Solomon Islands 1978 Constitution (reviewed 2018) - Page 14 of 17

Table of Contents

CHAPTER XIV. MISCELLANEOUS

133. Powers of appointment and acting appointments

Any reference in this Constitution to [the] power to make appointments to any public office shall be construed as including a reference to [the] power to make appointments on promotion and transfer to that office and [the] power to appoint a person to act in that office during any period during which it is vacant or the holder thereof is unable to perform the functions of that office.
In this Constitution, unless the context otherwise requires, a reference to the holder of an office by the term designating his office shall be construed as including a reference to any person who is for the time being lawfully acting or performing the functions of that office.
Where by this Constitution any person is directed, or power is conferred on any person or authority to appoint a person, to act in or otherwise perform the functions of an office if the holder thereof is unable to perform the functions of that office, the validity of any performance of those functions by the person so directed or of any appointment made in exercise of that power shall not be called in question in any court on the ground that the holder of that office is not unable to perform the functions of the office.

134. Reappointments and concurrent appointments

Where any person has vacated any office established by this Constitution, he may, if qualified, again be appointed or elected to hold that office in accordance with the provisions of this Constitution.
Whenever the holder of any office constituted by or under this Constitution, or any public office otherwise constituted, is on leave of absence pending relinquishment of his office—
1. another person may be appointed to that office; and
2. that person shall, for the purpose of any function of that office, be deemed to be the sole holder of that office.

135. Removal from office

References in this Constitution to the power to remove a public officer from his office shall be construed as including references to any power conferred by any law to require or permit that officer to retire from the public service and to any power or right to terminate a contract on which a person is employed as a public officer and to determine whether any such contract or shall not be renewed:Provided that—
1. nothing in this subsection shall be construed as conferring on any person or authority power to require any judge of the High Court or the Court of Appeal, the Ombudsman, the Director of Public Prosecutions, the Public Solicitor, the Commissioner of Police or the Auditor-General to retire from the public service; and
2. any power conferred by any law to permit a person to retire from the public service shall, in the case of any officer mentioned in the preceding paragraph or an officer who may be removed from office by some person or authority other than a Commission established by this Constitution, vest in the Commission or other authority that, if that officer had retired, would be the appropriate Commission or authority in relation to the awards of that officer under Section 132 of this Constitution.
Any provision of this Constitution that vests in any person or authority power to remove any public officer from his office shall be without prejudice to the power of any person or authority to abolish any office or to any law providing for the compulsory retirement of public officers generally or any class of public officer on attaining an age specified therein.

136. Resignations

Save as otherwise provided in Sections 34, 50 and 64 of this Constitution, any person who is appointed to or to act in any office established by this Constitution may resign from that office by writing under his hand addressed to the person by whom he was appointed; and the resignation of any person from any such office (including any seat in Parliament) by writing under his hand addressed in accordance with this Constitution to any other person shall take effect, and the office shall accordingly become vacant—

at such time or on such date (if any) as may be specified in the writing; or
when the writing is received by that other person,

whichever is the later:

Provided that the resignation may be withdrawn before it takes effect if the person to whom the resignation is addressed consents to its withdrawal.

137. Performance of functions of Commissions, etc

Any Commission established by this Constitution may by regulations make provision for regulating and facilitating the performance by the Commission of their functions under this Constitution.
Any decision by any such Commission shall require the concurrence of a majority of all the members thereof and, subject as aforesaid, the Commission may act notwithstanding the absence of any member:Provided that if in any particular case a vote of all the members is taken to decide the question and the votes cast are equally divided the Chairman shall exercise a casting vote.
Subject to the provisions of this section, any such Commission may regulate their own procedure.
In the exercise of their functions under this Constitution, no such Commission shall be subject to the direction or control of any other person or authority, except where otherwise provided by this Constitution.
In addition to the functions conferred upon them by or under this Constitution any such Commission shall have such powers and other functions (if any) as may be prescribed.
The validity of the transaction of business of any such Commission shall not be affected by the fact that some person who was not entitled to do so took part in the proceedings.
The provisions of subsections (1), (2), (3) and (4) of this section shall apply in relation to the Committee on the Prerogative of Mercy as they apply in relation to a Commissioner established by this Constitution.
The provisions of subsections (1), (2), (3) and (4) of this section shall apply in relation to a tribunal established for the purposes of Sections 14(4), 16(8), 87(6), 126(3) and 129(5) of this Constitution as they apply in relation to a Commission established by this Constitution, and any such tribunal shall have the same powers as the High Court in respect of the attendance and examination of witnesses (including the administration of oaths and the examination of witnesses abroad) and in respect of the production of documents.

138. Saving for jurisdiction of courts

No provision of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions under this Constitution shall be construed as precluding a court of law from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or any other law or should not perform those functions.

139. Power to amend and revoke instruments, etc

Where any power is conferred by this Constitution to make any proclamation, regulation, order or rule, or to give any direction or instructions, the power shall be construed as including the power, exercisable in like manner; to amend or revoke any such proclamation, regulation, order, rule, direction or instructions.

140. Consultation

Where any person or authority other than the Governor-General is directed by this Constitution to exercise any function after consultation with any other person or authority, that person or authority shall not be obliged to exercise that function in accordance with the advice of that other person or authority.
Where any person or authority is directed by any law to consult any other person or authority before taking any decision or action, that other person or authority must be given a genuine opportunity to present his or its views before the decision or action, as the case may be, is taken.

141. Oaths

Before entering upon the functions of his office a person to whom this section applies shall take and subscribe the oath of allegiance and such other oath (if any) as may be prescribed by Parliament.
This section applies to any person appointed to hold or to act in—
1. the office of any judge of the High Court or the Court of Appeal;
2. such other public offices as may be prescribed by Parliament; and
3. the office of member of any Commission established by this Constitution or of the Committee on the Prerogative of Mercy.

142. National Seal

There shall be a national seal bearing on it such device as National Parliament shall approve by resolution.

143. Establishment of certain offices

The offices specified in Sections 91 (Director of Public Prosecutions), 92 (Public Solicitor) and 96 (Ombudsman) shall be established no later than 8th July 1981.

144. Interpretation

In this Constitution, unless the context otherwise requires—
- “absolute majority” means at least one half of all the members plus one;
  “the Commonwealth” means Solomon Islands and any country to which Section 24 of this Constitution for the time being applies, and includes the dependencies of any such country;
  “the Crown” means the Crown in right of Solomon Islands;
  “customary law” means the rules of customary law prevailing in an area of Solomon Islands;
  
  “functions” includes rights, duties and powers;
  
  “the Gazette” means the Solomon Islands Gazette;
  
  “the Government” means Her Majesty’s Government of Solomon Islands;
  
  “the Governor-General” means the Governor-General of Solomon Islands;
  
  “the High Court” and “the Court of Appeal” mean respectively the High Court and the Court of Appeal established by this Constitution;
  
  “high judicial office” means the office of judge of a court having unlimited jurisdiction in civil and criminal matters or a court having jurisdiction in appeals from any such court;
  
  “Independence Day” means 7th July 1978;
  
  “legal representative” means a person entitled to practise as an advocate or a barrister and solicitor in Solomon Islands;
  
  “meeting” in relation to Parliament means any sittings of Parliament commencing when Parliament first meets after being summoned at any time, and terminating when Parliament is adjourned sine die or at the conclusion of a session;
  
  “oath” includes affirmation;
  
  “oath of allegiance” means such oath of allegiance as is prescribed in Schedule 1 to this Constitution;
  
  “officer of the government of Honiara City” means a person holding or acting in any office of emolument in the service of an authority of the government of Honiara City;
  
  “Parliament” means the National Parliament of Solomon Islands established by this Constitution;
  
  “the Police Force” means the Solomon Islands Police Force;
  
  “prescribed” means prescribed in a law: Provided that—
  
  in relation to anything that may be prescribed only by Parliament, it means prescribed in an Act of Parliament; and
  
  in relation to anything that may be prescribed only by some other specified person or authority, it means prescribed in an order made by that other person or authority;
  
  “Correctional Service” means the Correctional Service of Solomon Islands;
  
  “provincial government officer” means a person holding or acting in any office of emolument in the service of a provincial government;
  
  “public office” means, subject to the provisions of the next following section, an office of emolument in the public service;
  
  “public officer” means a person holding or acting in any public office;
  
  “public service” means the service of the Crown in a civil capacity in respect of the government of Solomon Islands;
  
  “session” means the sittings of Parliament commencing when Parliament first meets after its prorogation or dissolution at any time and ending when Parliament is prorogued or dissolved without having been prorogued;
  
  “sitting” means, in relation to Parliament, a period during which Parliament sits without adjournment and includes any period during Parliament is in committee;
  
  “Solomon Islands” mean the territory which immediately before Independence Day constituted the territory under Her Majesty’s protection known as the Solomon Islands;
  
  “the Speaker” means the Speaker of Parliament.
The provisions referring to Her Majesty shall extend to Her Majesty’s Heirs and Successors in the sovereignty of the United Kingdom of Great Britain and Northern Ireland.
Save as otherwise provided in this Constitution, the Interpretation Act 1889 shall apply, with the necessary adaptations, for the purpose of interpreting this Constitution, and otherwise in relation thereto, applies for the purpose of interpreting, and in relation to, Acts of the Parliament of the United Kingdom.

145. References to public office, etc

In this Constitution the expression “public office” shall be construed—
1. as including the office of any judge of the High Court or the Court of Appeal and the office of member of any other court of law in Solomon Islands, unless the context otherwise requires;
2. as not including—
  1. the office of any Minister, Leader of the Opposition, Leader of the Independent Members, Speaker or, member of Parliament; or
  2. the office of a member of any Commission established by the Constitution or of the Committee on the Prerogative of Mercy.
For the purposes of this Constitution a person shall not be treated as holding, or acting in, a public office by reason only that he—
1. is on leave of absence pending relinquishment of a public office, or is on leave of absence without salary from a public office;
2. is receiving a pension or other like allowance from the Crown;
3. is a special constable or a retired or reserve member of Her Majesty’s forces;
4. is an officer of the government of Honiara City;
5. is a provisional government officer; or
6. is the holder of an office in the service or appointment of the Crown, or is performing any function on behalf of the Crown, if the only payments he receives in respect of that office or those functions are by way of travelling or subsistence allowances or a refund of out-of-pocket expenses.