ATTENTION

Please note that this site is now an archive site and is no longer being updated. Updates ceased in May 2003.

For current information please go to

www.paclii.org

Article 1 Volume 6, 2002

THE ROLE OF THE COURTS AND LEGAL PROFESSION IN

CONSTITUTIONAL AND POLITICAL DISPUTES IN THE PACIFIC ISLANDS NATIONS.

Address by the Honourable Sir John Muria¹ at the Graduation Celebration, University of the South Pacific, Emalus Campus, Port Vila, Vanuatu - 4 December 2001

Introduction

Having gone through periods of colonisation at varying times in their history, nearly all the countries in the region have now attained political independence with written Constitutions modelled upon the Westminster system. In all these Constitutions, fundamental rights provisions as well as clear demarcation among the three organs of the State: the Executive, Legislature and Judiciary have been entrenched. There is recognition of the need for this clear separation of power among the three organs of the State. This was an obvious acceptance of the need for the existence of check and balance in the way these newly independent countries would be governed.

In addition to the scatteredness of the island countries in the region, there is also the great diversity of culture within and among them. In this diversity, there has been unity and peaceful co-existence, although recently the region has experienced serious disruption² of this peaceful co-existence. Nevertheless the notion of “Unity in Diversity” is our common destiny in the midst of our differences in these islands countries.

The Courts

The courts in most of the Pacific Islands countries are set up and follow the English common law system. Judges are trained in the common law tradition. The adjudication techniques are those modelled on the common law practice. The first judges of our courts were expatriates, trained in the common law tradition. Then our own nationals took over, sat on the same bench and again continued to apply the common law rules and techniques. I am sure you are well aware of these in the course of your studies here.

The High Courts and Supreme Courts of these islands countries have been invested with unlimited original jurisdiction, in all cases including constitutional cases³.  In the exercise of the powers conferred by law, these Courts have been contributing to the development of the respective countries through their decisions. Comparatively speaking, countries in our region of the Pacific are still very much at their embryonic stage of development, particularly in their legal system. So much so that this developmental role of the Courts is essential at this early stage of the countries’ growth. The traditionalists may see this proactive approach by the Courts as a prescription for conflict in the roles of each of the organs of the State. I do not share that view for one basic reason, that is, the Courts and those who preside over them belong to the particular society or community; they understand the aspirations of the country and its people; they are therefore in the best position to envision the path that the country needs to travel to fulfil that vision. This is not judicial activism, rather it is that the Courts are not being idle or indifferent to the call to serve the interest of those for whom it is established.  In doing so,  the courts have been subjected to criticisms by the members of the public as well as by members of the legal profession at times and while some of the criticisms had been justified, many of them had been unwarranted.  For example, a judge may have been criticised for taking a bold and unprecedented stand against actions that are clearly contrary to the “peace order and good government of the country” in times of turmoil. More particularly, if you are in the position of Chief Justice, the burden of making the choice of what to do and what not to do can be extremely heavy.  I hope that in performing your duties as legally trained young men and women, you do not lose sight of this. The Courts, as protector of the rights of the people, must be in a position to take active role, within the bounds of their constitutional functions, in ensuring that the advancement of the nation and its people are not unreasonably curtailed.

Constitutional Disputes

In newly emerging nations with written Constitutions, disputes as to the interpretation and implementation of a constitutional provision are not uncommon. Here in Vanuatu as well as in other countries in the region, there had been numerous constitutional challenges brought before the Courts in the last twenty years.

A number of factors had given rise to the various constitutional challenges, notably, the infancy of the country and its Judiciary. Unlike many other countries with written Constitutions and which have had a long period of judicial development, establishing firm precedents on constitutional issues arising in their jurisdictions, countries in this region have only just began this journey. There will be many more years to come before we can fully realise the impact of our Constitution. As it is, for the moment, constitutional challenges are part of our growing up and maturing. I consider this to be a healthy process.

The Constitution of an independent nation has always been accorded supremacy over any other law and any law that stands in contradiction to it, must be void to the extent of the inconsistency⁴.  It is because of this high-held principle that challenges to Government actions, and even in some occasions, individual actions are brought before the Court for resolution. The motive, very often in these constitutional challenges, apart from seeking guidance from the Courts, is to seek a guaranteed protection of the fundamental rights under the Constitution as well as ensuring that the arbitrary use of power is avoided. These in my view must be the paramount tasks of the Courts in constitutional disputes.

An example of invoking the Court's assistance to ensure protection of guaranteed rights is Jamakana -v- A ttorney General⁵ where the High Court of Solomon Islands held that the actions of the defendant in restricting the right of the plaintiff to freely move in and out of the country were in breach of sections 5 and 14 of the Constitution which guarantee the plaintiff the right to move freely throughout Solomon Islands, to reside in any part of Solomon Islands, the right to enter Solomon Islands and immunity from expulsion from Solomon Islands. The Court then awarded compensation to the plaintiff for breach of his constitutional rights.

Two years later, the High Court once again, in Tong -v- Attorney General⁶ held unconstitutional, the continuing withholding of the plaintiff's passport and refusing to deliver it to him, preventing him from leaving the country. The Court ordered the release of the passport to the plaintiff. The same two provisions of the Constitution, sections 5 and 14, had been breached. Again the Court ordered the Government to pay. compensation to the plaintiff.

Like in the Jamakana case, the plaintiff in the Tong case had to seek protection from the Court to enforce his guaranteed rights under the Constitution. All too often, it is the individual who has to face up to the might of the executive power and it is in such a situation that the Courts must forever be vigilant to embrace the cry of the down-trodden. It is in such cases that it becomes critically important for skilled lawyers to defend the rights of the weak against the power of the state.

It is not, of course, only the weak that requires the Court's aid. Those in authority do also sought the Court's assistance to secure protection of their rights. In the Speaker -v- Danny Philip ⁷, the Solomon Islands Court of Appeal upheld the High Court's decision which held that the right of a Member of Parliament to move a motion of no confidence in the Prime Minister is a constitutional right, a right inherent in the position of being a Member of Parliament. The rationale behind this decision is that Solomon Islands is a representative parliamentary democracy with the principle of majority rule prevailing over the Executive Government. If a Member of Parliament is deprived of the right to invoke the mechanisms⁸ provided under section 34 of the Solomon Islands Constitution, then the principle mentioned will become inoperative which may result in the . Government not enjoying the majority of the House continuing in power.

The recognition of the constitutional right of Members of Parliament to move a motion of no confidence in the Prime Minister had also been affirmed by the Courts in other jurisdiction. In Vanuatu, this was clearly recognised in The President of the Republic of Vanuatu & Attorney General -v- Maxime Carlot Korman MP & Others⁹ where the Court of Appeal said :

"Once a Motion has been accepted and a date has been set down for its hearing, the Speaker is not competent to close Parliament on the basis that there is no business to deal with because that in effect is denying members of Parliament a constitutional right."

The Court's role in such a situation clearly must be to assure the person affected of his constitutional right and to ensure adherence to the principle of law at stake. While assuring a person's constitutional right and ensuring that it be protected in accordance with the principles entrenched in the Constitution, the Courts also do have the right and the duty to ensure that those in whom executive power is vested do not wield them arbitrarily against others or exercise it in a manner contrary to the Constitution. In small countries, such as ours in this region, the Courts have a vital role to play in ensuring that those who exercise power over others do so reasonably and for the benefit of the country and its people.

By way of a slight digression, the world today is not the same as it was when the atomic bomb was dropped over Hiroshima or when the great holocaust was committed upon millions of innocent Jews in Europe. The might of the superpowers as well as that of the war-mongers then might be one of the reasons for the modern approach to respect for the rights of others and perhaps with the influence of the Human Rights Conventions¹⁰, many countries today have taken the entrenched approach of including human rights provisions in their Constitutions. The atrocities and the scourges of the two world wars were too much for the world to ignore anymore. They gave rise to the birth of the' International Bill of Rights¹¹.  But as if those terrible experiences of the past were not enough, we again witnessed the continuing infliction of suffering on mankind in our so-called modern civilized world.

By and large, we in this part of the world have so much to thank God for. We continue to enjoy relative peace and calmness despite incidents of disruption and instability that are creeping into our societies. These incidents must not be ignored by both domestic as well as international authorities, since such incidents can have a lasting

devastative effect on the country socially, economically and politically. The Courts must also be vigilant in their role as interpreters of the law and protectors of the people's rights.

To return to the other role of the Courts in Constitutional disputes, that is, of ensuring arbitrary or unreasonable use of power is avoided, we see in many of the emerging independent nations, the readiness of the Courts to correct and guide those bodies who exercised power either , under the Constitution or a statute. Again to use the Solomon Islands experience, the Courts in Solomon Islands had occasions to deal with a situation where the Executive Government had not enjoyed majority support in the House and yet clinging onto power which led the Governor General to order removal of the Prime Minister. This was the case of Francis Billy Hilly & Ors -v- The Governor-General & Another¹², following what clearly was the refusal by Prime Minister, Francis Billy Hilly to step down when he lost substantial support in the House. A vote of no confidence against him was before the House but he refused to advise the calling of Parliament.  He acknowledged that the only options available to him was either to delay calling Parliament or resign. In the meantime, the "High Court had already found the Government to have exceeded its borrowing limits fixed by Parliament.¹³ The Governor-General ordered the removal of the Prime Minister, ordered the Speaker of Parliament convene Parliament¹⁴ and directed the Commission of Police to enforce the order of removal of the Prime Minister from Office.

The Prime Minister, the Speaker and Commissioner of Police brought an action against the Governor-General challenging the constitutionality of His Excellency's actions. The Court reiterated that the only means by which the Governor-General could remove the Prime Minister from office was following a vote of no confidence. The Court further held that the Prime Minister who admitted losing support in the House was in no position to tender advice to the Governor-General and consequently, the Governor-General in his own judgment could rightly order Parliament to meet, so that the constitutional impasse could be solved in the Parliament.

The Court, in the Hilly case, had to point out that under the Constitution the Prime Minister can only be removed after a vote of no confidence. There is no power in the Governor-General to arbitrarily remove him. Any order for the Prime Minister's removal other than in accordance with s.34 of the Constitution will be unconstitutional. The Court had also taken the opportunity to send the message to the Prime Minister who no longer had the support in the House that he could not be in a position to tender advice¹⁵, including as to the calling of Parliament, to the Governor-General as envisaged under the Constitution. Thirdly, the Court had to point out that a constitutional crisis as such can only be resolved in Parliament and where Parliament had not been called, the Governor-General had the power to call Parliament to meet in order to resolve the constitutional dispute.

A repetition by the Governor General of the exercise of his power under section 72 of the Constitution was in another case, The Prime Minister -v- The Governor General¹⁶, where there was also a motion of no confidence in the Prime Minister before the House but the meeting of Parliament was delayed. There was the suggestion that the Prime Minister did not have the majority support to continue to govern and so the delay was to enable the Government to muster support. The matter came before the High Court which decided that the only place to resolve the dispute was on the floor of Parliament. Here again we see another incident of high offices wielding executive muscles. The Court had to . ensure that the dispute be resolved in the very forum established for that purpose by the Constitution, the National Parliament.

A more recent instance of the wielding of Executive power of the State was Fiji case of Prasad v Attorney General where the High Court of Fiji had to point out that the action of the Interim Government abrogating the 1997 Constitution was unlawful and that the 1997 Constitution remains the supreme law of Fiji. Again we see the wisdom of the Courts (High Court and Court of Appeal) in that case helping to resolve a major constitutional crisis.

Lest it may be argued by some that the Court must be wary of not stepping onto the floor of Parliament, I hold firmly the view, as others have also held, that while desiring to minimise conflict between the Courts and Parliament, the Courts in Solomon Islands must continue to scrutinise actions which may involved a breach of the Constitution even if it means entering onto the floor of Parliament.¹⁸ The Tongan case of Fotofile v Siale ¹⁹ is also very explicit on this point. The Tonga (Privy Council) had to point out that while the court cannot inquire into the validity of the proceedings in Parliament, it has the power to do so where there has been a breach of the provisions of the Constitution. Similarly the Vanuatu Court of appeal also expressed this in The President's case referred to earlier where the Court said:

"It is not for the Court, to interfere in the internal arrangements of Parliament but Members of Parliament can never act so as to deny to others (including other MPs) rights which are provided under the Constitution."²⁰

In fact it would be in the interests of Parliament itself to have the guidance of the Court when it issues declaratory orders as pointed out by the Solomon Islands Court of Appeal in Edward Hunuehu -v- Attorney General and Speaker of Parliament,²¹ and the Tongan case of Fotofile v Siale²². That is a legitimate role of the Courts and must continue to be so.

So much had been expected of the Courts in the newly independent states, in particular, when it comes to constitutional crisis. Many of these countries have similar provisions in their Constitutions. This undoubtedly is of great assistance to the Courts in those countries as to how the Judges of those countries dealt with a similar problem in their own jurisdictions. It enhances the Court's role in resolving the problem at hand and maintaining the rule of law.

The Court’s Role in Political disputes

I will briefly deal with this area. I am not quite sure if the Courts have a role as such in political disputes. One would have thought that the principle of the independence of the Judiciary makes it clear that the Judiciary plays no part in political disputes. One sometimes hear the remark, " that is the matter for the politicians".  But is there an occasion when a political dispute can also be a matter for the Court? Perhaps the answer to that question would depend on the perception or the nature of the dispute.  

In a number of these constitutional challenges, politics had been an intricate part of them. In the Hilly and Ulufa'alu cases, the bottom line issue in both of those cases was whether they had the political support in House. In other words, it was really the  "number game" ²³. That was politics. The matters came before the Court as Constitutional disputes with a political cause. The Courts in both cases were doing no more than. subjecting the expediency of politics to the rule of law by the orders which they made.

The Courts do not and should not shy away from deciding on political questions just because they were very much of a political flavour, as can be seen from the cases referred to. In many of such cases the issue left for the Courts was the constitutionality or lawfulness of the political action, rather than the politics of it. The role of the Courts in such a situation is again very much to ensure that the political dispute is resolved within the bounds of the rule of law and thereby maintaining a constitutional government.

The Role of the Legal Profession in Such Cases

The strength of a country's legal system does not depend on the Judiciary alone. It is must be a joint effort of the courts and lawyers who are officers of the courts. Thus the legal profession plays an important role in constitutional disputes whether as advocates for the litigants or even as parties. Being professionals, participation by lawyers in this process can bring about positive development in the legal system as well as in the democratic process of governing the people. Most important in all these is the professional training that lawyers undertake creating the quality of lawyers and the legal profession well suited to shaping our legal system.

Speaking of quality of the legal profession, Blackstone once criticised the social quality of the English Bar in 1758.  He said that the inns having been ceased to be schools of law, the bar was becoming infected with careerism. So much so that instead of having the benefit of education and studying the principles of law, the inns were a place where prospective barristers got into the profession through mechanical procedures of law picked up at the desk of attorneys.²⁴ The solution to that as we now have is for universities to teach law as being the first step in the career in law.

One of the common traits of professional organisations, such as the law, medicine, engineering, accountancy and others, is that their members received systematic training, education and socialisation. This is what you, graduates here present, have been through. For those who will be practising as lawyers or in your respective profession, you will then continue from here to further your skills training leading to you possessing specialised skills upon which you will be tested for competency. These systematic training will enable you to acquire certain autonomy and independence in the profession, rendering 'service' of high value to your clients as well as to the community. With specific mention of the legal profession, there is in my view the great need for you to be vigilant in your role as active participants in building up and shaping our legal system in this region. While we can draw guidance from the English common law, a great many of the crisis (constitutional or otherwise) arising in our region, did so under social, political and cultural settings that have no comparable identity in England, United States, Australia or elsewhere. You have to be prepared to cut and travel upon new paths, build new bridges and set the course for the future. But while doing so be mindful of the need of maintaining the balance between wisdom and knowledge.

I would like to view the legal profession as the right hand support of the courts. This it can do through its support for the courts on important issues of national significance, such as on the independence of the judiciary. There are also occasions when the legal profession offers insights to the courts through helpful criticisms. But one of the common ways in which lawyers offer useful assistance to the courts is through well and professionally presented arguments in cases. In doing so, such lawyers are not only representing their clients well but are helping to build a strong legal system. And do not think that you can only do that by being a government lawyer. Whether in public or private practice, a lawyer carries with him through his education and professional training a sense of a public interest' as a component of his professional calling. It is true that traditionally only government lawyers take on public interest cases and private law practice are more engaged in representing their clients who pay their bills. But a law firm is not simply an economic organisation. It is part of an institution where lawyers performed their work professionally and with excellence. When those skills are applied in public interest litigation, they can also create dependence and confidence on regular paying clients²⁵ while at the same time rendering service to the public.

As new graduates and aspiring lawyers, you would be best take to heart at this early stage of your career, the notion that you are an asset and your legal training is an asset also which you must put into good use for the betterment of your country and your people. But to sustain such an asset, you must remember to preserve your integrity. Lose it and the asset has no more value any longer .

Conclusion

Thus the Courts have played and will continue to playa vital role in . the newly emerging independent states of the region. The legal profession is part and parcel of this developmental process. It is vital as the forging of the bond between the various diverse culture of the people in the society requires confidence in the system which will ensure people live in harmony with each other. It ensures that, as all power which belong to the people,²⁶ it must be exercised by those who hold it for the benefit of the people and the country as a whole. In addition, the courts and the legal profession play that vital role of preserving and maintaining the rule of law and that the basic rights and freedoms of the people are safeguarded. There is no substitute for such role in our democratic community.

Constitutional or political disputes that come before the Courts are an essential part of a country's development and maturing. Through their decisions, the Courts offer guidance. The stand taken by the Courts supported by the legal profession in such disputes is an essential ingredient of the people's quest for a harmonious community, stable government and peaceful co-existence and the Court must forever open its doors to all those whose grievances are for the attainment of these objects.

-------------------------------------------------

¹ Sir John is Chief Justice of Solomon Islands and is presently on sabbatical leave at the Victoria University of Wellington, New Zealand.

² There were the ethnic conflicts in Solomon Islands and civilian coup in Fiji in 2000.

³ For example sections 18, 77 and 83 of the Solomon Islands Constitution confer unlimited original jurisdiction on the High Court of Solomon Islands.

⁴ Section 2 of the Constitution provides that the Constitution is supreme law; numerous cases in Solomon Islands and other Pacific Islands jurisdictions have reiterated this principle.

⁵ [1983] SILR 127

⁶ [1985/1986] SILR 112

⁷ (1991) Civil Appeal No.5 of 1990

⁸ Section 34 provides for the vote of no confidence in the Prime Minister

⁹ (1998) Appeal Case No.8 of 1997 (Vanuatu)

¹⁰ The European Human Rights Conventions had greatly influenced many of the newly independent countries to include in their written Constitutions provisions guaranteeing protection of fundamental Rights.

¹¹ The 'International Bill of Rights' comprises of the Universal Declaration on Human Rights (UDHR), International Covenant on Economic, Social and Cultural Rights (ICESCR), and International Covenant on Civil and Political Rights (ICCPR).

¹² (1994) Civil Appeal No.2 of 1994 (CA)

₁₃ Abe v Minister of Finance [ ] LRC

¹⁴ Pursuant to section 72 of the Constitution

¹⁵ Section 35 (1) and (2) of the Constitution.

¹⁶ (1998) Civil Case No.150 of 1998 (HC)

¹⁷ Prasad v Attorney General [2001] LRC

¹⁸ The Danny Phi/ip case makes this clear

¹⁹ Fotofi/e v Sia/e [1988] LRC (Const.) 102

²⁰ The President's Case (Vanuatu)

²¹ (1997) Civil Appeal No.5 of 1996; this case also reiterates that the Court has the power to inquire into the actions of Parliament where such actions involve a breach of the Constitution

²² Fotofile v Siale, above

²³ The term by many politicians to describe their maneuvering to maintain political support in the house.

²⁴ William Blackstone, Commentaries on the Laws of England (4 Vols., Oxford, 1765-9), vol. 1,32.

²⁵ F. Raymond Marks with Kirk Leswing and Barbara A Fotinsky, "The Lawyer, The Public and Professional Responsibility”,  Chicago, American Bar Association, 1972, 250-264.

²⁶ Preamble to the Constitution provides that all power in Solomon Islands belongs to its people and is .exercised on their behalf by the legislature, the executive and the judiciary.

[About the School of Law] | [Courses Offered] | [Course Materials] | [Staff]
[Pacific Law Materials] | [Journal of South Pacific Law]
[Emalus Campus Library] | [Recommended Internet Links]
[Latest Additions]  | [Search the Site]

© University of the South Pacific 1998-2002

If you have any comments, suggestions or difficulties with using this web site please email
Robynne Blake, Internet Project Manager, The School of Law, The University of the South Pacific or fax: (678) 27785

Last Update: Monday, June 02, 2003 08:20