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Moti v Attorney General [2007] SBHC 161; HCSI-CC 481 of 2007 (22 December 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case 481 of 2007

JULIAN RONALD MOTI

- v -

ATTORNEY-GENERAL
(REPRESENTING THE MINISTER
FOR COMMERCE, INDUSTRIES
AND EMPLOYMENT)

(Palmer CJ.)

Date of Hearing: 22nd December 2007
Date of Ruling: 22nd December 2007

Pacific Lawyers (Wilson Rano) for the Applicant;
Solicitor-General (Reginald Teutao) as amicus curiae.

Ex parte Application for Leave

Palmer CJ.:

The applicant, Julian Ronald Moti ("the Applicant") applies ex parte for leave under section 18(1) of the Constitution and Order 61A, rule 1 of the High Court (Civil Procedure) Rules 1964 (as amended) for an order to restrain the Attorney-General (representing the Minister for Commerce, Industries and Employment) from threatening, continuing or proceeding with the deportation and or expulsion and or removal of the Applicant from Solomon Islands.

The grounds relied on in his Statement Accompanying Application for Leave are as follows:

(i) his asylum status with effect from 2nd October 2006 by the Solomon Islands Government under the leadership of the former Prime Minister, Manasseh Sogavare;
(ii) his entitlements under section 3 of the Constitution;
(iii) the prohibition in section 5(1) of the Constitution;
(iv) the prohibition in section 7 of the Constitution;
(v) the stipulations of section 14(1) of the Constitution; and
(vi) the requirements of section 15(2) of the Constitution.

The application was supported by his affidavit filed today 22nd December 2007.

The brief background to this application arose from the issue of a judicial arrest warrant from Australia for the Applicant in relation to numerous child sex offences under the Crimes (Child Sex Tourism) Amendment Act of 1994, alleged to have been committed in Vanuatu with a minor below the age of 16 in 1997.

The first time that judicial arrest warrant surfaced was when the Applicant was en route to Solomon Islands via Port Moresby, Papua New Guinea to take up his appointment as Attorney-General of Solomon Islands when he was intercepted, arrested and placed in custody awaiting to be extradited to Australia. His passport was subsequently cancelled making it impossible to travel through normal channels. He was however given asylum status by the Government and on his release from bail sought sanctuary within the Solomon Islands High Commission in Port Moresby. Shortly thereafter he was flown out secretly to Solomon Islands via a Papua New Guinea Defence Force plane. He took up his appointment as the Attorney-General despite attempts, insistence and a formal extradition request from the Australian Government to have him returned to face the courts for the charges alleged against him.

The Solomon Islands Government under the leadership of the former Prime Minister, Manasseh Sogavare refused to grant the extradition request and the Applicant had been able to continue unhindered in his duties as Attorney-General until 13th December 2007 when Sogavare’s Government was toppled from power on a vote of a no confidence motion and a new Prime Minister elected and sworn in on 20th December 2007. The new Government under the leadership of Dr. Derek Sikua comprised a number of former Ministers and back benchers in the Government of Sogavare together with Opposition members.

From the outset, from the removal of the former Attorney-General, Primo Afeau and appointment of the Applicant as the new Attorney-General, the Opposition camp under the leadership of Fred Fono had consistently made it very clear that if they were to assume power they would grant Australia’s request to have the Applicant extradited. It comes as no surprise therefore when the new Government took office from 20th December 2007 that they expressly stated they would initiate proceedings to have the Applicant handed over to the Australian authorities.

The first ground relied on is that of an asylee. Whilst the Applicant has been granted asylum by the Sogavare Government his rights as an asylee were directly connected to his appointment as the Attorney-General of Solomon Islands. His appointment in turn as the Attorney-General is held at the pleasure of Government[1]. His rights as an asylee therefore must be subject to the continuation of his appointment as Attorney-General of Solomon Islands for that was the principal reason why he had been granted asylum status in the first place. But for his appointment as Attorney-General the Government of Sogavare had no interest in the Applicant.

Where the position of the new Government has been made clear by the new Prime Minister, that the Applicant will be handed over to Australian authorities to face the courts there, his rights as asylee must now hang in the balance.

The first ground relied on therefore as an asylee cannot confer any greater rights under the Constitution than that conferred to a foreigner employed in the service of Government and who in turn holds office at the pleasure of Government.

As a foreigner working for the Government of Solomon Islands his privileges and rights including those secured under the Constitution are protected by virtue of that appointment. If his appointment as Attorney-General goes, he loses any privileges and rights acquired as a Government employee, any rights acquired as an asylee in turn would automatically fall unless this new Government should decide otherwise, which is unlikely at this point of time. The future status of the Applicant in the country, including his privileges and rights therefore must await the ultimate decision of the new Government of the day.

The decision whether or not to retain the Applicant as the Attorney-General of Solomon Islands lies with the new Prime Minister and his Cabinet. That is an executive decision and not a legal question and is the prerogative of the executive Government of the day. The decision whether or not to revoke his asylum status lies with the Prime Minister and his Cabinet. That is ultimately tied up with his appointment as Attorney-General of Solomon Islands. The decision whether or not to grant the extradition request or to have him deported lies with the new Government of the day. There are proper procedures set out for initiating those processes and once activated the Applicant will have opportunity to respond to them. Any rights he has are governed by legislation covering those processes.

As to his rights to compensation or entitlements if any, those are matters which any Government of the day ought to bear in mind in any event when making/considering whatever decision it intends making. He will be entitled to lodge any claims he has with the Government of the day for any outstanding claims or dues to him.

I am not satisfied accordingly at this point of time that the rights contended for under the Constitution in sections 3, 5(1), 7, 14(1), and 15(2) of the Constitution capable of standing on their own irrespective of the status and position of the Applicant for he is not a citizen of Solomon Islands and his privileges and rights are circumscribed. They are ultimately tied up directly with the crucial question whether his status and appointment as Attorney-General will continue under this new regime or not and whether or not the extradition request from Australia will be granted or not.

For those reasons the application for leave to apply for redress under section 18(1) of the Constitution must be refused.

The Court.

^[1] Primo Afeau v. Judicial and Legal Service Commission and Attorney-General (Acting) CASI-CC 4-07, p. 16.