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Lobo v Limanilove [2002] SBHC 110; HC-CC 101 of 2001 (28 March 2002)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 101 of 2001

JOHN LOBO
(AS REPRESENTATIVE OF CHRISTIAN OUTREACH CENTRE
AND ITS MEMBERS AT LUSUKESA ZONE,
SAVULEI WARD, WEST GUADALCANAL)

-V-

MELKIORE LIMANILOVE
(CHAIRMAN OF TANGARARE ROMAN CATHOLIC
PARISH COUNCIL) AND OTHERS

HIGH COURT OF SOLOMON ISLANDS
(F. O. KABUI, J.)

Date of Hearing: 15th March 2002
Date of Judgment: 28th March 2002

Mr D. Hou for the Applicants
Mr P. Tegavota for the Respondents

JUDGMENT

(Kabui, J): This is an Originating Summons filed by the Applicant on behalf the Christian Outreach Centre “the C.O.C” on 25th May 2001 seeking a number of declarations. This Originating Summons was later amended on 28th November 2001. This Amended Originating Summons seeks the following declarations and consequential relief–

1. A Declaration that the Tangarare Parish Council through its servants and/or agents the Respondents either individually or otherwise in purporting to stop any other religious group or denomination and in particular the C.O.C. Church from carrying out any of its religious activities within the Tangarare Parish area without the approval of the said Council contravenes Section 11(1) of the Constitution and that the said Council has no power to make such a law or rule at all.

2. A further Declaration that each member of the C.O.C. Church who is also a member of a landholding tribe within the Tangarare Parish has the right to enjoy his/her constitutional right pursuant to section 11(1) of the constitution in community with other C.O.C. members either in their private premises or on any Public Places on land owned by the said member’s landholding group within the said Parish and/or any other land within the Parish.

3. Further and in the alternative, a Declaration that the Respondents and/or either of them breached the applicants said freedom pursuant to section 11(1) of the constitution on 8th October 2000 at Kokona/Vurahi village, and at Lambi on 13th April 2001 and 14th April 2001.

4. If the answers to 1, 2, 3 and/or alternatively, any of the said declarations herein is in the affirmative, that it may be determined that the applicants be entitled to a further order that the Respondents by themselves or their servants and/or agents or any of them or otherwise be restrained from doing the following acts or any of them that is to say (1) interfering with, attacking and disturbing any of the activities of Christian Outreach Centre by its members either in Public or Private and in particular manifesting and propagating their belief in worship, teaching, practice and observance (2) attacking and or chasing the said “COC” Church and its members to leave Lesukesa Zone (Tangarare Parish), Savelei Ward, West Guadalcanal.

5. An order that the Respondent pays the cost of this application.

At the hearing of this application, Counsel for the Applicant, Mr. Hou, withdrew paragraph 3 above on the ground that some of the Respondents were not in Court to be crossed examined on their affidavits regarding events that took place at Kokona/Vurahi village on 8th October 2000 and at Lambi on 13th and 14th on April 2001 Counsel for the Respondents, Mr. Tegavota, did not object but went on to concede the correctness of the declarations and the relief sought by the Applicants. Counsel for the Applicants, Mr. Hou, produced written submissions in Court, which he summarized by way of oral submissions. He then invited the Court to rule on his submissions

The Facts

The Tangarare Catholic Parish Council is divided into six zones. Each zone has a steering committee, which looks after the affairs of that particular zone. It is the policy of the Council that any religious group or denomination that intends to do or undertake any activity in the zones within its jurisdiction must first of all seek the permission of the Council. The factors that the Council would take into account in granting permission or otherwise are whether the steering committee in the zone being affected directly does consent to the proposed activity or undertaking taking place in its area of jurisdiction. Furthermore, the Council would look at whether or not such activity or undertaking would cause ill-feeling and division within the community or breach of custom and acceptable standard of good behaviour or bad effect on the community or the religious group or denomination would co-operate with the leaders of the community into which such religious group or denomination would wish to come. The Applicant has alleged that the Respondents who are members of the Tangarare Catholic Parish did disturb them on two occasions whilst worshiping according to their faith. The COC appears to have been introduced into the Tangarare area of West Guadalcanal in 1994 by a man called Leone Tagarakamana. He was a graduate of the Balasuna Bible College in North Guadalcanal. He is now dead. He lived in the village of Tasiloko. In 1995, another man called Joseph Billy also graduated from the same College and went back to Tasiloko and continued with the COC work there. In 1996, the Applicant also graduated from the same College and again went back to Tasilioko. The work of the COC Pastors does cover places in and around Sumate, Tasiloko, Kokona, Kobiloko and Lambi. In fact, the alleged incidents of disturbance by the members of the Tangarare Catholic Parish took place in Kokona and Lambi. The presence and the religious activities of the Pastors of the COC began to cause ill- feelings in the Tangarare Catholic Parish. The activities of the Pastors of the COC were perceived by the Catholic Community there as being anti-Catholic. They wanted the members of the COC to move out elsewhere so as not to continue to disturb them and their belief in the Catholic Faith. A number of meetings and discussions aimed at resolving the issues between them have not been so far fruitful.

The Issues in Question

The first issue is whether the Tangarare Catholic Parish Council’s stand that any religious group or denomination wishing to enter and worship within its area of jurisdiction should first of all obtain permission from the Council. Counsel for the Applicant, Mr. Hou, argued that the position taken by the Council was inconsistent with section 11(1) of the Constitution of Solomon Islands and therefore unconstitutional. Section 11(1) states-

“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

(2) .................................
(3) .................................
(4) .................................
(5) .................................
(6) .................................
(7) .................................
(8) .................................”

In this section lies the freedom of conscience, which includes the freedom of thought and religion. This freedom includes freedom to change one’s religion or belief. This freedom also allows one by oneself or together with others to show and spread one’s religion or belief in the form of worship, teaching, practice and observance. This freedom cannot be taken away except with the consent of the person concerned. This means that no person can be forced by threat of any kind to change his or her thought or religion except by his or her consent to freely and willingly give up that consent. This in practice means, being converted in thought and belief to another thought and belief or vice versa. This freedom is personal and individualistic in nature to every person in Solomon Islands.

The second issue is whether each member of the COC who is also a member of a landholding tribe within the Tangarare Parish has the right to enjoy his or her constitutional right pursuant to section 11(1) of the Constitution in community with other COC members either in private or in public on land owned by the tribe within the said Parish or any other land within the said Parish. This issue is really part of the first issue except that it touches on ownership of land in respect of the COC members living within the Tangarare Parish who are from the Tangarare area and own land there.

Religion in Solomon Islands

Religion in this country is very important to the life of every person both in the olden days as well as today. It is the centre of life in the minds of every Solomon Islander. In the olden days, one’s devil was sacred and holy. It was a tambu not to be sworn at, laughed at, desecrated, or disowned in any way. A man’s devil was his power in his daily life. When Christianity came, Solomon Islanders embraced it with equal loyalty and commitment. They treated the new God as the substitute for what used to be their devil. Anyone who reads about the history of the early missionaries will know that the five main churches in Solomon Islands are the United Church used to be called the Methodist Church, the Anglican Church, the S.S.E. Church, the Seven Day Adventist Church and Catholic Church. One will also notice that the other religious bodies in Solomon Islands are really the off-shoots of one or the other of the five main Churches. The most affected Church amongst the five is what used to be called the S. S. E. Mission now the S.S.E. Church. The Jehovah’s Witness, the Bahai Faith, the Baptist Church, the Assembly of God, the Bible Way Centre are all off-shoots of the S.S.E. Mission now the S.S.E. Church. This process of chipping-off as it were pieces off the S.S.E. Church can still be seen today although no one wants to argue for or against it openly. This gradual erosion that has been taking place in the S.S.E. Church has spread to the Anglican Church following the coming of the Revival Movement in Solomon Islands in recent years. The Rhema Church and Church of the Living Word and so on are some of the examples of Christians who were formerly Anglicans but chose to take another route to salvation. The COC and other small groups of worshippers within the five main Churches are also active within our Christian Community in Solomon Islands. This trend is obviously already affecting the Catholic Church. The point I am making is that already Christians in Solomon Islands have been changing their belief in one religion by being converted to another and vice versa in Solomon Islands. I take judicial notice of this fact and also of what has been happening to the Churches in Solomon Islands. The Catholic Church like the other main Churches will inevitably be affected by this predominantly revival trend. I do understand the feeling and perception of the Catholic Community in the Tangarare Parish about the presence of the COC in their area. Already the co-existence of different religious groups in the same community is not a new phenomenon in Solomon Islands. Differences in the manner of worship and tenets may arise from time to time but understanding and tolerance have always been the champions of harmony and acceptance within the communities in Solomon Islands.

Tolerance of the rights of others

Section 3 of the Constitution lays down the fundamental rights and freedoms of every person in Solomon Islands irrespective of his or her race, place of origin, political opinions, colour, creed, or sex. The existence of these rights and freedoms of the individual are subject to the rights and freedoms of others and in the public interest. This section explains the extent or limits of the fundamental rights and freedoms set out in Chapter 2 of the Constitution. Specifically, section 11(6)(a) and (b) of the Constitution sets out exceptional circumstances where the rights and freedoms of religion can be curtailed by the State. These rights and freedoms are therefore not absolute in themselves. These limitations are necessary to protect the rights and freedoms of others. That is to say, they are designed to protect the rights and freedoms of other individuals in their enjoyment of the same rights and freedoms that are due to every person in Solomon Islands under the Constitution. This means that in the context of the freedom of conscience, which includes the freedom of thought and religion, the rights and freedoms of others to do the same must also be respected. Applied to this case, it means that the rights and freedoms of the Catholic Community in the Tangarare Parish must also be respected by the members of the COC and vice versa. How then should the balance b struck? This is the difficult part of the balancing exercise, which calls for great restraint, maturity, understanding, and sensitivity on the part of the COC in its methods of worship lest those methods hurt the feeling of others of the Catholic Faith and thereby antagonize them. In practice, it means abstaining from criticizing the Catholic Faith in all its tenets and worship practice in all its forms. Practice of religion means different things from denomination to denomination. In one case in Western Samoa, it means this. To use the words of Chief Justice R. J.B. St. John, it means “Practice of religion includes every manifestation of religious life. It includes wearing of insignia, mode of dress, and every activity generated by religious observance such as choir, contributions towards church projects or contributions towards any projects which is connected with the practice of any religion or observance of religious rites”. (See Tariu Tuivaiti v. Silas Fa’amalaga & Others [1990-1993] 1WSLR 17). However, in the case of use of musical instruments in worship the Supreme Court in India had ruled that the Police must ensure that the Church of God (Full Gospel) in India did turn their speakers down. In that case, the Church used loudspeakers and musical instruments during services in the Church prayer hall causing excessive noise. The local residents complained to the Police but the Church said that the motive behind the complaint was to prevent it from pursuing its religious activities. In its judgment, the Court said that the right to practice religion was not absolute and did not permit the forcing of any citizen to hear anything against his or her will. It concluded that in a civilized society religious activities disturbing the peace of others could not be justified and this was demonstrated by the fact that no religion prescribed or preached that prayers must be performed through voice amplifiers or by beating drums (see Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association in “Commonwealth Human Rights Law Digest”: Issue 2 December, 2001, pp. 237-238). The observation note at page 238 says that a particular fundamental right cannot exist in isolation in a water-tight compartment. It goes on to say that one person’s fundamental right has to co-exist in harmony with the exercise of another fundamental right by others. In Solomon Islands, it is a criminal offence under section 131 of the Penal Code Act (Cap. 26) for any person to destroy or defile any place of worship or any object which is held sacred by any class of persons with the intention of insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion. The penalty for this offence is two years imprisonment or with a fine or with both. It is also a criminal offence under section 135 of the Penal Code Act for any person to deliberately by intention hurt the religious feelings of any other person in Solomon Islands. The penalty for this offence is imprisonment for one year. Clearly, the criminal law also protects religion in Solomon Islands. There is therefore a balance in the eyes of the law to be maintained in society in the exercise of one’s freedom of religion. This balance is of course one that balances the rights and freedoms of persons in society as against those of others in their religious beliefs. The State as I have said above however may intervene by legislation under 11 (6) (a) of the Constitution in the interest of defence, public safety, public order, public morality, or public health. Under section 11(6) (b) of the Constitution, the State may also intervene for the purpose of protecting the rights and freedoms of other persons, including the right to practice and observe any religion without the unsolicited intervention of members of any other religion. In section 11(6) (a) and (b) above, the provision to the contrary or the thing done under the authority thereof must be shown to be reasonably justifiable in a democratic society. Again, the Supreme Court in India as regards the co-existence of conflicting rights and freedoms, has said that where it is not possible for harmony to exist between the fundamental rights and freedoms of persons in conflict over religion, the State must step in to right the imbalance between competing interests in the interests of overall social welfare (see Acharya Mahrashi Narendra Prasadji Anand Prasdaja Maharaj and Others v. The State of Gujarat and Others 1975 (1) SCC 11, p238 of “Commonwealth Human Rights Law Digest”, Issue 2, December, 2001). I must however, point out that this stage is yet to be reached in Solomon Islands and that the context in the State of Gujarat in India may not be necessarily the same as in Solomon Islands. In that case, the facts are not available to be read and I do not therefore dare be conclusive on this point. According to Mr. Belamataga’s affidavit filed on 7th November 2001, the starting point of the spread of COC teaching was the late Leone Tagarakamana. His wife comes from Reko Village near Balasuna in Tasimboko in North Guadalcanal. I assume that the late Leone Tagarakamana was a former Catholic from the Tangarare area. By being in his wife’s village, he somehow became interested in attending the Balasuna Bible College and did attend it. His wife must have been the connection in this regard. This was way back in 1994. Having graduated, he returned to Tasiloko village in the Tangarare area and started the work of the COC there. He started by first visiting families and individuals. By 1995, he began to attract followers to the COC teaching. Joseph Billy was the second person to attend the Balasuna Bible College, followed by John Lobo of Kokona village the Applicant in this case. The number of members of the COC grew and they began to preach in public places around Sumate, Tasiloko, Kobiloko and Lambi. Mr. Belamataga alleged that the members of the COC went beyond the normal preaching of the Gospel by saying the following things against the Catholic Church-

(a) The rosaries used by the Catholics were Japanese marbles and necklaces;

(b) All the statutes used in the Catholic Church were idols;

(c) Mary the mother God was just a woman with breasts;

(d) The statute of Mary was just a stone made by man;

(e) The Catholic religious feasts should not be observed;

(f) They threw the Catholic rosaries and statutes in the sea.

I suppose they did this to their own rosaries and statutes rather than doing this to the rosaries and statutes in the possession of others who are still members of the Catholic Church.

As regards custom practices, the COC said-

(a) funeral feasts were useless and should not be held;

(b) there should not be mourning at the time of death;

(c) there should not be payment of compensation for breach of any custom such as swearing, stealing or committing adultery etc. for prayer and forgiveness were the Christian substitutes.

According to Belamataga, the set of rules issued by the Tangarare Catholic Parish was not to prevent the members of the COC from worshipping or propagating their faith but to ensure that both the Catholic and the COC members respected each other in their respective faith. These allegations were supported by Melkiore Limanilove in his affidavit filed on 5th November 2001. They were however, refuted by John Lobo, the Applicant, in his affidavit dated 14th November 2001. There is therefore a current stalemate over this issue between these two communities. As stated in Exhibit “C’’ in John Lobo’s affidavit filed on 31st October 2001, the COC was a Revival Ministry and had a vision to reach out with the gospel of Jesus Christ. He pointed out in Exhibit “C’’ that his Church had been informed of the position of the Catholic Community only a week before. Exhibit “C” was a reply dated 20th April 2001 in response to a letter Exhibit “D” dated 14th May 2001 written by the Head Catechist Tuanipupue and landowner Mr. Bana. Exhibit “D” made the point that the COC came into the Tangarare Catholic Community without permission, had caused divisions within their community and were preaching to persons who already were Christians. It said that because of this, they must leave because the land they occupied was not their land. I fully understand the feelings of the Tangarare Catholic Community. I do however take judicial notice of the fact that this right and freedom of religion under the Constitution when exercised by individuals has the tendency of creating division between families and close relatives. It runs counter to the Melanesian concept of a family unit in terms of togetherness in doing things and meeting custom obligations. Division within the family context can be devastating in terms of compromising the Melanesian concept of the family acting together in a common cause. Some examples will serve to illustrate this point. One common one is the payment of bride-price for a bride to join the family. Always, the payment of bride-price is a family effort on the part of the boy’s family. Contributions of money and non-cash items are expected from sisters, brothers, uncles, cousins and other relatives in the extended family circle. Quite often this expectation does fall through because a sister, brother uncle or cousin says he or she is unable to help due to his or her religious belief on the issue of paying bride-price in custom. Such decision is often respected but at the same time the question is asked as to what value is there in a blood relative who does not help in difficult times. This situation often creates a sense of displeasure, and alienation and can lead to division in the same family for obvious reasons. The other example is payment of compensation for breach of custom. This practice is often shunned by some Christians on religious ground as being unchristian. Whilst some religious groups are entitled to hold this view, other Christians do not see any conflict between their faith and payment of compensation for breach of custom. Other religious groups do not also observe funeral feasts on religious grounds because they say it is unchristian to do so. I suppose the acceptance of these religious teaching is really a matter for the individual to consider and decide either to accept or reject such teaching. To attempt by policy to prevent or shut out the members of the congregation from being exposed to new religious teaching of their own free choice is to be in breach of the rights and freedoms of the individual to change his or her religion, or faith etc. I suppose an individual who changes his or her religion or faith does so for personal benefit in terms of a new enlightenment in spirituality than for the benefit of his or her community or anything else. That is why the Constitution speaks in terms of the individual having a right and freedom of conscience, which includes the freedom of religion. The freedom of religion is a personal thing rather than a communal or denominational matter to be discussed and decided by group of persons in the community. I can understand the displeasure or even anger within a Christian denomination that loses some of its members to another Christian group. But the point surely is that an individual who changes his or her religion because of personal conviction has done so in the exercise of his or her constitutional right and freedom and cannot be persecuted for having done so. The spread of religion is not a disease to be prevented from spreading and must be cured if it has already spread and affected people. The only restriction is that the spread of religion must have regard to the rights and freedoms of others. There is that limitation to be observed by all persons. In this regard, the Tangarare Parish Council’s policy expressed through its servants or agents either alone or in community with others to stop the COC from carrying out any religious activities within the Tangarare Parish area without the approval of that Council did contravene section 11(1) of the Constitution. The Council’s conduct was therefore unconstitutional in that regard. The Council has no legal power or otherwise to do what it did in this case. If any other law, which is inconsistent with the Constitution, is void against the Constitution being the supreme law of this land, I see no reason why the conduct of the Tangarare Parish Council cannot be void for the same reason. I would grant the declaration sought by the Applicant in paragraph 1 of the Originating Summons in so far as it affects the COC only in this case. That is to say, it is not a blanket declaration so as to open the flood-gates to any other religious group or denomination waiting on the edge to devour the Catholic congregation in the Tangarare area on Guadalcanal. The way the paragraph 1 of the Originating Summons was cast seems to be suggesting that conclusion. I would however not go beyond the intention of section 18(1) of the Constitution which restricts the locus standi only to any person who alleges that he or she has suffered as a result of a contravention of any of the rights and freedoms set out in sections 3 to 16 of the Constitution giving him or her the right to apply to the High Court for redress. I would also grant the declaration sought in paragraph 2 in the Originating Summons. That is to say, each member of the COC who is a member of any landholding group within the Tangarare Parish has the right and freedom to enjoy his or her constitutional right of conscience pursuant to section 11(1) of the Constitution either alone or in community with others in private or in public on land owned by them or any other land properly acquired for that purpose within the Tangarare Parish. The Applicant has also asked that I consider granting an injunction against the Respondents by themselves or their servants, agents or any of them restraining them from interfering with, attacking or disturbing any of the activities of the COC by its members in private or in public in manifesting and propagating their belief in worship, teaching, practice and observance. In particular, the Applicant has asked that the Respondent by themselves or their servants agents or any of them be restrained from attacking or chasing the members of the COC from the Lesukesa zone in the Tangarare Parish of the Savulei Ward West Guadalcanal. I cannot grant the order sought for two reasons. First, the Applicant at the hearing of this Originating Summons withdrew paragraph 3 of that Summons which sought a declaration for alleged breach of constitutional rights and freedoms contrary to section 11(1) of the Constitution in respect of incidents that took place on 8th October 2000 at Kokona/Vurahi and on 13th and 14th April 2001 at Lambi. There was therefore no evidence upon which I can express an opinion in this regard. Secondly, the granting of such injunction would tend to suggest that the members of the Catholic Community at Tangarare should not do anything further to exercise their constitutional rights and freedoms in the Catholic Faith. To do so by the granting of an injunction per se would send a wrong signal in that the Catholic Community at Tangarare should no longer be complaining about the work of the COC because the High Court has ruled in their favour. Any idea to suffocate the Catholic Community at Tangarare with a blanket injunction so as to free the members of the COC to do whatever they like in propagating their faith cannot be accepted. The constitutional right and freedom to worship freely under the Constitution is not a sword but a right and freedom co-exist with others in the exercise of one’s freedom to worship in one’s religion. The granting of the declarations in this case does not mean that the members of the COC can override the rights and freedoms of the members of the Catholic Church at Tangarare Parish to practice their faith. What it means is that the Tangarare Parish Council must now stop doing acts aimed at stopping the members of the COC from practicing their faith provided they do not infringe upon the constitutional rights and freedoms of the members of the Catholic Church at Tangarare. As I have said, it is a matter of keeping the proper balance between different denominations in the communities in Solomon Islands.

Each party will meet his own costs.

Justice F.O. Kabui
Judge