Court strikes out case challenging the legality of extending parliament under Constitution Amendment Act 2022
The High Court yesterday (6th September 2023) ruled that the parliamentary and constitutional processes taken to pass the Constitution Amendment Act 2022 are legal and according to law.
This comes after the Chief Justice, Sir Albert Palmer granted applications to strike out made by the Defendants, the Speaker of Parliament, the Prime Minister and the Governor General on the civil case filed by the Claimant, the Leader of the Independent Group, Hon John Dean Kuku challenging the legality of the processes of passing the Amendment Act and its implementation.
The Claimant sought answers from the Court on questions related to the interpretation of Section 61 (3) of the Constitution, the act of final voting can only take place at the third reading and possible implications of the Amendment Act.
The Claimant then sought declarations from the Court that the passage of the Constitution (Amendment) Bill 2022 by Parliament contravened Section 61 (3) of the Constitution and is therefore unconstitutional invalid and of no effect.
The Claimant also sought declaration that Parliament dissolved on May 15, 2023 in accordance with Section 73 (3) of the Constitution; and all seats in the National Parliament of Solomon Islands are vacant as of May 15, 2023 pursuant to Section 50 (a) of the Constitution.
Other declarations sought are that all proceedings by Parliament after May 15, 2023, including the passage of any Bills and Motions, are null and void and that the third Defendant which is the Governor General make a Proclamation for holding the National General Elections pursuant to Section 74 of the Constitution.
On claims related to the implementation of the Amendment Act, the Claimant sought the Court’s declaration that there is no term of Parliament capable of being dissolved as a consequence of suspension of operation of Section 73 (3) of the Constitution.
Another declaration sought is that Parliament cannot be dissolved on December 31, 2023 and that Section 4 of the Constitution (Amendment) Act 2022 be struck out.
Meanwhile, the first Defendant (Speaker of Parliament), the second Defendant ( the Prime Minister) and third Defendant ( the Governor General) filed two applications for strike out on the 27th of July and 3rd August 2023.
These applications were based on the grounds required by the Civil Procedure Rules 2007 that the proceedings are frivolous or vexatious; or no reasonable cause of action is disclosed; or the proceedings are an abuse of the process of the court.
The first Defendant in grounds for strike out submitted that Parliament followed the relevant processes and that there is no breach of the Constitution, as alleged by the Claimant where the Court does not have jurisdiction to intervene.
On the validity of the Amendment Bill, the first Defendant submitted that there are no allegations of any contraventions of any provision of the Constitution.
The second and third Defendants submitted that the claim is defective as disclosing no reasonable cause of action and that the Claimant having failed to overcome this hurdle is not entitled to be given a hearing.
After careful consideration of the issue, Chief Justice Sir Albert Palmer is satisfied with the applications for strike out made by the Defendants.
“ After careful consideration of the issues raised and the submissions provided, I am more than satisfied and convinced that the correct and only submission open to this court is the one propounded by the Defendants in this claim.”
He said it is incumbent upon the Claimant to object to the process if he was serious about the failure to comply with the legislative and parliamentary process. Instead of raising an objection there and then and giving the opportunity to the appropriate forum being Parliament presided over by the First Defendant to resolve that, he participated and then has now come to the court for redress.
“While the question of interpretation lies with this court, questions of process and procedure lie within Parliament to amend if it deems appropriate.”
“The question of the number of readings and votes to be taken falls squarely with the rule making power of Parliament to have the relevant Standing Orders put in place to give effect to the constitutional requirements imposed upon it and not in this court.”
Sir Palmer then granted an application to strike out the claim on the grounds that no reasonable cause of action is disclosed, and therefore is frivolous and vexatious and an abuse of the court process.
The Constitution Amendment Act 2022 was passed by parliament on 8th September 2022.
The Act provides for the extension of parliament until 2024.
By Fredrick Kusu