
Under paragraph (a), the Minister is empowered to make provisions for "any
unfen or special circumstances." Those words are of wide import and they are
not not defined in the section. It must, however, be observed that such
unforeseen or special
circumstances must be those arising in relation to the application or implementation of
the Act.
It will also be observed that under paragraph(a), the Minister can also make
provisions to provide for unforeseen or special
circumstances where no provision has been
made under the Act. That is clearly a very wide power and where it is necessary or
expedient to exercise it, the Minister is authorised to do so.
<
Mr. Manetoali's contention is that the Government was and still is experiencing severe
financial situation to run the country.
As a measure to help alleviate this financial
burden, the Government had decided that it would be in the interest of the country
to
temporarily suspend Area Council. This is the special circumstance which had arisen in
connection with the implementation
of the Act under which the Ordinance establishing the
Area Councils were made. In addition Counsel argued that no provision
has been made in the
Act to specifically take the action necessitated by the unforeseen or special
circumstances in the
present economic situation of the Government. Hence, Counsel
submitted, section 47 provides for the legal machinery to remove
this difficulty created
by the lack of provision or effective provision in the Act.
style="margin-top: top: 1; margin-bottom: 1">Mr. Nori's contention on the other hand is that the difficulty provided for under
section 47 relates to statutory application of the Act and not to financial burden. So
that if the Government felt that
the Area Council's are too expensive, the Minister should
take a Bill to Parliament to amend the law to provide for the power
to suspend the Area
Councils. By invoking section 47 to suspend all the Area councils, the Minister acted
unlawfully and
that is the position maintained by Mr. Nori throughout.
In a perfect world everything is catered for and will be in order. But in the world in which we now live, unfortunately, there are
so many unforeseen circumstances which belie
lie
those responsible for our governance, especially those shouldering the responsibility
of
ensuring peace, order and good government in our country. As such permission is
given by law to provide for unforeseen or special circumstances or for resolving the
difficulties such as the suspension of Area Councils where no provision has been
effectively made under the Act. So that
despite what is a strong case ably contended for
by Mr. Nori, I find myself convinced that the construction placed on section
47(1)(a) and
(b) favours the position contend for by Mr. Manetoali. I hold that section 47(1) empowers
the Minister by
order, to make provisions for suspending the Area Councils.
Mr. Nori's second argument is that the Minister, even if he has the power to do what he
dided in breach of the rule of natural
justice by not giving notice to the Provincial
Gov Governments before suspending the Area Councils. Counsel submitted that
in this case the
Western Provincial Government had not received any formal notification of the suspension
of the Area Councils,
as a result the Provincial Legal Adviser based in Gizo attended the
Marovo Area Council meeting on 12 May 1998 with the understanding
that the Area Councils
were still in place. This is said to be clearly evidence of the breach of the rule of
natural justice
in this case. It is true that the audi alteram partem rule
is not to be readily excluded in a situation where the competent authority's discretionary
power is exercisable when
it "appears to" him to be necessary or
expedient or when he "is satisfied." See Durayappah -v- Fernando
[1967] 2 AC 337, 348 also Stevenson -v- United Road Transport Union [1977] 1 CR
893. But as had been pointed out in Essex CC -v- Ministry of Housing and Local
Government (1967) 66 L.G.R 23, the making of a subordinate legislative instrument need
not be preceded by notice or hearing unless the parent Act so provides.
See also Bates
-v- Lord Hailsham of St. Marylebone [1972] 1 WLR 1373 which was a case involving the
making of legislative orders for solicitors' remunerations. So the audi alteram partem
rule does not have to be observed in such a case especially, as in this case, where the
Minister was surely exercising
his ministerial function when he made the order pursuant to
his power under section 47(1) of the Act. While the Provincial Governments
might be
prejudiced by the Minister's order, I do not think they have any implied right to be heard
before the Minister
could make his order. Even if there is implied right to be heard in
the matter, a breach of the rule would not entitled the
applicant any remedy in respect of
such a breach in this case.
The third contention relied on by Mr. Nori is that the Minister acted unreasonably when
he based his order e grounds set. out
in his affidavit. Those grounds argued Cued Counsel,
were unreasonable. However the reasonableness of the Minister's action
must be a matter
which led him to decide whether it was "necessary or expedient" for him
to exercise his power. As I have found that it was for the minister to decide what was
necessary or expedient,
this Court cannot delve into the reasons why the Minister felt it
was so necessary or expedient to do what he did. Provided
the subject of the order was
lawfully within the parameters of section 47, the reasonableness of the Minister's action
is not for this Court to decide. It would be otherwise if the subject matter of the order
was not lawfully within the scope
of section 47.
In the light of all that had been said, and despite the strong contention ably put by
Mr. Nori on behalf of the applicant. my
construction of section 47(1) favours the position
contented [sic] for by Mr. Manetoali on behalf of the Minister. In those
circumstances,
the Court would have to answer the questions posed in paragraph (1) in the affirmative.
The second question posed for the Court's determination is whether the suspension of
the Area Cls invalidated the determination
of the Marovo Area Council made on 12 May
1997. It isIt is obvious from the evidence before the Court that the Western Province
Government authorities did not have any formal notification of the Minister's Order.
Certainly the Marovo Area Council
did not know of the suspension Order and so on 12 May
1997 it sat at Seghe to consider the applicant's timber rights application.
The legal
adviser to the Western Province attended the Council's Meeting as legal adviser assisting
the Marovo Area Council
Everyone who attended, including the Marovo Area Council itself,
did so in good faith and in ignorance of the Area Council's
suspension. The parties has
[sic] accepted the authority and the actions of the Area Council in accordance with its
functions
under the FRTU Act. The effect of such a situation in law is that the acts done
must [be] regarded as valid although there is
truly no legal power for so doing at-the
particular time. Of course, this does not mean that the body concerned can act outside
the
law. This principle of common law known as the doctrine of de facto office exists
to give validity to acts of de facto body despite there may be defects in the
legality of its appointment status. The doctrine is founded, as a matter of policy
and
necessity, for the protection of the public and individuals whose interests may be
affected.
p style="margin-top: top: 1; margin-bottom: 1">In the case of Norton -v- Shelby County [1886] USSC 184; (1886) 118 US 425 which was applieIN
THE MATTER OF sections 27(2), 48 and 49(1) of the CONSTITUTION [1988-1989] S89] SILR 99
("The Governor-General's case") Field J. pointed out at page 441 that:
"The doctrine which gives validity to acts of officers de facto, whatever defects
there may be in the legality of their
appointment or election, is founded upon
considerations of plicy [sic] and necessty [sic] for the protection of the public
and
individuals whose interests may be affected thereby. Offices are created for the benefit
of the public and
private parties are not permitted to inquire into the title of persons
clothes [sic] with the evidence of such offices and
in apparent possession of their powers
and functions. For the good order and peace of society their authority is to be respected
and obeyed until in some regular mode prescribed by law their title is investigated and
determined."
and at page 444 the learned Judge further said:
"where an office exists under the law. it matters not how the appointment of the
incumbent is made, so far as the validity
of his acts are concerned. It is enough that he
is clothed with the insighnia [sic] of the office, and exercise its power
and
functions"
Those principles are sound and accepted as applicable in Solomon Islands. There is a
further matter to note and that is the acts
performed by the body de facto are
accepted as valid before its lawful position was determined. That has now been done and
any further acts done by the
Marovo Area Council as an Area Council from now on will not
be lawful unless the Minister's Order which suspended all Area Councils
is revoked and the
Area Councils restored.
Question 2 in the Amended Originating Summon is answered in the negative.
<Conclusion aion and Order
The questions raised in the Amended Originatingating Summon are answered:
1. Yes
style="margin-tgin-top: 1; margin-bottom: 1">2. No
As to the orders sought in paragraph 3:
(a) Refused
(b) Refused
(c) No order for costs.
Sse">Sir John Muria
CHIEF JUSTICE
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