DISSOLUTION OF WESTERN, CHOISEUL PROVINCE ASSEMBLY AND THE ELECTION

By Christian B Mesepitu

Former Premier, WPG

1. Introduction

This Brief is prepared for the information of the people of Western and Choiseul Province Citizens in relation to the dissolution of these two assemblies of Western and Choiseul Provinces on June 13, 2022.  It covers the effects of dissolution of these two Assemblies by operation of Section 9 of the Provincial Government Act 1997 as amended (“Provincial Government Act 1997”), the status of the Executive Government post dissolution and options available to the Minister for Provincial Government and Institutional Strengthening (“MPGIS”) in relation to the exercise of ministerial powers under the Provincial Government Act 1997. 

• Background facts

On June 9, 2022, the Permanent Secretary to the Ministry of Provincial Government and Institutional Strengthening (“MPGIS”) wrote to the Premier of Western Provincial Government, advising, amongst other things, that no elections will be held for the Western Provincial Assembly on the fourth anniversary of the ordinary election of the Western Provincial Assembly. The fourth anniversary of the Western Provincial Assembly falls on June 13, 2022 and, according to the Permanent Secretary, provincial elections should have been held on that date in accordance with Section 9 of the Provincial Government Act 1997.

The Permanent Secretary further advised the Premier, by the same letter, that this is an unprecedented situation and the MPIGS would make a decision on the appropriate action to take after consultation with MPIGS’s Consultant, the Solomon Islands Electoral Commission and the Attorney-General’s Chambers.  At paragraph 9 of the Permanent Secretary’s letter to the Premier, the Permanent Secretary indicated that a decision will be made by MPIGS on several options, including but not limited to the following:

a). Caretaker mode by the Western Province Executive Government;
b). Extension on the life of the Assembly;
c). Supervision by an Administrator;
d). Role of the Premier and Provincial Ministers;
e). and Budget Revision.

At paragraph 10 of the letter, the Permanent Secretary advised the Premier that the Provincial Government Act 1997 does not have any legal provisions that caters for all or any of the options outlined in paragraph 2 (a) – (e) above.

At paragraph 15 of the Permanent Secretary’s letter, the Permanent

     Secretary further advised the Premier that MPIGS would still expect the Premier and Ministers to attend to official matters, but only as a matter of courtesy.

As at Friday, June 24, 2022, MPGIS has not made a decision on what action it will take in relation to the options in paragraph 2 above. Cabinet has not, as at the date of this Brief, made any decision on what course of action it would take, including provision of additional funding to the Solomon Islands Electoral Commission.

• Legislative Provisions – Provincial Government Act 1997 (as amended)

The Provincial Government Act is carefully structured and has separate provisions catering for the election to a Provincial Assembly, the term of a Provincial Assembly, the dissolution of a Provincial Assembly, election of a Premier, appointment of a Deputy Premier and Provincial Ministers.  It also caters for when and how an Executive Government is terminated. 

Most importantly, the Provincial Government Act 1997 provides for the status of an Executive Government between the period when a Provincial Assembly is dissolved and the election of a new Premier, including the formation of a new Executive Government.     

• PROVINCIAL ASSEMBLY – Election and Dissolution

Relevant legislative provisions covering the Election of a Provincial Assembly, Dissolution of a Provincial Assembly, formation of a Provincial Executive Government, termination of a Provincial Executive Government and powers of the Minister charged with the responsibilities of the Provincial Government Act 1997 (as amended) are set out below.

• Provincial Government Act 1997

The Provincial Government Act 1997 is the primary legislation governing the establishment and administration of a Provincial Assembly and Provincial Executive Government.   There are several amendments to the Provincial Government Act 1997, notably the Provincial Government (Amendment) Act 2014 and the Provincial Government (Amendment) Act 2017.

The starting point, for purposes of this Brief on issues pertaining to the election and dissolution of a Provincial Assembly, is Section 9 of the Provincial Government Act 1997.   It is set out below:

Section 9 (1) Subject to subsection (2) an ordinary election of member of a Provincial Assembly shall be held on the fourth anniversary of the date of the office of previous election of members (whether it was an ordinary election or an election held under Section 10 (4).

(2)………

(3)……..

(4)   The term of the office of any member of a Provincial Assembly (whether elected at an ordinary election or otherwise) shall begin on the day on which he is elected and end on the day with the dissolution of the Assembly.  

(emphasis added)

Section 9 (1) (above) was repealed in its entirety in 2014, by an amendment to the Provincial Government Act 1997 which is set out below.

• Provincial Government (Amendment) Act 2014

In 2014, Parliament amended Section 9 (1) of the Provincial Government Act 1997 by deleting subsection (1) and substituting it with a new subsection 9 (1) as follows:

Section 9 (1) Subject to subsection (2) an ordinary election of members of a Provincial Assembly shall:

• be held on the fourth anniversary of the date of the office of the previous election of members (whether it was an ordinary election or an election held under subsection (4); or

• be held on any other date that the Minister may appoint by Order published in the Gazette if the Minister:

• is satisfied that such action is necessary in the public interest;

• has consulted with the Premier of the relevant province; and

• the date of the election is not more than 60 days before or after the election would otherwise be held under (a) of this section”.

• Provincial Government (Amendment) Act 2017

In 2017, Parliament made a further short but major amendment to Section 9 (1) (b) (iii) of the Provincial Government Act 1997 (as amended) by deleting the period of 60 days and replacing it with a period of 12 months. 

The amendment is set out below:

Section 9 (1) (b) (iii) of the Provincial Government Act 1997 is amended by deleting 60 days and substituting “12 months”.

As will be later shown in this Brief, a Provincial Assembly can be dissolved by operation of Section 10 (1), that is by operation of law, or through a process commencing with a Resolution passed by the Provincial Assembly, and taking effect on the making of and gazetting of a Ministerial Order.  See Section 10 subsections (2), (3) and (4).    

• THE PROVINCIAL EXECUTIVE

Sections 19, 20 and 21 of the Provincial Government Act 1997 provides for the establishment of the Provincial Executive, including the election of a Premier, choice of Provincial Ministers and termination of the term of Provincial Ministers.  Section 21 is of particular importance and is set out below:

Section 21 (1) On the election of a new Premier, the term of office of the Provincial Ministers of the existing Executive shall come to an end.

(2)    A Provincial Minister may at any time resign.

(3)    A Provincial Minister shall cease to hold office as Provincial Minister            if:

(a)   he is disqualified from membership of the Provincial Assembly; or

• he resigns his seat;

but shall not cease to be a Provincial Minister by reason only of the dissolution of the Assembly.

(Emphasis added)

(d)………..          

• APPLICATION OF LAW TO THE WESTERN PROVINCIAL ASSEMBLY

Section (10) of the Provincial Government 1997 (as amended) provides for two situations where a Provincial Assembly can be dissolved. 

1. Dissolution of Western Provincial Assembly by operation of law

The first situation arises by operation of law as stated in Section 10 (1), which provides that the Assembly is dissolved on the eve of any ordinary election of members.  The Permanent Secretary of MPGIS has advised that the Western Provincial Assembly has been dissolved as of June 13, 2022 being the eve of the fourth anniversary of the last provincial election.  Under this Section 10 (1), there is no requirement for the Western Provincial Assembly to pass a resolution dissolving the Assembly.  Further, no Ministerial Order is required under Section 10 (1) to be made by the Minister for MPGIS dissolving the Western Provincial Assembly. 

The Western Provincial Assembly has been properly dissolved on June 13, 2022 pursuant to Section 10 (1) of the Provincial Government Act 1997, by operation of law.

1. Dissolution by Resolution of Assembly and Ministerial Order

Section 10 (2) and (3) provides for the second way by which a Provincial Assembly can be dissolved.  Under this provision, the Western Provincial Assembly must first pass a resolution for its own dissolution, thereafter the Minister for MPGIS will issue a Direction dissolving the Western Provincial Assembly.

The last Western Provincial Assembly was NOT dissolved on June 13, 2022 by way of its own resolution and Ministerial Direction under Section 10 (2) & (3).  It was dissolved by operation of law, not by a resolution.

1. APPLICATION OF LAW PERTAINING TO THE WESTERN PROVINCIAL EXECUTIVE AFTER DISSOLUTION ON JUNE 13, 2022

Under Section 19 of the Provincial Government Act 1997, it is mandatory for a Province, including Western Province, to have an Executive Government. That Executive Government shall consist of a Premier, who is an elected member of an elected Provincial Assembly, a Deputy Premier and such number of Provincial Ministers who are appointed by the Minister for MPGIS as allowed under Section 19 (1) (c).

Section 21 (1) provides that on the election of a new Premier, the term of office of the existing Executive shall come to an end. 

Furthermore, Section 21 contains an important legal proviso which states that Provincial Ministers, including the Deputy Premier and Premier, shall not cease to be Provincial Ministers by reason only of the dissolution of the Assembly.  As has been demonstrated under Section 10 (1), a Provincial Assembly is dissolved by operation of that Section, or by an earlier Resolution of the Provincial Assembly and Ministerial Order under Section 10 (4).

Section 21 provides for the continuity of the Executive Government, irrespective of whether or not the Provincial Assembly has been dissolved under Section 10 (1) or by Section 10 (4).  The protection afforded by law to the Executive Government terminates when a new Premier is elected by the newly elected Provincial Assembly members. 

Further, the existence of an Executive Government is NOT ONLY NECESSARY for reasons of the requirement of Section 19 (making it mandatory to have an Executive Government at all times) and the proviso to Section 21 (which states that Provincial Ministers remain in office despite the Assembly being dissolved), IT IS ALSO NECESSARY  for the fulfillment of the requirements of Section 9 (1) (b) (ii), where the Minister is required to CONSULT A PREMIER before setting a date for Provincial Assembly elections following dissolution.  

In other words, if there is no Premier, how would the Minister for MPGIS fulfil his statutory duty to consult a Premier under Section 9 (1) (b) (ii) BEFORE appointing an election date?

To interpret Section 20, Section 21 (1) to mean there is no Provincial Executive after a dissolution would be unlawful and contrary to the intentions of the Provincial Government Act 1997.

In short, the Provincial Government Act 1997 recognizes the existence of an Executive Government for the intervening period commencing from the date of dissolution and ending on the date of election of a new Premier by the newly elected Provincial Assembly.  There is no executive vacuum, as may have been mistakenly held by the Permanent Secretary for MPGIS. 

This important aspect of legislative recognition of an Executive Government is also at play in the National Executive, whereby Ministers and the Prime Minister who held offices when Parliament dissolves, remains as Ministers and the Prime Minister until a new Prime Minister is elected by Parliament.

There are, however, limitations on how much power an Executive Government is such a situation can exercise. 

The term CARETAKER GOVERNMENT is a term that is loosely used to refer to an Executive Government who governs either in the National Government or a Provincial Government after dissolution.  There is no mention of such a term either in the National Constitution or the Provincial Government Act 1997. 

1. MINISTERIAL POWERS TO APPOINT A DATE FOR THE HOLDING OF  PROVINCIAL ASSEMBLY ELECTION FOLLOWING DISSOLUTION

Section 9 (1) (b) of the Provincial Government Act 1997 (cited above) is the source of ministerial power for the appointment of a date for holding of Provincial Assembly elections.  The Minister appoints the date by making an Order specifying the date on which the Provincial Assembly election is to be held.  The Order is then published in the Gazette.

1. MINISTERIAL POWERS UNDER SECTION 47 OF THE PROVINCIAL GOVERNMENT 1997

Section 47 of the Provincial Government Act 1997 provides additional powers to the Minister for MPGIS to use to remove any difficulty that arises for the purposes of:

• providing for any unforeseen or special circumstances (see Section 47 (1) (a); or

• resolving, determining or adjusting any doubt, question or matter.

Section 47 further cautions the Minister on the use of Ministerial powers under that section.  It clearly states that such powers can be used in relation to the application or implementation of the Provincial Government Act 1997 or in respect of which NO PROVISION OR EFFECTIVE PROVISION has been made in or under the Provincial Government Act 1997. Section 47 is a tool available to the Minister to facilitate the implementation of the Provincial Government Act.

1. ISSUES FACING WESTERN AND CHOISEUL PROVINCIAL ASSEMBLY AND WESTERN AND CHOISEUL    

          PROVINCIAL EXECUTIVE

There are basically two issues which requires attention by the Minister:

• First, as the Western and Choiseul Provincial Assembly has been dissolved by operation of law, there is no Western and Choiseul Provincial Assembly.  No caretaker Provincial Assembly is permitted by law under the Provincial Government Act 1997. Elections for the Provincial Assembly Elections must be held on a date to be specified by the Minister for    MPGIS

The Minister announces the election date by way of a Ministerial Order using his powers under Section 9 (1) (b) of the Provincial Government Act 1997.  The only restriction is that the election must be held within a period of 12 months from June 13, 2022. 

          As the Provincial Government Act 1997 provides for the election of a Provincial Assembly either on the fourth anniversary of the term of office or on a date to be determined by the Minister under Section 9 (1) (b), there is:

• no unforeseen or special circumstance as envisaged under Section 47 (1) (a); and

• no difficulty being experienced that needs to be resolved, determined or adjusted in order to remove any doubt or question under Section 47 (1) (b);

• The second issue relates to the existence or otherwise of a Provincial Executive Government. On the advice of the Attorney-General and Consultants, the Minister for Provincial Government has formed the view that there is no Provincial Executive in existence following the dissolution of the Western and Choiseul Province Assembly, therefore, an Administrator will be appointed to administer the affairs of Western and Choiseul Province.

As has been discussed above, Section 21 (1) of the Provincial Government Act 1997 clearly states that the Provincial Executive remains in office after dissolution until the election of a new Premier. There is already by operation of law, a Provincial Executive.  There is no legislative support for the appointment of a Provincial Administrator.

1.          Recommended way forward:

• Minister for MPGIS informs Cabinet on the status of Western and Choiseul Provinces and to seek funding for elections;

• Minister for MPGIS liaise with Solomon Islands Electoral Commission to determine the most appropriate date for the holding of elections for both Provincial Assemblies, taking into account registration of voters, pubic interest for early participatory elections and establishment of an Executive Government;

• Minister for MPGIS to consult with the Premier of Western and Choiseul Provinces in accordance with Section 9 (1) (b) (ii); and

• Minister for MPGIS to make an Order appointing an election date in accordance with Section 9 (1) (b).  No Order should be made under Section 47 of the Provincial Government Act 1997. 

• Current Western and Choiseul Provincial Executive remain in office until election of new Premier.

By Christian B Mesepitu
Former Premier, WPG