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Journal of South Pacific Law - Solomon Islands Crisis Judicial Independence and Integrity
By David Chetwynd, Registrar High Court, Solomon Islands
Judicial officers (and by that I mean the persons involved in the law who make decisions such as judges and magistrates) are, in most jurisdictions in the world, subject to criticism of their judgments. Sometimes, to very robust criticism. There is absolutely nothing wrong in that. It is usually a sign of a healthy democratic society. I firmly believe that a critical approach to judicial decisions is acceptable and should be encouraged.
It is also an inevitable consequence of Human nature. In every case before any court there is a party that succeeds and a party that does not succeed. Please note that I do not say that there are winners and losers. The expressions, winners or losers, have no real place in the law. On the basis that there is always going to be some one who succeeds and some one who does not, it follows that there will be someone who is disappointed with the court’s decision and some one who is pleased with it. It would be unnatural not to expect a critical view of the court’s decision from the person who is disappointed. It would be unnatural not to expect a similar attitude from a person who, although not involved as a party, has a vested interest in the outcome of the case.
It should also be remembered that every judicial decision, except that of a court of final appeal, is subject to appeal. In the Solomon Islands our court of final appeal is the Court of Appeal. This means that every court in the Solomon Islands, except the Court of Appeal, is subject to review by way of appeal to a higher court. Every Local Court justice, every CLAC member, every magistrate, every judge knows this. For this reason it is not often considered right and proper to respond immediately to criticism made of a judgment or ruling. Any such criticism is usually disposed of by the ruling of the Appeal Court. As I have already said I think it is perfectly acceptable anyway for the courts to be the subject of criticism. I would add one proviso though, I believe any criticism should be well informed and reasonably balanced. What I do find very distressing is when a criticism of a ruling or judgment turns into a disagreeable and unsavoury personal attack on the Judge.
I do hope you will forgive me for falling back to the poetry of my natural language but the words of an English poet named Alexander Pope have always seemed to me to be sound in principle and effect. He wrote,
“A little learning is a dangerous thing ;
Drink deep or taste not the Pierian Spring”
Those words came back to me as I read the comments attributed to Mr. Alfred Sasako reported in today’s Solomon Star (Monday 19th November). Reading what was said of the judiciary in general, and Mr. Justice Palmer in particular, I have no compunction about responding immediately to defend a judge for whom I have very great respect.
I cannot believe that Mr. Sasako has read the full judgment in the Ulufa’alu case. It can only be that Mr. Sasako has sipped a very small amount from this particular Pierian spring or has relied on an erroneous précis of the judgment. The period for the applicant to appeal has not yet expired in the case and so it would be totally wrong of me to comment on the law as set out in the judgment of Mr Justice Palmer. However, I do not believe that there is anything improper in quoting parts of the judgment.
At page 1 of the judgement Mr. Justice Palmer says, “The situation in the country prior to 5th June was not stable. The rule of law in the country had been severely undermined by rebel groups and criminals on Guadalcanal Island who showed no respect for the law.” He then goes on to say, “It was not clear what exactly their agenda was, but it started off as grievances arising from the murders of Guadalcanal people, (many of the accused had been tried under the criminal law of this country and convicted), illegal settlements of land in the outskirts of Honiara City, (squatter settlements had grown up and extended into customary land areas of the indigenous owners), a desire for more autonomy through state government and a host of other grievances”. Later on the same page the Judge says’ “A lot of people from Malaita and others, living in the outskirts of Honiara city, many for two to three generations and had validly purchased land in custom or according to law (pursuant to the Land and Titles Act Cap. 133), peacefully and lawfully residing in their lands, suddenly found themselves chased out by armed and ruthless gangs who showed no respect for the law. There was indiscriminate burning, destruction of property, kidnapping and killing of innocent Malaitans. Law and order outside of Honiara city was virtually out of control”.
Having lived in Honiara throughout those troublesome times I believe the Judge succinctly and accurately set out the situation at that time. “The stage was set for the volcano to explode and it did on 5th June 2000.” Of the events of June 5th 2000 and what followed the Judge said, “….some disaffected members of the Police and Prison Force joined up with disaffected members of those who had been displaced, a group now known as the Malaita Eagles Force (“MEF”) and hereinafter jointly referred to as “the Joint Force”, raided the Police Armoury at Rove on the early morning hours of 5th June 2000 and after arming themselves with high powered rifles, took “control” of “law and order” within the city vicinity. The Prime Minister then, (Applicant in these proceedings), was placed under house arrest by the Joint Force, after his personal guards at his residence had been disarmed, threatened and chased out. The Prime Minister was told to resign or his life would be at risk”. Mr. Justice Palmer then says, “Mr. Ulufa’alu has deposed in his affidavits filed 5th June, 12th June and 18th June 2001, not only explicit details of the harassment, intimidation and violence he had been exposed and subjected to during that time, but had filed copious documents of the reports, events and efforts undertaken by his Government to address the downward spiral of law and order in the Capital, which preceded the 5th June 2000 and the events thereafter”. He adds, “Numerous affidavits too……. have also deposed to details of harassment, intimidation and threats on themselves, their family members and others by members of the Joint Force or their supporters. As a direct result of those threats, a number of his supporters resigned from his Government and defected to the opposition grouping, which was led at that time by the Second Respondent”.
Mr. Justice Palmer then sets out some of the consequences of the coup of 5th June. “The Governor-General himself was under intense pressure. His personal guards had been disarmed. Despite this, he bravely called for the return to normalcy in his letter of 14th June 2000 (page 259 of Exhibit marked “BU” in the affidavit of Bartholomew filed 5th June 2001) to all Members of Parliament before Parliament would be summoned to elect a new Prime Minister. He knew, it was common knowledge then, that the Prime Minister had been forced to resign under the barrel of the gun”. The Judge goes on to say,” Realizing the situation was even more precarious, with widespread looting, stealing, harassment and intimidation of innocent citizens in the Capital, with the absence of an effective police force, not to mention the fact that our overseas neighbours were making plans to evacuate their citizens from our country, his Excellency decided in his own deliberate judgment to activate the provisions of Schedule 2 to the Constitution, and call a meeting of members for the urgent task of electing a new Prime Minister in spite of the fact that the preconditions set by him had not been complied with”.
Mr. Justice Palmer also deals with the attempts of Parliamentarians to hold a democratic meeting.” It is clear from the affidavits of Francis Billy Hilly, Daniel Enele Kwanairara, Walton Naezon, Nelson Boso, Edwin Kwaimisi (2nd affidavit), and Jimmy Mae, all filed on 5th June 2001, first affidavit of Edwin Kwaimisi filed 7th May 2001, Sir Baddeley Devesi filed 18th June 2001 and affidavit of Patteson Oti filed 9th July 2001, that there were unlawful attempts by armed men alleged to be members of the Joint Force and supporters of the opposition candidate (2nd Respondent and 3rd Respondent) to prevent the charter and normal flights from taking off the ground and bringing in members of Parliament from the Provinces. Despite those threats and at the risk of their lives, the majority including the Applicant bravely turned up to honour the constitutional obligations and duties required of them to elect a new Prime Minister. They should be commended for that”.
The comments attributed to Mr. Sasako would have you believe that “The High Court must be the only establishment which remains unaware of the hardships, sufferings …….”. If you read the full judgment you will see that, quite the contrary, the High Court is well aware of the breakdown in the normal processes of law and order. One of the crucial passages in the judgment reads, “In order therefore, for the Applicant to succeed on the threshold issue raised by the Respondents, he needs to show under what executive or administrative authority his application is premised on. For only then, can he be permitted to continue with this action. Respectfully, he has not done that. On the contrary, it has been made plain and the Applicant does not deny this, that the Respondents are being sued in their personal capacities; the second Respondent as Member of Parliament and leader of the opposition grouping in Parliament, the third Respondent as Member of Parliament and member of the opposition grouping in Parliament, and both in their capacities together with the fourth Respondent as alleged leaders of the Joint Force. Apart from that, there is no evidence and no legal nexus suggesting or purporting to show that those persons were acting in any executive or administrative capacity for or on behalf of the State. There is no suggestion for instance that they were in league with the Governor-General and were taking orders from him.
In essence the allegations levelled against the Respondents and the Joint Force and their members, constitute some extremely serious breaches of our Penal Code. Applicant’s remedy lies in the Penal Code and the Criminal Procedure Code. The Police and Director of Public Prosecutions are the appropriate authority to deal with such contraventions. Other remedies lie in tort or contract. “
The emphasis in the last paragraph is mine but clearly the whole paragraph quoted shows that His Lordship was and is well aware of what is going on and what is needed now. I think it is most unfair of Mr Sasako to suggest that it is up to the High Court, and in particular Mr Justice Palmer, to solve the whole problem. A problem, incidentally, which to my mind the Politicians have been singularly unable to solve.
As to the independence of the Judiciary, I can say without any doubt that I have never read any judgment delivered in the High Court which was even remotely been tainted with bias for or against the Government of the day. If after hearing evidence of some wrong, some omission or transgression by or on behalf of the Government a Judge feels that adverse comment is required it will be set out in his judgment for all to read. The High Court of Solomon Islands has never been afraid to make adverse comment if it feels that it is warranted. Remember too that there is no cloak of anonymity for a Judge. His judgment is delivered by him in his name.
In the recent past we have various judgments where criticism has been levelled at Government. In a judgment delivered on 26th January 2001 Mr Justice Kabui said, “When feelings are high in this sort of dispute and justice is denied by the Government through lack of funding, the use of threats and violence to achieve one’s end cannot be ruled out. This could happen. It is a shame for the Government not to fund the courts adequately.” [Sina and Others –v- Allardyce Lumber Co Ltd and Others unreported Case No.327 of 1994] The Honourable Chief Justice said that he “fully shared” those sentiments when he dealt with similar issues in the case of Sina and Others –v- Sasapezoporo Dev.Co Ltd and Others [unreported case 091 0f 1994].
In the case of Saemala –v- Fera and Others [unreported case no.096 of 2000] Mr Justice Lungole-Awich said, “The plaintiff avers that the Commissioner wrongfully went ahead and acquired the pieces of land in issue while an appeal was pending at the High Court, and further, that the Commissioner wrongfully made the grant of 50 years fixed term estate over Parcel 101-001-57 to the first defendant based on that acquisition, how can the Commissioner decline to answer those allegations without risking the finding against him that he wrongfully acquired the land and wrongfully allocated it? If the Court makes that finding of facts might the plaintiff not claim damages against the Commissioner or against all the defendants jointly? I have noticed that in most land cases the Commissioner has taken that evasive stand. The Commissioner might wish to consider that in appropriate cases, not necessarily this case, but could be this case, there are ways to make an officer holding public office pay damages and costs personally for his wrongful action especially if the action is fraudulent or is actuated by malice. Moreover, the government may be sued for negligence of the Commissioner even if the government has not gained from the land transaction.”
These are just a few examples were the court heard evidence and made reasoned criticism. There are many more examples within the High Court files. These files are public documents and available for inspection. If anyone doubts the independence of the Judiciary in Solomon Islands then I would commend them to visit us and look at those files.
I mentioned the Court of Appeal earlier. Surely it is common knowledge that we have had one of the strongest and most able Appeal Courts in the Pacific for many years. A past President was Sir Anthony Mason, a former Chief Justice of Australia. The present President is The Right Honourable the Lord Slynn of Hadley, the second most senior Law Lord in the United Kingdom. We have Justices of Appeal from the Australian Appeal Courts, the Chief Justice of The Kingdom of Tonga, senior and very well respected Judges from Papua New Guinea. If anyone doubts how able the Court is, please do come to the next sitting, which will be in Honiara from December 12th .
As for integrity, I very much abhor the personal attack on Mr Justice Palmer thinly veiled as an attack on the integrity of judiciary as a whole. Those who know the Judge will know how crass such an attack is. I will simply let you judge the Judge on his own words which were uttered just about a week after the coup in the case of Sai and Others –v Nori and the Attorney General [unreported case no. 180 of 2000 judgement 13th June 2000] “This Court fully appreciates the circumstances in which this application is made this afternoon. This Court is fully aware that there is no effective Prison Service and Police Force currently in the country especially in Honiara City. I alluded to this in my judgement delivered on Friday 9th June 2000 in Regina v. Michael Talu Criminal Case Number 21 of 2000. This means there is no effective lawful enforcement agency in Honiara City to enforce whatever orders or judgments that may be issued by this Court. The Courts however have not been disbanded. They remain open to date and are available to all, rich or poor, strong or weak to come and seek justice according to the laws of this Sovereign Democratic Nation. Solomon Islands as a sovereign nation has not been disbanded and its laws still remain though not enforced. To that extent, as long as this Court remains open with Judges available to serve, this Court has no option, no choice whatsoever, but to dispense justice according to law, pursuant to the solemn oaths taken by the Judges before God and the People of this Nation. We the Judges have no alliances with anyone, whether we come from Malaita, Guadalcanal, overseas or Western Province. As long as the sovereign democratic nation of Solomon Islands remains intact, as long as the Court’s doors remain open, justice must be dispensed according to law.”
I strongly believe that Mr Sasako is entirely wrong in his comments about the judiciary of Solomon Islands. I believe just as strongly that Mr Sasako has the right to criticise the judgments of the various courts in Solomon Islands. I do not, however, believe that Mr Sasako has the right to make personal attacks on individual members of the judiciary in the disingenuous guise of criticism of a judgment which are premised on a distorted interpretation of that judgment. To Mr Sasako, and anyone else who feels that such actions will help the healing process in this ailing nation can I finally offer further words of advice from Alexander Pope.
“The Learned reflect on what before they knew:
Careless of censure, not too fond of fame,
Still pleased to praise, yet not afraid to blame,
Averse alike to flatter, or offend,
Not free from faults, nor yet too vain to mend”
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