Opening Statement – Constituent Assembly
BY THE LEADER OF OPPOSITION, HON. MATTHEW WALE
Poorly written laws, passed solely for political gain, invite disaster. When such recklessness affects the Constitution, it risks a constitutional crisis. The Constitution (Amendment) (Constituent Assembly) Act 2023 has created this danger. Government’s negligence in leaving it to the last day of the deadline undermines the integrity of our Constitution and makes a mockery of it.
Observations on the Prime Minister’s Decision
Because of this, the Prime Minister’s decision to call the Constituent Assembly raises serious concerns about the reasonableness and legality of his exercise of power under Section 61(7) of the Constitution (Amendment) (Constituent Assembly) Act 2023.
While Section 61(7) grants the Prime Minister the authority to convene the Assembly, this power is not absolute. It is bounded by both the letter and the spirit of the law, which requires the Assembly to convene by 30th December 2024 to fulfill its Constitutional mandate.
Section 61(7)(a) and 61(7)(b) outline two critical purposes for the Assembly: (a) to consider, debate, and, where necessary, amend the Draft Constitution; and (b) to conduct the first vote to approve or reject the Draft Constitution, with or without amendments. These purposes demand a process that is thorough, deliberative, and reflective of the gravity of crafting a Constitution. Such a process requires adequate time.
To facilitate these objectives, Sections 61(11) to (14) outline further mandatory activities. These include adopting procedural rules, appointing a Coordinating Committee, forming thematic committees, and conducting substantive deliberations and voting. When read together, these provisions establish that the Assembly must not only convene by 30thDecember 2024, at the latest, but also perform its substantive functions within this timeframe. The deadline applies to the entire process, not merely the formal act of convening a meeting.
The Assembly cannot simply meet without fulfilling its purposes under Section 61(7)(a) and (b) or completing the mandatory activities outlined in Sections 61(11) to (14). A deadline for convening inherently extends to the purposes and activities tied to that convening. It would be nonsensical to argue that the Assembly could convene before the deadline but delay its substantive work indefinitely, or to a date after the deadline. There is no room whatsoever for the Assembly to operate after 30th December 2024. This would be a direct breach of the Constitution.
The Prime Minister’s decision to convene the Assembly on 30 December 2024, fails to allow any realistic opportunity to achieve the Constituent Assembly’s mandate. This decision appears to be a procedural manoeuvre to meet the technical requirement that the Assembly “shall sit at a date before 31 December 2024.” It disregards the substantive purposes and activities required under the Act. If this manoeuvre is being used as a way to overcome the Constitutional deadline, it is a futile exercise and a Constitutional breach.
Such an interpretation devalues the intent of Parliament, undermines the democratic process, and risks rendering the Assembly’s work questionable, ineffective, and illegitimate. This is too much uncertainty to impose on such an important process.
The Act demands that the Constituent Assembly convene in a manner that enables it to fully discharge its Constitutional responsibilities before the prescribed deadline. Calling the Assembly on the deadline betrays Government’s clear intent to ensure there is insufficient time for deliberation, debate, and decision-making, and is unreasonable and illegal use of power.
This decision fails to meet the requirements of the Act. It disregards the procedural framework established by Sections 61(7) and 61(11) to (14) and reduces a solemn constitutional mandate to a mere technicality.
The Act was passed last year with a clear deadline. The Prime Minister had ample time to issue a commencement notice, call the Assembly, which would then have allowed the Assembly to undertake its work with deliberate speed. This would have provided sufficient time to address the considerable responsibilities outlined in the Act.
Instead, the commencement notice was only gazetted in November 2024, leaving insufficient time for meaningful deliberation and substantive decision making. This delay raises serious questions about the Government’s commitment to the process. Their inaction has directly jeopardized the Assembly’s ability to fulfill its Constitutional mandate. Government cannot shift the blame elsewhere.
As it stands, the legitimacy of this sitting is questionable, as the decision of the Prime Minister to call this meeting fails to meet the requirements of the Constitution, as amended by the Constitution (Amendment) (Constituent Assembly) Act 2023.
Observations on the Act
The legitimacy of this sitting is also called into question based on the poorly drafted nature of the Act itself. The poorly drafted Act sets the Constituent Assembly up for failure. Its gaps fundamentally undermine the legitimacy of the Assembly’s process and decisions. I hope that this was not by design.
At the outset is the absence of a statutory quorum requirement. Prior to the rules of procedure being adopted, what is the quorum requirement for this meeting, and under what law is that prescribed? This omission strikes at the core of the Assembly’s credibility and legitimacy and brings the adoption of the rules of procedure itself under question.
Section 61(11)(a) compounds this issue with circular logic. It requires the Assembly to adopt its own procedural rules without first ensuring quorum. If this foundational step occurs without adequate representation, the validity of those rules becomes legally questionable. This flaw exposes the process to legal challenges, subverts the Act’s intent, and risks delegitimizing the Assembly’s decisions.
This is a matter of Constitutional import and no reliance on informal norms or political consensus can replace the need for clear legal safeguards. A quorum requirement must be enshrined in the primary law to ensure fairness and legitimacy. Without it, the Assembly’s process and decisions have no legitimacy.
The absence of transitional provisions in the Constitution (Amendment) (Constituent Assembly) Act 2023 is another significant gap. Transitional provisions are essential in law to guide processes during periods of institutional change or setup, such as the Constituent Assembly. Their absence here leaves critical questions unanswered about how the Assembly should organize itself.
For instance, the Act requires the adoption of procedural rules to enable the Assembly to fulfill its Constitutional mandate. Section 61(4)(2) states, “For the conduct of the Constituent Assembly, the Constitutional Reform Unit of the Office of the Prime Minister prepares the draft rules of procedure.” Section 61(11)(a) further provides that the Assembly “adopts the rules of procedure after considering the draft rules proposed to it.”
Under our legal system, Parliament holds the exclusive power to make laws and delegates this authority to other bodies only where explicitly provided. The Act does not delegate any regulation making powers to the Prime Minister, that could be used to make regulations, to provide rules for the first meeting of the Constituent Assembly prior to it adopting its proposed rules of procedure. Because of this, the Constituent Assembly has no prescribed process to give effect to 61(11)(a). This brings into question any procedure that is used to give effect to 61(11)(a).
Furthermore, neither the Speaker nor the Prime Minister have the power under the Act to introduce rules of procedure for the Assembly’s consideration and adoption. Without clear and expressed legal authority, the Assembly cannot adopt the framework necessary to fulfill its statutory mandate. Simply put, this Assembly cannot move forward in a lawful way, because neither the Speaker nor the Prime Minister have the power to introduce the rules of procedure. Any attempt by the Speaker or Prime Minister to introduce procedural rules without explicit authority would be unlawful.
The lack of transitional provisions is part of the Act’s design flaw. By failing to establish a process for the Assembly’s initial steps, the Act undermines its own purpose. Transitional provisions would have provided clear legal authority for someone, such as the Speaker or Prime Minister, to introduce procedural rules. This would have ensured the Assembly could begin its work in an orderly and legitimate manner.
The Assembly’s legitimacy is further undermined by the lack of legal authority for the appointment of the 20 nominated non-elected members. Sections 61(8)(b) and 61(8)(c) allow for the nomination of 20 non-elected members in the Assembly. However, the Act fails to specify the method of their appointment or delegate the power to appoint these members to any person or body. Without explicit legal provisions, any attempt to appoint these 20 members is not only procedurally flawed but also legally invalid.
A quorum requirement, transitional provisions, and legally valid appointments are essential to the legality of the Constituent Assembly, its functions, and its decisions. Without addressing these deficiencies, the Assembly’s work remains fundamentally flawed and illegitimate.
Further compounding these problems is the complete omission of preparatory matters essential to the Assembly’s decision-making process. Before the Assembly can meaningfully deliberate on the Draft Federal Constitution, critical preparatory work must be completed. Most notably absent in this preparatory work is the cost/financial analysis of the proposed federal system.
A cost analysis is critical for any decision-making process involving such a significant structural shift. The financial implications of a federal system will affect every facet of governance, from resource allocation to service delivery, and must be understood beforehand. Without this information, Assembly members will be left to deliberate in an informational vacuum, rendering their decisions uninformed and incomplete. This is an unfair burden to impose on the Constituent Assembly, and I hope it is not by design.
All these problems were entirely avoidable. This current mess stems from half-baked Bills that are forced through Parliament, driven more by political point-scoring than a genuine interest in good governance. Reckless legislative drafting has become a pattern, leaving us grappling with laws that are dressed up as solutions but offer none. Politicians score points, while the people continue to suffer.
The same mistake, I fear, is being repeated now with the Constituent Assembly process. Repeating it, however, would take it from the realm of mistakes into gross negligence.
Way forward
Yet this situation is not beyond repair. The challenges we face can still be addressed, together.
Firstly, the Constitution (Amendment) (Constituent Assembly) Act 2023, riddled with flaws and gaps, must be repealed, in its entirety. If we are to correct this mess, we must address it directly at its source.
Secondly, Government must introduce a new general constitutional amendment empowering Parliament to legislate on the issue of Federal Government. This would enable Parliament to enact proper legislation that facilitates the establishment and operation of a Constituent Assembly, ensuring it functions legally and effectively. Such a legislation would delegate regulation making powers to ensure efficient and smooth operation of the Constituent Assembly.
These legislative priorities must be addressed as soon as early 2025.
Moving forward, we must give national issues the weight and gravity they demand. Especially matters that touch the very lives of Solomon Islanders. The Federal Constitution is one such issue. Poorly drafted laws, last minute decisions, and political gamesmanship may betray insincerity, but they must not be allowed to undermine something so fundamental to our nation’s future. Let us, therefore, approach this process with the genuine sincerity it demands.
The Opposition Group and the Independent Group fully support a process to finalize a decision on the draft Federal Constitution. However, we insist that it be conducted lawfully and with sincerity.
These proceedings have descended into a blatant mockery of our Constitution. The Constitution (Constituent) (Amendment) Act 2023 will be rendered void by 31st December 2024, leaving this Assembly devoid of any meaningful purpose or authority to carry out its work. I therefore call upon the Chairman of the Constituent Assembly to act decisively by terminating these proceedings forthwith, allowing the rule of law to prevail and the natural course of justice to take its rightful place.
I hope the Government has learned from this abuse of the constitutional process and has the humility to return to Parliament to repeal the Constitution (Constituent) (Amendment) Act 2023. In its place, they should enact a general constitutional provision, along with legislation to establish and operationalize the Constituent Assembly, including the delegation of regulation-making powers to the Prime Minister.
