Attorney General v Speaker [1988] KICA 3; Civil Appeal No 3 of 1987 (14 April 1988)

IN THE COURT OF APPEAL OF KIRIBATI

Civil Jurisdiction

Civil Appeal No 3 of 1987

BETWEEN:

ATTORNEY-GENERAL
Appellant

AND

SPEAKER
Respondent

V.R. Altments for the Appellant
The respondent in person

Date of Hearing: 14th April, 1988
Delivery of Judgment: 14th April, 1988

JUDGMENT OF THE COURT
(Gibbs V. P., Frost, Donne, Dillon and Mitchell J.A.)

The Speaker of the Maneaba ni Maungatabu made application to the High Court for a declaration whether, in view of s. 32(5) of the Constitution of Kiribati, Beretitenti Ieremia Tabai was entitled to assume office as Beretitenti of Kiribati on 13th May 1987. No person was named as respondent to the summons but the learned Chief Justice ordered the Attorney-General to be joined as a defendant.

The application was apparently intended to be made under s. 88(6) of the Constitution, which, subject to the provisions of the Constitution, gives the High Court original jurisdiction to hear and determine any question as to the interpretation of the Constitution, on the application of the Beretitenti acting in accordance with the advice of Cabinet, the Attorney-General or the Speaker. The words of that subsection are in contrast to those of subsections (2) and (5) of s. 88, which give the High Court jurisdiction to make a declaration in certain circumstances not relevant to the present case. The application came before the Chief Justice who held that s. 88(6) empowers the Speaker to make application under that subsection only for the interpretation of a provision of the Constitution which touches his office or functions as Speaker; the Chief Justice added that the Beretitenti as Head of Government and Cabinet is given that power in the interest of the Cabinet system, that the Attorney-General is given the same power in the interest of the public and that the Speaker can apply in the interest of the Parliament and its members. He hold that the Speaker lacked the necessary interest in the present case. Although, in his opinion, that was enough to dispose of the case, he proceeded to determine the substantive issue, whether s. 32(5) of the Constitution precluded the Honourable Ieremia Tabai from assuming office as Beretitenti on 13th May 1987. He answered that question in the negative. He made no order as to costs.

Section 32(5) of the Constitution provides as follows:

"A person may assume office as Beretitenti after election on not more than three occasions." There is a proviso which is immaterial in the present case.

The facts were that immediately before the Kiribati Independence Day, the Honourable Ieremia Tabai held the office of Chief Minister under the Constitution. He therefore became the first Beretitenti and was deemed to have assumed office at the coming into operation of the Constitution, by virtue of s. 31 of the Constitution. In 1982 the Honourable Ieremia Tabai again assumed office as Beretitenti, this time after election held pursuant to s. 32 of the Constitution. He assumed office once more after election in 1983. On the 13th May 1987 he again assumed office as Beretitenti after having been declared elected following the Presidential Election held on 12th May 1987.

It will be seen that the Honourable Ieremia Tabai in effect assumed office after election on three occasions - in 1982, 1983 and 1987. He was deemed to have assumed office on a fourth occasion- in 1979 - but that was virtue of s. 31 and not after an election.

This appeal is brought not by the Speaker but by the Attorney-General. He quite rightly did not complain of the substantive ruling that the Beretitenti was entitled to assume office in 1987. Rather, he complained that the Attorney-General was wrongly joined as a defendant (although he subsequently sought to withdraw that ground), and that the interpretation given to Section 88(6) of the Constitution was wrong in law.

It is apparent that the Attorney-General has no standing to bring this appeal. The only order that affected the Attorney-General was the interlocutory order joining him as a defendant. Since that order was interlocutory, no appeal from it can be brought without leave (see section 10(1) (f) of the Court of Appeal Act 1980) and no leave has been obtained. Leave should not be given because no further order has been made which in any way affects the Attorney-General.

The real interest, is a non-legal sense, of the Attorney-General lies in the fact that the learned Chief Justice has placed what the Attorney-General considers to be an unduly limited construction upon section 88(6), for it is submitted on behalf of the Attorney-General that on this construction the power of the Attorney-General to apply under that subsection for the determination of a question of interpretation would be similarly limited. In truth the remarks made by the learned Chief Justice regarding the position of the Attorney-General in relation to that section were obiter dicta and not binding, but in any case the Chief Justice drew a distinction between the power of the Speaker - to apply in the interest of the Parliament and its members - and the power of the Attorney-General - to apply in the interest of the public. However, it would not be proper for us to decide upon the submission of the Attorney-General as to the construction of the sub-section. An appeal may be brought against an order only by a party affected by that order. It may not be brought against reasons of judgement which do not form part of the decision. It is for that reason that it is desirable that formal orders be drawn up where an appeal is contemplated. In the present case, an appeal might have been brought by the Speaker, but he does not wish to take any part in this appeal. The Attorney-General was not affected by any order made in the present case, except the interlocutory order from which he needed leave to appeal. He was not entitled to appeal in the present case and is accordingly given leave to discontinue the appeal.

Vice President
Judge of Appeal
Judge of Appeal
Judge of Appeal
Judge of Appeal