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Waena v Attorney General [2022] SBHC 62; HCSI-CC 382 of 2018 (14 September 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 382 of 2018

BETWEEN

SIR NATHANIEL WAENA
Claimant

AND:

ATTORNEY GENERAL
(Representing the Chairman of Parliamentary Entitlement Commission)

Date of Hearing: 5 April 2022, 10 May 2022, Written Submissions filed by Claimant,
22 May 2022, written Submissions filed by Defendant
23 May 2022, written reply in response by Claimant

Date of Decision: 14 September 2022

Mr B Upwe for the Claimant
Mr. S Banuve for the Defendant

JUDGMENT

Faukona, DCJ.

1. A claim in Category C was filed by the Claimant on 17^th October 2018.
2. There were three reliefs sought in-terms of declarations and resumption of payment of Claimant’s entitlement. One is a declaration that the Defendant had acted ultra vires its powers to make amendments to the Members of Parliament (Entitlements) Commission (Amendment) Regulation 2015 that had affected the provisions of the Governor General (Pensions and Benefits) Amendment Act 2012.
3. Secondly is a declaration that Members of Parliament (Entitlements) Commission (Amendment) Regulation 2017, in particular paragraph 5, is unconstitutional and be brought to this court and be quashed.
4. The third order sought is an order of resumption of payment of the Claimant’s entitlement under Members of Parliament (Entitlements) Commission (Amendment) Regulations 2015.
5. Almost ten (10) months after filing of the claim, the Defendant filed its defense on 14^th August 2019.
6. The Claimant was elected a Member of Parliament for Ulawa/Ugi Constituency for a period from 31^st December 1987 to 6^th July 2004, 16 and half consecutive years.
7. The Claimant was also elected as the Governor General in July 2004 and served for one term from 7^th July 2004 to 6^th July 2009. Since then the Claimant was not employed.
8. However, since the Claimant had held two separate respective positions at different periods of time, he had been drawing two legal entitlements under Members of Parliament (Entitlements) Commission (Amendment) Regulation 2015, and under Governor General (Pensions and Benefits) Amendment Act 2012.
9. Sometimes in April or May 2017, the Claimant ceased receiving entitlements under Members of Parliament (Entitlement) Commission (Amendment) Regulation 2015 because there was an amendment to Regulation 2015 which was done in 2017.
10. That gave rise to this proceeding.
11. The Claimant’s case is that Regulation 5 of the Members of Parliament (Entitlements) Commission (Amendment) Regulation 2017, is ultra vires according to the first relief, and is unconstitutional according to the second relief.
12. The basic reason for that is that the Defendant did not have the power to interfere into the operation and facilitation of the Governor General (Pensions and Benefits) Amendment Act 2012.
13. At that time when the amendment regulation 5 came into force in 2017, the Claimant was enjoying pension entitlement under the Governor General (Pensions and Benefits) Amendment Act 2012, and similarly enjoying pension entitlement under the Members of Parliament (Entitlement) Commission (Amendment) Regulation 2015.
14. The Claimant was not aware of the 2017 Amendment. All over sudden his entitlement under Members of Parliament (Entitlement) Commission (Amendment) Regulation 2015 was ceased.
15. The Defendant pleaded it had the power to determine the entitlements of the Parliamentarians as stipulated in S.69 B (1) of the Constitution to review and amend on yearly basis.
16. The question to pause at this juncture is, having had that power was it not ultra vires in creating such an amendment, in particular regulation 5?
17. I have no doubts in my mind that the Members of Parliament (Entitlement) Commission was established (created) by S.69 A (1) of the Constitution consisting of a Chairman and four other members.
18. At the same time S.69B of the Constitution vests power upon the Commission to determine the entitlements of Parliamentarians and to amend them by yearly review.
19. S.69 C is a definitive provision. It defines, what are entitlements in subsection (2) (a), and what are Parliamentarian in subsection (2) (b) of the Constitution.
20. To categorize the Claimant under those definitions, surely he is not a Parliamentarian now, but he draws benefit of which he was entitled to and qualified for, after serving number of terms as a Parliamentarian.
21. Of course the function of the Commission will also have some impact on him due to annual review which may affect his benefits by an increase.
22. Therefore, the Claimant was not so isolated from the functions perform by the Commission, under its powers by virtue of S.69 of the Constitution.
23. By virtue of S.69 B(2) (c) the Commission may make or amend regulations in relation to scales of salaries, entitlements, terms, conditions, loans and advance of salaries etc provided it considers requirements in S.69B (2) (a) and (b) and subsection (3)(a) and (b) of the Constitution.
24. Apparently, it would appear the Commission is vested with great powers to make or amend regulations. Simply put, it has the power guaranteed under the Constitution to make laws, and amend it when applicable. But the powers of the Commission are limited to one area of law, to consider and create or amend regulation related to entitlements of Members of Parliament.
25. With the broad legislative power (equivalent) there ought to be a check and balances to ensure the power is not abused. There is nothing in place.
26. In any event, it is an acceptable law that Regulation 5 once validly made assumed constitutional status, thereby take priority over others. See Tabusasi V Members of Parliament (Entitlements) Commission^[1].

Pleadings:

27. On the outset of the arguments, the first contentious issue is pertaining to pleadings. The Defendant contends that the Claimant Counsel’s nature of cross examination concern no evidence of minutes led to the resolution by the Commission to amend the Members of Parliament (Entitlement) Commission (Amendment) Regulation 2015’ and that the Defendant did not comply with relevant process to reach its determination therefore makes Regulations 5 ultra vires.
28. The Defendant further argues that the absence of minutes or consultation notes to verify the process under-taken was not sufficiently pleaded in the claim, so as to fairly allow the Defendant to fully response to. The Counsel for the Defendant made references to several case authorities. Ultimately the Counsels would acknowledge they are bound by the pleadings.
29. The Counsel for the Claimant argues that reports and minutes are fundamental for the purposes of verification as required by S.69 B (2) (a) and (b) of the Constitution.
30. That those reports should stipulate the state of economy, in level of pay, entitlements, change in retail price index and other indicator showing cost of maintaining the living of Parliamentarians.
31. I noted pleadings were not sufficiently done. But I would not dwell on that too much when there is evidence that no such consultation have been taken place. If so, there would be reports and recommendations as documentary evidence available in Court. Now there are challenges to the process.
32. The significant point is that any reports on consultations conducted by the Defendant is a relevant process prior to formulation of the amended regulation, are information within the knowledge of the Defendant and not the Claimant.
33. As an obligation under the rules, the Defendant should have disclosed consultation report of course subject to interrogatories. There was nothing done. And the Claimant should not be blamed for the failure for not conduction proper pleadings.
34. In reality cross examination were related to S.69 B of the Constitution, is proper on the face of the sworn statement deposed by the Chairman of the Commission and oral evidence he adduced in Court.
35. This is important to find out the truth whether consultations required by the Constitution were complied with.
36. Mr. Siapu, the Chairman of the Commission, confirmed to the Court, on cross-examination, that they have consulted with various stakeholders to obtain their views on the issue of receiving two pensions from two pension schemes. Apparently, Mr. Siapu did mention in particular Central Bank of Solomon Islands and Permanent Secretary of the Ministry of Finance and Treasury.
37. He further stated, that after consultations, the finding indicated that the arrangement of entitlements had serious economic effects and the proposed amendment to the Members of Parliament (Entitlements) Commission (Amendment) Regulation 2015, was fully supported.
38. Unfortunately, there was no minute of any consultation, or report to that effect, was produced by way of evidence to the Court, to poof that S.69 B (2) of the Constitution had been complied with and to justify the creation of regulation 5 of the 2017 Regulations.
39. Very significant to the compliance are the words of the Court of Appeal in Tabusasi’s case which stated, “we are satisfied that there are only two grounds on which those Regulations can be individually challenged. First, if the Regulation being considered is in conflict with the Constitution S.83. Secondly, if the Regulation is ultra vires the provision in S.69 A. B and C. “The second part of the quote is at stake in the current case.
40. Furtherance, the Court of Appeal affirmed that S.140 (2) of the Constitution apply, and must be applied in this case.
41. Lack of evidence to justify views of others, before action was taken, simply culminated that Members of Parliament (Entitlements) Commission acted independently and outside of its mandatory functions. Thus ultra vires creation of Regulation 5 of 2017.
42. Again it makes no sense, if the entitlements had serious economic effect, as basis for the amendment. Mr. Siapu confirmed there were only two persons the Claimant and Sir Baddley Devesi draw entitlements under the same Act and Regulation. Is remuneration or entitlements of two people caused serious havoc to Solomon Islands Economy? Potentially, that is illogic and cannot be accepted as genuine evidence to rely on.

Double dipping:

43. The next principle which the Commission raised during serious of consultation was the issue of double dipping. That issue was already in mind in or about 2016.
44. The question to pause, why ever thought of the issue of double dipping when the Claimant was receiving two separate entitlements from two sources of income from the government under two separate laws. Is it bad and unacceptable in nature, or in doing so had frustrated the economic viability and advancement of Solomon Islands.
45. The Claimant argues that because there are only two people with this entitlement it had little financial effects to the general economy of Solomon Islands.
46. On the contrary the Defendant affirms its position that the intention of the amendment was because of the double dipping benefit receiving two pensions from the Government. The rationale was to ensure there was no double dipping from public funds.
47. Whilst the Defendant recognizes the importance of the Claimant services in Parliament and as a Governor General, it can be far from truth to describe receiving two pensions or two incomes is double dipping therefore unethical.
48. It cannot be said to be unethical because when MPEC Regulation 15 came into force, it applied retrospectively to the Claimant who qualified to receive pension under that Regulation. It is not something the Claimant desired or demanded. But a token of appreciation entrenched into Regulation 2015 for the hard work and success the claimant endured.
49. Noted there are only two statesmen who elevated to the two highest offices. They need to be respected and appreciated for what they had done to the country. After all the pensions the Claimant received does not proof by evidence, on the balances, have affected immensely the economic standing of Solomon Islands?
50. On the same token, there is no poof in material evidence, of any supporting views from the stake holders which subsequently led to the enactment of the amended Regulation.

Whether reference to “Governor General” in regulations is Unconstitutional:

51. Regulation 5 actually reads, “in the circumstances that Member qualifies for pension both as a Member or a Governor General, he or she is eligible to only one pension of his or her choice”.
52. I have read the regulation thoroughly and I am able to conclude that it was poorly constructed. It is without doubt that the MP (Entitlement) Commission has the power under S. 69 B (1) to determine entitlements of Parliamentarians and to amend them on yearly review.
53. Reference to Parliamentarian as defined in S.69 C (2) (c) could seem to me as sitting Parliamentarian, not a former Parliamentarian.
54. Therefore, the construction of regulation 5 could have been better if some connotation in reference to former parliamentarian or former Governor General was used. I noted in paragraph 27 of the Defendants submissions that he tries to better it by mentioning former MP or former Governor General.
55. The powers of the Commission may extend to MP pensioners if the annual review affects their entitlements, but not the Govern General, they have no power.
56. Having said that, I noted Mr. Siapu said that the intention of the Regulation was to affect only the Members of parliament and not the Governor General.
57. However, the regulation by its broad meaning gave a choice for the Claimant whether to abandon his Governor General pension or Member of Parliament pension. The risk is, if the Claimant abandoned his Governor General pension, then apparently he was unduly forced by law to abandoned, something he may not have intended to do in life. This is when the regulation has penetrated into the entitlement of the Claimant which he enjoy under Governor General (Pensions and Benefits) (Amendment) Act 2012, since 2009.
58. Hence a law maker who makes law with an open gap allows room for risk and frustration, is not a good law but bad in its application and effect.
59. Further, Mr. Siapu agreed when cross-examined that any law enacted must promote peace, order and good governance. If the Claimant was not at peace, was frustrated at the enactment of the regulation, because it interferes with his rights of entitlement to pension, which he had enjoyed, then that law though enjoyed its Constitutional blessing, is subject to be questioned in its application.
60. More than that, the Claimant was not consulted before embarked on creating the amended regulation. When cross-examined, Mr. Siapu admitted the Claimant was not consulted because the Commission was not obliged to do so.
61. If that is the attitudinal approach, then where is the justice that the regulation intends to accord by giving a choice, as to which pension the Claimant should abandon? Let me assure the Commission that is a bad attitude and approach. The Claimant was not given any privilege to be heard and even made his choice as required by the regulation.
62. Depriving the Claimant of his rights, and enforcing a regulation in the midst of none availability of reports on consultations in support, summed it all. The Commission had acted ultra vires its powers in creating regulation 5 which deprived the Claimant of his entitlement and thus must be declared bad and unconstitutional and therefore must be brought to this court and be quashed.

ORDERS:

1. Order declaring the Defendant had acted ultra vires its powers to make amendments to the Members of parliament (Entitlements) Commission (Amendment) Regulation 15, by creating amendment Regulation 5 which deprived the Claimant of his entitlements under the above Regulation.
2. Order by declaring that the Members of Parliament (Entitlements) Commission (Amendment) Regulation, in particular paragraph 5 is unconstitutional and therefore, must be brought to this Court and be quashed.
3. Order that the Defendant resume paying the Claimant’s retirement pension under National Parliament (Entitlements) Commission (Amendment) Regulation 2015.
4. Order that the Defendant remedy by paying back all the months and years the Claimants ceased to receive his pension entitlement until the date of this judgment.
5. Order that cost of this hearing be paid by the Defendant to the Claimant on standard basis.

THE COURT.
FAUKONA REX.
DEPUTY CHIEF JUSTICE.

^[1] [2016]SBHC 33; HCSI-CC 175 of 2015 (19 April 2016).