Joe D Foukona
Law School USP, Vanuatu
25/05/07
Many people in the Solomon Islands are familiar with the Family Charity Fund (FCF). It was a Fund formed by ‘Dr. Jane’ who promised her followers huge financial returns for a few hundred dollars deposit. Despite the questionable nature of the FCF and many delays regarding when to receiving the money her followers continue to have a firm conviction that one day they will be millionaires. This reminds me of the writing of Leon Festiger and others in the book ‘When Prophecy Fails’ when they stated: “A man with a conviction is a hard man to change. Tell him you disagree and he turns away. Show him facts and figures and he questions your sources. Appeal to logic and he fails to see your point”.
The Prime Minister of Solomon Islands has a firm stand on the Moti issue and this seems hard to change. When reality confronts his stand on the issue he does not change according to reality. Instead, he changes his understanding of reality. Like ‘Dr. Jane’ and her members of the Family Charity Fund, the Prime Minister and his advisers apparently, are determined, understanding each setback on the Moti issue not as a sign to rethink their choice regarding who should be appointed as Attorney General. Instead, it is considered as further proof that they must firmly hold on to their original choice – (re)appoint Moti as Attorney General.
There have been many discussions and critiques surrounding the appointment of Moti as Attorney General of Solomon Islands. Some views are persuasive, credible, provoking and personal. The Prime Minister and his advisers raised the issue of charges laid against Julian Moti by Australia as questionable. They argue that Moti has been cleared against the sex offence charges laid against him in Vanuatu many years ago. Therefore, the government is entitled to consider him for the post of Attorney General.
On the contrary, it could be argued Moti was discharged and not acquitted for the sex offence charges laid against him in Vanuatu (see Moti v Vanuatu Public Prosecutor [1999] VUCA 5; Criminal Appeal Case 01 of 1999 (23 April 1999). He did not stand trial. Therefore, the argument that Moti should not be tried twice for the same offence does not have weight because there was never a conviction or acquittal. Australia could still charge Moti in relation to the alleged sex offence based on its laws. Whether such an action is politically motivated is another issue but is it legal? In other words, is the charge laid against Moti in accordance with Australian laws?
Arguments on the role of authorities bestowed with statutory powers and in particular their independence from external interference in the exercise of such powers is persuasive. On the issue of Moti as a refugee in Solomon Islands, there has also been incredible debate. Up front in the debate is the Acting Attorney General taking the role of Acting Director of Public Prosecution and then deciding to withdraw charges laid against Moti for illegally entering Solomon Islands.
Interestingly, the discussions focused predominantly on technical aspects of the appointment of Julian Moti as Attorney General. This to a large extent involved a lot of legal issues and processes. However, this is not limited. The discussions also have a political dimension because Australia is insisting that Moti be extradited to Australia before the strained relationship between Australia and Solomon Islands can be repaired. The Solomon Islands government, on the other hand, is demanding an explanation by Australia on a number of questions including why Julian Moti is charged for a sex offence he was cleared of in Vanuatu.
While these discussions are more legally and politically oriented, it is important to realise that law and politics do not exist in a vacuum. What is also relevant to the discussions on the (re)appointment of Moti as Attorney General for Solomon Islanders is the question of “what do all these discussions mean to us as locals, citizens or Solomon Islanders?” The bottom of all these discussions is about a government post established by Section 42 of the Constitution. The post of the Attorney General is significant to the people of Solomon Islands. The Attorney General is the principal legal adviser of the government, public authorities and is the guardian of public interest as well as the rule of law. Therefore, it is of tremendous importance that the people of Solomon Islands through their elected representatives in Parliament ensure a candidate for the office of Attorney General; the principal legal advisor must satisfy the required criteria for appointment since it is a public office.
Section 42 (3) Constitution of Solomon Islands states “No person shall be qualified to hold the office of Attorney-General unless he is entitled to practise in Solomon Islands as an advocate or as a barrister and solicitor”. In other words, only the people entitled to practice law in Solomon Islands are qualified to hold the office of Attorney General. However, under Section 2 of the Legal Practitioners Act of Solomon Islands, it defines a legal practitioner entitled to practice as a legal practitioner in pursuance of Section 4 of the same Act. The Attorney General fits within this definition. Under Section 4 of the Act, the Attorney General is exempted from going through the normal procedures regarding applying for admission. A plain reading of Section 2 and 4 would mean any person with a law degree is qualified to hold the office of Attorney General and then automatically entitled to practice.
The plain reading of Sections 2 and 4 Legal Practitioners Act appears to make Section 42 (2) Constitution pointless. A reasonable line of interpretation would be to consider Section 4 Legal Practitioners as coming into effect after a candidate holds the office of Attorney General. On that basis, it would be consistent with Section 42 (2) Constitution. That is, a candidate must be a practicing lawyer in Solomon Islands before he/she could be eligible to hold the office of Attorney. Therefore, as a practicing lawyer a candidate is subjected to the Legal Practitioners Act Cap 16.
There is no doubt that Julian Moti’s legal ability, experience or technical skill in the area of law deserves recognition. Moti claims to have a valid work permit and presumably he has a practicing certificate to act as solicitor or barrister in Solomon Islands. This would mean Moti’s name is on the roll but whether he has a current practicing certificate is not quite clear. Nonetheless, by having his name on the roll one could argue he is entitled to practice in Solomon Islands thus eligible to be appointed Attorney General. This appears to be the line of consideration taken by the Prime Minister and the Judicial Legal Service Commission in choosing the suitable candidate for the office of Attorney General.
However, in light of the recent revelations and activities concerning Moti since September 2006 one needs to rethink such consideration by raising the crucial question of whether he is still a fit and proper person to be (re)appointed as the Attorney General of Solomon Islands? One counter argument is that it is unnecessary to ask such a question because the fact that Moti’s name is on the roll and he is entitled to practice in Solomon Islands he is therefore a fit and proper person. But having his name on the roll and a certificate to practice was issued before the recent revelations and activities. Therefore, the fit and proper person question does have merit to be raised but as a disciplinary issue which may result in disbarment.
Under Section 11 (b) Legal Practitioners Act, it provides that a legal practitioner could be disciplined if there is proof to establish he/she “…has been guilty of misconduct in his professional capacity or of conduct unbecoming of a legal practitioner, and by reason thereof is not a fit and proper person to practice as a legal practitioner”. That Section makes it possible for Moti to be disciplined as a legal practitioner if in the opinion of a disciplinary committee established by the Chief Justice finds that Moti’s conduct in relation to the recent events and activities since September 2006 resulted in a breach of the Legal Practitioners Act. The drawback to such process is that some one needs to initiate the process by raising a complaint or taking an action. This is where the role of the Solomon Islands Bar Association would seem relevant.
The significance of the judicial role of the office of Attorney General makes it important that who ever is appointed as Attorney General is suitable to hold that office. Therefore, the suitability of a candidate is assessed on their legal ability, experience or technical skills. Since a candidate for the Attorney General’s post must also be a practicing lawyer, the test of whether he/she is a fit and proper person must be taken into account. While a law degree and admission to practice are vital requirements, consideration must also be on other factors.
This is where the role of the Prime Minister and the Judicial Legal Service Commission becomes important in terms of taking into consideration what is not purely law per se. The Judicial Legal Service Commission had already made its decision regarding the appointment of the Attorney General, and the rule of law demands that if one is not happy with the decision then he/she must seek clarification from the court. Furthermore, the Public Service Commission has already done their part by suspending the candidate appointed to hold the office of Attorney General and the matter is now before the court to determine its legality. The rule of law demands the public to wait for the decision of the court.
However, the question of fit and proper person remains an important benchmark that needs to be considered objectively. It would require looking at qualities of a person’s character such as personal honesty, integrity, good judgment, open mindedness and reflection of society meaning a person who is mindful of the values, cultures and customs of Solomon Islands. This is where morality or ethics become relevant to the discussions on the (re)appointment of Moti as Solomon Islands Attorney General. There are some arguments that do not see morality or ethics as important in the discussions. The Prime Minister in his recent media statement suggests that the question about (re)appointing Moti as Attorney General is not about moral issues (See Solomon Star 10 May 2007).
This appears to be a strict legalistic view but the office of Attorney General is an important legal office of a higher standing. Hence, it is absolutely sensible that moral and ethical standards must be considered. The question of fit and proper person is a moral and an ethical question. It is a question that demands a legal practitioner or a candidate for the office of Attorney General must be a law abiding person and someone that has respect for values, cultures and customs of Solomon Islands. In that context therefore, the (re)appointment of a candidate to hold the office of Attorney General is not a simple matter of just satisfying all legal criteria necessary.
On that basis, one could argue that the issue on the (re)appointment of Moti as Attorney General should not be confused with Australia’s disrespect for Solomon Islands sovereign rights to make decisions. Also it should not be a matter that should form the basis of debating bilateral relations between Solomon Islands and Australia. The moral and ethical aspects associated with the issue on the (re)appointment of Moti as Attorney General require the governments of both Australia and Solomon Islands to look beyond the political rhetoric.
While all discussions have their own merits, and people are entitled to hold on to them, there needs to be a clear separation on the issue of the (re)appointment of Moti and bilateral discussions on strained relationships between Australia and Solomon Islands. One need not be a rocket scientist to know what to do here. It is simple; allow the law to take its course! Moreover, regarding the (re)appointment of Moti as Attorney General, let the court make its decision first regarding the legality of his suspension as Attorney General before further action is taken. Making statements now through the media to score points when the decision of the court is yet to come out could be implied as disrespect to the judiciary and its independence.
Apparently, the law is now taking its course. However, the people of Solomon Islands do have the right to raise concerns or ask questions about how the government addresses issues of national interest. They gave the government its mandate to operate as the Executive to review or answer appropriately to people’s questions or concerns regarding national issues. Thus, the government should respond to their questions or concerns appropriately and not just to the government of Australia. An answer to the question of whether Moti is a fit and proper person to be (re)appointed to the office of the Attorney General is important. The people of Solomon Islands are entitled to some explanations on the moral and ethical aspect of the discussions surrounding the intention of Solomon Islands’ government to (re)appoint Moti as Attorney General. This is so because of the following reasons.
Firstly, it is a reality that Julian Moti escaped bail and did not comply with the warrant of arrest issued by the court in Papua New Guinea. Without the need to go into detail on why Moti escaped, the simple fact is that he ran away from the law. This is a serious indicator of the attitude and character of the person. This issue is serious because the officers involved in assisting Moti in PNG to escape had already been dealt with in PNG. One may argue the case of Moti in PNG was dismissed. However, for any lawyer one of the first rules of the profession is to respect the rule of law and standard. Does the fact that Moti escaped bail in PNG demonstrate a respect for the rule of law and standard? Would such action still enable him to be considered as a fit and proper person in order to entitle him to practice or continue to practice in Solomon Islands?
Secondly, it is a reality that Moti’s entry into Solomon Islands was not done in a proper way. He flew into Solomon Islands on board a PNG Military plane and landed on Munda. Moti on 18 December 2006 claimed he was legally entitled to enter, reside, remain and work in Solomon Islands (See Solomon Star 18 Dec 2006). It appears he based his claim on Section 37 Labour Act Cap 137 of Solomon Islands, therefore, he is entitled to enter and reside in Solomon Islands as stipulated under Section 8 (1) (a) Immigration Act Cap 60 of Solomon Islands. This is the normal process that any emigrant who wishes to come and work in Solomon Islands would have followed. One may argue that Moti has a valid work and immigration permit thus he has not broken any Solomon Islands laws.
This argument does have some merit but does it also provide the legal basis for Moti to enter Solomon Islands any how he wants? Were there Immigration Officials at the Munda airport to check Moti’s arrival documents? Under the Civil Aviation Act Cap 47 it is quite clear that scheduled flights must have a license. In terms of an aircraft performing a journey through Solomon Islands which takes on or discharges passengers a permit must be obtained from the appropriate Authority. Was a license or permit obtained by the PNG Military plane that landed in Munda and discharged Moti? It appears the process surrounding how Moti entered is inconsistent with the legal expectation of how an emigrant should enter Solomon Islands. Is this how a person entitled to practice law in Solomon Islands and expected to hold the office of Attorney General should enter a sovereign country?
Some may advance the argument that Moti had no choice. He had to run away from PNG because of fear of political persecution not prosecution, thus, this gave him the exception for such entry. But, is the process of entry into Solomon Islands in accordance with the rule of law? What are the legal exceptions for Julian Moti to enter in such a way? If it is politically arranged, then what is the legal basis for such arrangement? Who should be held responsible? The public should know the truth for the interest of good governance. One could also argue that Moti was kidnapped in PNG and then discharged in Munda, therefore, the PNG government or Defense force should be held responsible for breach of civil aviation or immigration laws. Unfortunately, this is an unrealistic argument. Moti as a lawyer should know better – as a legal practitioner one is expected to demonstrate moral or ethical behaviour at all times!! Entering Solomon Islands on board an unscheduled flight without a license or permit – does this show a commitment to uphold moral or ethical standards?
Finally, it is a reality that charges has been laid against Julian Moti in Australia. It has been argued that these charges are politically manipulated because the sex allegations against Moti had already been cleared of in Vanuatu. This is a good argument but the truth of the matter remains, Moti has been charged according to the laws of his country, Australia. Respect for the rule of law demands Moti to face up to the charges and explain himself instead of depending on his political network through the Solomon Islands government to provide a secure place of protection. If the stories had been fabricated or evidence questioned, that is a matter for the courts of Australia to determine and not through a political bargain. But before that could be done Moti needs to be extradited. It seems this is where the complication is because the Solomon Islands government is requiring Australia to provide evidence before Moti could be extradited.
Under the Extradition Act Cap 59 of Solomon Islands it requires that Australia must make a formal request with a warrant of arrest of Moti to the Minister responsible for the extradition of Moti. According to the Australian High Commission Office in Solomon Islands a full extradition request had already been made by Australia to the Solomon Islands government (See SIBC 16 May 2007). Section 7 (3) of the Act provides that the Minister responsible on receipt of a formal request may issue an Order to proceed unless if the order for extradition is unlawful or not made in accordance to the Act. Based on the authority issued by the Minister, a Magistrate would then issue a warrant of the arrest of the person accused of an extradition offence. Afterwards, the Magistrate would proceed with a hearing as stated in Section 9 of the Extradition Act.
If the court is satisfied that the evidence tendered in support of the request for the extradition of that person establishes a prima facie case then the person would be extradited. This is the process that needs to be followed regarding the question on Moti’s extradition. It is clear Australia had made a formal request to the Solomon Islands government for the extradition of Moti. Whether the Minister responsible has acted on this request in accordance to the Extradition Act remains unknown. What is known is that the Solomon Islands government is asking Australia to respond to a series of questions as a condition to act on the request for the extradition of Moti. Is this the normal legal process for determining an extradition request? The extradition of Moti depends entirely on whether or not the extradition process will be followed successfully. However, the question remains whether a fit and proper person would include a person with charges hanging over his/her head, especially when the charges are serious in nature.
In short, there have been many discussions about the Moti issue. The members of the public have expressed their views and some have listened. There were facts shown and sources questioned in some circumstances and logic relied on but the points sometimes not taken. This seems to be the trend in terms of how the discussion on the Moti issue is progressing. Nonetheless, one thing must not be denied and that is the moral and ethical standards are fundamental on the issue of determining whether a candidate is entitled to practice law in Solomon Islands or be qualified to hold the office of Attorney General. Would a person with a legal qualification still make a good and respected lawyer in society without moral or ethical standards?
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