Tokataake v Attorney-General [2003] KICA 4; Civil Appeal 01 of 2003 (23 April 2003)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT AUCKLAND
NEW ZEALAND

Civil Appeal No. 1 of 2003

UNDER THE CONSTITUTION SECTION 88(1)

IN THE MATTER of the General Election Proceeding on the Seventh Parliament following on the Division in the Maneaba ni Maungatabu on 27 March 2003

BETWEEN

WILLIE TOKATAAKE of Abemama,
Minister of Finance and Economic Planning in the Government of the Seventh Parliament, on his own behalf and as representative of nine other members of the Cabinet of the Government of the Seventh Parliament
Appellants

AND

ATTORNEY-GENERAL
for Taomati Iuta of South Tarawa as Speaker of the Seventh Parliament
First Respondent

AND

ATTORNEY-GENERAL
for Boutu Bio of South Tarawa as Chief Electoral Commissioner and the Electoral Commission
Second Respondents

Hearing: 22 April 2003

Coram: Casey JA
Hardie Boys JA
Tompkins JA

Counsel: David R James for the Appellants
Solicitor-General David Lambourne fur the Respondents

Judgment: 23 April 2003

[NB: Two words missing in para 14]

JUDGMENT OF THE COURT

[1] This appeal, which has been heard as a matter of urgency, is against a decision of the Chief Justice delivered in the High Court on 8 April 2003. The case raises an issue of constitutional importance, and counsel are agreed that this Court should address that issue; and further they have informed the Court that their clients will abide by the Court's decision, even though in giving it the Court is by-passing some preliminary procedural steps. The Court is appreciative of the willingness of counsel and their clients to ensure a prompt resolution of the problem that has arisen. We are appreciative too of the assistance counsel have given us, at such short notice.

[2] The substantive issue is as to the meaning of s 78(1)(b) of the Constitution of Kiribati which reads:

"78. (1) The Maneaba ni Maungatabu shall stand dissolved-

(a) ...

(b) if, in respect of any matter before the Maneaba, the Beretitenti notifies the Speaker that a vote on that matter raises an issue of confidence, and in a subsequent vote on that matter it is rejected by a majority of all the members of the Maneaba."

[3] On 27 March 2003, a monetary Bill was introduced to the Maneaba, and the Opposition indicating that it would oppose, the President declared it a confidence issue. The vote being taken, the Bill was rejected by 21 votes to 19. The Speaker thereupon held the Parliament to have been dissolved by virtue of s. 78(1)(b). The next day, 28 March, the Attorney-General applied to the High Court pursuant to s. 88(6) of the Constitution to determine this question:

"What does a majority of all members of the Maneaba ni Maungatabu mean:

(a) Does it mean a majority of the 42 seats of the members of the Maneaba ni Maungatabu which is the number of seats provided for elected members in the Maneaba ni Maungatabu? or

(b) Does it mean a majority of the 41 members of the Maneaba ni Maungatabu given that one member amongst the 42 elected members has already lost his seat?

[4] The learned Chief Justice held for the second meaning whereupon the present appellants applied to the High. court for leave to commence proceedings for mandamus and prohibition, and for orders declaring that the Speaker's ruling and the consequent calling of a general election by the Electoral Commission were unconstitutional; requiring the Speaker to reconvene the session of the Maneaba he had purported to dissolve; and prohibiting the Electoral Commission from proceeding further with a general election. The Chief Justice refused leave, for three reasons: that it was too late to give an effective and practical remedy; that the fundamental question remained that which he had already answered; and that even on the basis of the more extensive argument appellants' counsel was proposing to advance, the case would be most likely to succeed. It is from this judgment that the present appeal is brought but, as explained, this Court may nonetheless go straight to the fundamental question. Simply put, the appellants' case is that "a majority of all the members of the Maneaba" is 22 not 21, because the Constitution provides, for present purposes, for a membership of 42.

[5] This provision is in s. 53(1) which at the present time is follows:

"53. (1) Subject to the provisions of this section, the Maneaba ni Maungatabu shall be composed of-

(a) 40 elected members; [this number may be altered by the Maneaba: s. 53(4)]

(b) the member provided for in section 117 of this Constitution; and

(c) if he is not an elected member, the Attorney-General an ex officio member."

(Section 117 provides for a member from Banaban).

[6] This Parliament, the nation's seventh, had been elected late in 2002. The previous government had lost its majority and was dependent on support from a small third party. The Attorney-General was appointed from those elected, and so it had a total of 42 members. But in March 2003, after Parliament had held its first meeting, one member was disqualified for an electoral offence. The effect of a disqualification is that "the seat of [that] member... shall become vacant": s. 57. A by-election was called, but had not taken place by 27 March when the confidence vote came before the Maneaba. As a result, although the Constitution provided for 42 members, only 41 were entitled to attend and vote. In fact, only 40 were present and voted that day, as one was absent through illness.

[7] Mr James' forceful argument was, in essence, that in the context of this Constitution, and to ensure that full weight is given to its opening declaration that "the will of the people shall ultimately be paramount", the word "members" in the expression "a majority of all the members" in s 78(1)(b) refers to what he described as a "legislative voting office"; or in other words, the number of seats provided for by the Constitution, as distinct from the members for the time being elected to fill them. He argued that only thus would full effect be given to the word "shall" in S.53(1) - "The Maneaba ... shall be composed of ...", and only thus would one avoid disenfranchising the electors whose chosen representative had been disqualified, for their constituency would otherwise be ignored in this very important vote count. Further, counsel contended that the constitutional importance of the rejection of a confidence vote requires full weight to be given to the particular wording of S.78(1)(1) which calls for more than a simple majority vote.

[8] In the course of argument, the Court was referred to various provisions of the Constitution, and to a variety of constitutional cases and writings. The expression "a majority of all the members" appears only in S.78(1) of the Constitution. But in similar vein, there is s.69(2)(b) which enables the Maneaba to amend the Constitution "by the votes of not less than two-thirds of all the members of the Maneaba" Then there is S.74(2) which declares that "a quorum of members" means "the number of members that is 1 less than one-half the total number of members of the Maneaba"; and S. 77(2) which enables "one-third of the members of the Maneaba" to call for it to be summoned at any time. Although the Court is not called on to construe these various provisions, there is a strong similarity between them, making it clear that in certain circumstances much more is needed than for ordinary questions calling for decision by the Maneaba. These "shall be determined by a majority of the votes of the members present and voting": S.73(1).

[9] If one were to attempt a re-draft of S. 78(1)(b) in order plainly and unequivocally to give it the meaning Mr James would have the Court accept, the provision would have to read along these lines:

"it is rejected by such number of members as is equivalent to a majority of the total number of members for the time being provided by the Constitution."

Such cumbersome wording, or similar, could no doubt have been used. But it has not.

[10] Instead, there is the simple and well-understood word "members", which in ordinary usage refers to individual persons, and in the Constitution is distinguished from "seats." Thus, under s. 57 "the seat of an elected member" shall become vacant in certain eventualities, one being a dissolution of the Maneaba; and under s. 79(2) a by-election must be held within three months "of a member's seat falling vacant in the Maneaba in order to fill that seat." Section 58(1) is also pertinent. It provides that if an elected member is imprisoned by a Commonwealth Court "he shall forthwith cease to discharge his functions as a member of the Maneaba, and his seat shall become vacant at the expiration of a period of 30 days thereafter." By contrast, under s.57 the seat becomes vacant at once.

[11] In reality, s. 53 provides for both the number of seats and the number of members. The two normally coincide. But while the number of seats remains constant, at least during the term of a Maneaba, (and unless a new Attorney-General is appointed from outside Parliament), the number of members may decrease if any of the circumstances described in s. 57 arise. The ability to vote depends on the occupancy of a seat. A seat without an occupant obviously cannot vote. Nor logically can it be counted for the purposes of calculation on a confidence vote. Such an approach does not derogate from the special nature of a confidence vote; and if it can properly be said that it disenfranchises the voters in any seat - a proposition which does not attract us - then that is inevitably the result in any constitutional system where, for example, there is a time lapse between a seat becoming vacant and a new election being completed.

[12] Decisions of other Courts on different constitutional documents or different circumstances are of limited assistance. Thus, in Trites v Saint John (City) (1990) 109 NBR (2d) 158, Jones J in the New Brunswick Court of Queen's Bench held that a statutory requirement for a "majority of the whole council" meant a majority of all council members, notwithstanding that some had disqualified themselves from voting on the particular measure; it did not mean the majority of those voting. But that was a different situation from the present: those not voting were still council members. In Principality of the County of Cape Breton v The Town of North Sydney (1955) 40 MPR 287, a statute authorised the appointment of a valuation commission of three members but made no provision for the replacement of a member should one die; as in fact occurred. Tinsley CJ held that the situation was covered by a provision of the relevant Interpretation Act: that where a thing is to be done by more than two persons, a majority of them may do it. But before reaching that conclusion the learned Chief Justice referred to an American rule, applicable to corporations, that "in deciding whether a quorum of the board the requisite quorum is a majority of the entire board, as it would be constituted if all the vacancies were filled, and not a majority of the board as it remains with the vacancies unfilled." It may be that the American rule is of limited application; for closer to home, and of more direct relevance, is a decision of the Court of Appeal of Vanuatu in Carlot & others v Attorney-General & anor [1988] VUCA 5. The principal issue in that case was whether members of the Opposition who had boycotted proceedings of the Parliament had, as a result, vacated their seats. Argument in the Court of Appeal turned on the meaning of the expression "three consecutive sittings." For that was the extent of a member's absence that disqualified him or her. But in order for there to be a sitting, there had to be a quorum, and in the lower Court, Ward J had held that once the boycotting members had been unseated as a result of their absences, the number of members, and therefore the quorum, were reduced commensurately. This conclusion does not appear to have been challenged on appeal and was certainly accepted without demur by the Court of Appeal, for it was a necessary basis for its decision that the appellants had been properly unseated.

[13] Another helpful appellate decision from Vanuatu is Attorney-General & anor v Willy Jimmy & ors (Case 7 of 1996), but the relevant issue was different from the present in that it concerned the rights of members who had been merely suspended, to request for Parliament to be summoned. The Court did not need to decide the point, for in the circumstances it was a "a barren" one, suspended members lack the ability to exercise members' rights, . . . then such members cannot be taken into account in determining what constitutes a majority.

[14] It is a well accepted principle that a constitution in the Westminster model (as this one is, notwithstanding that Kiribati is a republic) is to be generous interpretation; but "that does not require the Courts, to reject the plain ordinary meaning of words": Attorney-General of v Director of Public Prosecutions [1983] 2 AC 672.

[15] In our view, the plain ordinary meaning of the words is that "member" refers to individuals. This view finds support in the two Vanuatu cases referred to above. Moreover, it does not detract from the special status given to a confidence vote (which, incidentally, is not found in many Westminster style constitutions), for such a vote does not require a simple majority, but a majority of all persons entitled to be recognised as members of the Maneaba. Thus, with one member absent through illness and one seat vacant, the Speaker was correct to rule that there had been a rejection by the requisite majority.

[16] For these reasons the appeal is dismissed. In the particular circumstances we make no order as to costs.

Casey JA
Hardie Boys JA
Tompkins JA