Statement from the Governor General, Sir Frank Kabui, on the conduct of election of the Prime Minister.
We refer to the Meeting held by the Governor-General at 9.30am on Wednesday, 24th April, 2019 inside the Meeting Chamber of Parliament Building in Honiara.
It was not a Meeting of Parliament.
It was a Meeting to enable the Governor-General to ascertain the member of Parliament who had an absolute majority of members supporting him on the floor of Parliament.
It was done by voting in a secret ballot.
Any member of Parliament with an absolute majority would be declared the Prime Minister elect.
Honourable Mathew Wale spoke on SIBC and also on the front page of Solomon Star, Thursday 25th April, 2019 (No.7198).
He said he was justifying why his group decided to walk out of the Meeting on that day.
The Meeting was called by the Governor-General for that purpose under Schedule 2 to the Constitution.
This Schedule is part of the Constitution. We adopted the Constitution on 7th July, 1978.
Four members of Parliament nominated Honourable Manasseh Sogavare as a candidate for the position of Prime Minister.
The Governor-General accepted the nomination under the provisions of Schedule 2 to the Constitution.
There was no legal defect in the nomination.
In a letter dated 19th April, 2019, Honourable Mathew Wale asked the Governor-General to consider postponing the Meeting to elect the Prime Minister to another date because his group were challenging the validity of Honourable Manasseh Sogavare,s nomination in the High Court.
The Governor-General replied and said that he would consider it but would be dealt with in the Meeting already scheduled for Wednesday 24th April, 2019.
Gabriel Suri of Suri’s Law Practice filed in the High Court their case, Civil Case No. 238 of 2019, on 23rd April, 2019.
He also made an application for interim orders. None of the proposed orders included any order seeking to direct the Governor-General to postpone the Meeting. He later amended it to include the order seeking to direct the Governor-General to postpone the Meeting.
The hearing was set down for 7.30am on Wednesday, 24th April, 2019, the day of the Meeting.
Gabriel Suri of Suri’s Law Practice, by letter, did inform the Governor-General of the hearing date and time.
The Governor-General was not represented at the hearing.
The Governor- General heard of the granting of the order when he was about to commence the Meeting.
The order was eventually given to him during the course of the Meeting when the Governor-General said he did not see the order.
The Governor-General had been aware that this order was coming to him and he was prepared to deal with it.
The order, amongst other things, directed the Governor-General to postpone the Meeting until the final determination of their substantive case.
The Governor-General saw a defect in the order. It is that in terms of paragraph 11 of Schedule 2 to the Constitution, it clearly says that the functions given him by this Schedule shall be exercised in his own deliberate judgment. It does not use the word “may”: it uses the word “shall” to describe how that power is to be exercised by him.
Also, the words, “in his own deliberate judgment” according to him, mean his own personal judgment. In other words, he thinks it over himself, makes up his own mind and decides. Not on the direction or representation of others.
The High Court Order was an external factor intended to influence his mind to postpone the Meeting. He therefore rejected the High Court order and continued with the Meeting and concluded it.
Paragraph 10 in Schedule 2 to the Constitution says that any dispute that arises out of or in connection with the calling of the Meeting or conduct of any election meeting or the election of the Prime Minister, shall be determined by the Governor-General.
Obviously, postponing the Meeting as called for in the letter by Honourable Wale on 19th April and the High Court order on 24th April, is a dispute that arose out of and in connection with the matters specified in paragraph 10 above.
Such disputes are to be determined by the Governor-General alone, and not by anyone else. Any determination of such disputes by the Governor-General shall be final and conclusive.
It shall not be questioned in any proceedings whatsoever.
This is the law in paragraph 10 above. It is the Constitution speaking. It is the supreme law of this land. Any other law that is contrary to the Constitution is null and void under section 2 of the Constitution.
The Governor-General believed that the words, “shall be final and conclusive” mean any determination made by him under paragraph 10 above brings a final end of any dispute. Paragraph 10 goes on to say that such determination by the Governor-General shall not be questioned in any proceedings whatsoever.
The understanding by the Governor-General is that his decision to continue the Meeting despite the request to postpone the Meeting was final, conclusive and cannot be questioned by anyone.
The Governor-General understands the meaning of the word, “proceedings” as being proceedings in any court of law. Otherwise that term is meaningless. Clearly, the courts are barred from questioning any determination by the Governor-General of any disputes arising under paragraph 10 above.
The Governor-General views the approach by Honourable Wale and the High Court as being tricky. In other words, the approach had been pre-empting the decision by the Governor-General of the dispute over postponing the Meeting.
The Governor-General had been notified in advance to postpone the Meeting. That notification had been backed up by the High Court order on the day of the Meeting. The High Court order directed the Governor-General to postpone the Meeting at all costs.
This was the root cause of the secondary dispute. The original dispute was over the validity of the nomination of Honourable Manasseh Sogavare. That is to be decided by the High Court at a later date.
The secondary dispute was over postponing the Meeting. This was the one the Governor-General determined by rejecting the High Court order under paragraph 11 of Schedule 2 to the Constitution.
The High Court order was in conflict with the Governor-General’s powers under paragraph 11 above. The Constitution being the supreme law, prevails over the High Court order. The High Court order arises from the High Court’s power to grant discretionary interim orders. This is normal. Paragraph 2(1)(a) of Schedule 3 to the Constitution however says that whilst the principles of the common law and equity have effect as part of the law in Solomon Islands, such principles are null and void if such is contrary to the Constitution.
Again, the Governor-General was of the view that the High Court order was also contrary to paragraph 11 of Schedule 2 to the Constitution in this respect. Whilst the Governor-General has respect for the High Court order served on him on the date of the Meeting, he was of the view that he was not obliged to accept it under paragraph 11 to Schedule 2 to the Constitution.
There were other technical reasons such as the Governor-General was not a party to the original dispute over the nomination of Honourable Manasseh Sogavare. He did not register Our Party as a Political Party.
It was done by the Political Parties Integrity Commission. It is the Coalition Agreement between Our Party and other Political Parties to form a Government that sparked the original dispute on questioning the validity of the nomination of Honourable Manasseh Sogavare.
As far as Government House was concerned, the nomination of Manasseh Sogavare under Schedule 2 to the Constitution was valid because he is a legitimate Member of Parliament. His nominators were four in number and are also legitimate members of Parliament.
The Governor-General’s view was that any procedural disputes under the Political Parties Integrity Act, 2014 in relation to Honourable Manasseh Sogavare’s entitlement to be the Leader of Our Party does not affect his nomination accepted by Government House.
In fact, the letter by Honourable Mathew Wale dated 19th April did not dispute the nomination of Manasseh Sogavare under Schedule 2 to the Constitution. Any illegality found under the provisions of the Political Parties Integrity Act will not invalidate the nomination of Honourable Manasseh Sogavare under Schedule 2 to the Constitution. Also, should there be a conflict, the Constitution prevails.
He was of the view that he had no legal obligation to facilitate the case before the High Court over the procedural dispute under the Political Parties Integrity Act by postponing the Meeting on Wednesday 24th April, 2109. The group led by Honourable Wale were only 15 in strength. This was revealed during the count of votes after his group walked out.There was no assurance that their case before the High Court would be heard and concluded on Friday 26th April, 2019. The trial judge had given the Governor-General no assurance to this effect. Everything was rather open-ended due to tight time schedules.
There was no assurance also by Honourable Mathew Wale that his group would increase his numerical strength on the floor of Parliament in the ruling by the High Court. There was also no assurance that they would win their case in the High Court. It all depends upon the merit and strength of their case.
There is bound to be delay in the court process. In the meantime, the people of Solomon Islands are waiting for a new Government to be formed after the election.
The Governor-General was of the view that the people of Solomon Islands needed a new Government as soon as possible. It was upon him to initiate the process to find out from all the members of Parliament which of them commanded an absolute majority.
The Governor-General acted accordingly. The Governor-General was aware that Our Party had entered into a Coalition Agreement with other Political Parties to form the new Government. He had seen a copy of the Coalition Agreement. There were 34 signatures in all. They were solid as a combined group. They were capable of forming a new Government as soon as possible.
The group led by Honourable Mathew Wale only had 16 members of Parliament. They had no Coalition Agreement. The Governor-General has not seen any. As a matter of fact, 35 members of Parliament voted for Honourable Manasseh Sogavare in the Meeting. One vote was spoilt. It can be assumed that one member of Parliament had crossed over to Honourable Manasseh Sogavare’s side, leaving the group led by Mathew Wale with only 15 members of Parliament.
The Governor-General believed that the time was ripe for the formation of a new Government. He was aware of the dislike of Honourable Manasseh Sogavare by some section of the community to become the Prime Minister. The choice was made by the members of Parliament themselves. The Governor-General only facilitated the process to choose. It is constitutional mandate to do so.
Any political strategy by the group led by Honourable Mathew Wale to gain additional members from the other side by applying a delaying measure in the High Court to gain time is nil. The Governor-General saw no prospect of improving their numerical strength on the floor of Parliament soon. In this respect, the Governor-General was not sure of the purpose of their going to the High Court for relief and asking the Governor-General to delay the Meeting.
The 34 members of Parliament who had signed the Coalition Agreement all voted to demonstrate their commitment to the Coalition Agreement they had signed. In fact, they gained one more from the other side.
The Governor-General believed he had to make a move to end any further speculation as to who was to be Prime Minister. The Governor-General regrets causing any inconvenience to anyone. He has a constitutional duty to perform and he did it in the interest of the country.
The Governor-General was aware that whichever way he went in the Meeting on the issue of the dispute over the postponement of the date, he would be criticized. He accepts it in good faith and humility.
The social unrest following the election of the Prime Minister is regrettable. Honourable Manasseh Sogavare has now become the Prime Minister and his Government will soon be formed to govern the country.