Bataroma v Attorney-General [2004] KICA 17; Civil Appeal 02 of 2003 (23 August 2004)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 2 of 2003

BETWEEN:

RAION BATAROMA
BINATAAKE TAWAIA
Appellants

AND:

ATTORNEY-GENERAL ON BEHALF
OF THE SPEAKER TO THE
MANEABA NI MAUNGATABU AND
THE CHIEF ELECTORAL
COMMISSIONER
Respondent

Coram:

Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Binataake Tawaia for the Appellants
David Lambourne, Solicitor General for the Respondent

Date of Hearing: 19 August 2004
Date of Judgment: 23 August 2004

JUDGMENT OF THE COURT

[1] Section 78(1)(b) of the Constitution of Kiribati provides that the Maneaba ni Maungatabu shall stand dissolved if a matter declared to be an issue of confidence is rejected by a majority of all the members of the Maneaba. On 27 March 2003, on an issue of confidence, a monetary bill was rejected by 21 votes to 19, whereupon the Speaker ruled that Parliament had been dissolved. As a consequence the Beretitenti ceased to hold office: S.33(2)(c) of the Constitution. The following day the Attorney-General applied to the High Court to determine the correctness of this ruling.

[2] At the time, one of the 42 members of the Maneaba had been disqualified. In the opinion of the Chief Justice, delivered on 8 April 2003, confirmed on appeal to this Court in a judgment delivered on 23 April 2003 in Willie Tokataake v Attorney-General Civil Appeal 1 of 2003, that meant that for the purposes of S.78(1)(b) there were then 41 members, and therefore a majority was 21. Accordingly, it was held that the Speaker's ruling was correct.

[3] On 2 May 2003 the present appellants issued an Originating Summons "on their own behalf as voters and representing voters electing at the Election of the Beretitenti in February 2003", complaining that their constitutional rights had been defeated because the dissolution had no basis in law and had unseated not only the duly elected members of the Maneaba but also the Beretitenti (who by virtue of S.33(5) of the Constitution was ineligible to stand for office again). The Originating Summons sought determination of the following questions which we reproduce as typed:

1. Whether or not it is intended that in calculating the number of members required by the term 'majority of all members of the Maneaba' for the purpose of S.78(1)(b) would mean that such number would not only be more than half the total number but would also have the majority of the whole Maneaba to can proceed, transact and vote on the matter so the method in calculating this number would be '1 more than the total number'?
   
2. Whether or not the appropriate and intended method for calculating the number of members required by the term 'majority of all members of the Maneaba' in a Maneaba having a total members is an odd number would be '1 more than the highest number that is more than one-half' in order to have the same considerations as in question 1?
   
3. Whether or not the appropriate and intended method for calculating the number of members required to vote rejecting the Monetary Bill moved to the Maneaba ni Maungatabu, the nation's seventh a 41 Member (following the Court of Appeal's decision in re Willie Tokataake) for the purpose of S.78(1)(b) would be 1 more than the number 41 that is more than one-half or 1 + (41/2 + ½) = 22 members?
   

[4] The Summons then sought these declarations:

That the announcement and ruling of the Speaker to the Maneaba ni Maungatabu on 24 March 2003 dissolving the Maneaba was void;

The Maneaba ni Maungatabu elected by Applicants in November and December 2002 had never stand dissolved and not come to an end;

All members of the Maneaba elected by Applicants on 26 November 2002 and on 6 December 2002 are still members of the Maneaba;

Teburoro Tito elected to be Beretitenti by Applicants in February 2003 is still in office;

And the new elections are not necessary.

[5] In the meantime the procedures for fresh elections had been set in motion, and by 14 May 2003 had been duly completed. A new legislature came into being, and a new Beretitenti was elected.

[6] These present proceedings came on for hearing before the Chief Justice on 19 May 2003 and he delivered judgment three days later. He decided the appeal on two grounds. The first was that it was far too late to give a remedy: "There has been a general election. A new Parliament has been elected. If we were now . . . . to go back to square one, to the 27 March, there would be confusion and uncertainty in the community, unrest even". He noted that the contention of the applicants was simply that a majority of the 41 members of the Maneaba was 22, not 21, and he held that that contention had been concluded against the applicants by this Court in its judgment of 23 April 2003. "The point is res judicata" he said.

[7] This present appeal was filed on 26 May 2003. Security for costs was duly fixed at $500, to be paid on or before 2 July 2003. The payment was not made. On 6 August 2003 the appellants filed an application for extension of time, seeking to have the appeal heard at the forthcoming sittings of this Court and to pay the security later. The Chief Justice refused that application. The security was finally paid on 29 April 2004.

[8] The original notice of appeal has been twice amended. We now have a lengthy document, much of it submission, and as well a most exhaustive written argument prepared by Mr Tawaia, who presented it on behalf of the appellants. We deal in turn with what we perceive to be the significant issues he raised.

[9] First, there is the issue of what constitutes a majority of 41 members. This issue was not debated in Willie Tokataake's case, for there what was in dispute was the meaning of the words "all the members", it being the then appellant's contention that this meant 42, not 41. That contention being rejected, the Court simply held that the requisite majority had been achieved; in other words, 21 members constituted a majority.

[10] The present appellants accept that there were at the relevant time 41 members of the Maneaba. But they contend that a majority of 41 is 22 thus requiring a margin of three. There are, they say, two possible meanings of the expression "a majority of all the members". One is "one over all rival members combined" and the other is "at least one half of all the members plus one". It was argued that the latter meaning is required in order to meet "an international standard of drafting", otherwise the wording would have been that used in some other constitutions to which we were referred. But of course every constitution must be construed in accordance with its own particular wording.

[11] Reference was also made to the decision of the Court of Appeal of the Solomon Islands in The Governor-General v Mamaloni, Civil Appeals 1 and 3 of 1993, judgment delivered 5 November 1993. The case was concerned with a constitutional provision that defined the expression "absolute majority" to mean "at least one half of all the members plus one" – unless the context required otherwise. As the Court pointed out, that definition is easy to apply where there is an even member of members. One half of the votes is not a majority: at least one more than half is needed. But where there is an uneven number of members the definition is impossible to apply – "one half of the members" being humanly unattainable. Accordingly, the context required a different meaning than that prescribed in the Constitution. Although the judgment does not say so specifically, it is clear that the Court considered that different meaning to be the ordinary meaning of "absolute majority", such as "one over all rivals combined".

[12] The present case is not concerned with an absolute majority, but as the Mamaloni case demonstrates, the only sensible meaning to be given to the expression "a majority of all members" in the present context is the obvious and ordinary one of "the greater number". Here, 21 members voted against the Bill and 19 for it. That was a majority of two. The appellants' case would have us take one half of 41, 20½, round it up to 21, and add 1, giving a required majority of three. We see no warrant for that, or sense in it.

[13] The next point taken by the appellants was that the Chief Justice dealt with the case in a manner that was contrary to the principles of natural justice, in that at the time of the hearing he was a member of the Council of State exercising the functions of the government pending fresh elections: S.49(2) of the Constitution. As we understand the point, it was that the Chief Justice could not fairly decide the case, because if he were to decide it in favour of the applicants the Council of State, and his membership of it, would come to an end. The case should therefore have been heard by the other High Court Judge.

[14] This is a new point. It was not taken in the High Court. We reject it. Indeed, to suggest that the Chief Justice would be biased in favour of an outcome that would enable him to continue in this very temporary office is nothing short of outrageous. In any event, in view of our decision on the central issue, the point is irrelevant.

[15] The third point was directed to the first of the grounds on which the Chief Justice held against the appellants, namely that it was too late to give a remedy. This point was elaborated in various ways, which it is unnecessary for us to detail, for the fact is that the remedy the appellants had sought was one within the discretion of the Court. The discretion must of course be exercised judicially, but the consequences of granting or refusing relief, particularly having regard to the public interest, are appropriately to be considered in the exercise of the discretion: Halsbury's Laws of England Re issue) 4^th ed Vol. 1(1) para 108. While theoretically possible, it would have been quite impracticable to revert to the situation pertaining on 27 March. In any event, for the reasons we have given, the remedy could not have been granted as a matter of law. There is no escape from the fact that the confidence vote was lost.

[16] The final point we should mention is the submission that because the appellants were not parties to the earlier case of Willie Tokataake the Chief Justice was wrong in his finding of res judicata.

[17] However, this point too is really irrelevant, and we see no need to deal with it. In the first place, as already indicated we have no doubt that the conclusion reached in Willie Tokataake's case was right. And in the second place, whether or not it was strictly correct to speak of res judicata, the Chief Justice was bound as a matter of law to follow this Court's decision in that earlier case. Even had he not agreed with it, he was required to follow it.

[18] For these reasons, the appeal is dismissed. The respondent is entitled to costs, to be agreed or failing agreement to be taxed by the Registrar.

Hardie Boys JA
Tompkins JA
Fisher JA