Teangana v Tong [2004] KICA 18; Civil Appeal 05 of 2003 (24 November 2004)

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

Civil Appeal No 5 of 2003

BETWEEN:

ETERA TEANGANA
THE SPEAKER OF THE MANEABA
NI MAUNGATABU
Appellant

AND:

ANOTE TONG
TE BERETITENTI OF THE REPUBLIC
OF KIRIBATI
Respondent

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Kirata Komwenga for the Appellants
David Lambourne, Solicitor General for the Respondent

Date of Hearing: 19 August 2004

Date of Judgment: November 2004

JUDGMENT OF THE COURT

[1] This appeal is from a judgment of the Chief Justice on an originating summons brought by His Excellency the Beretitenti, under s.88(6)(a) of the Constitution of Kiribati, to determine questions of interpretation of the Constitution. The matter is of some significance, for it concerns the powers and responsibilities of the Speaker in summoning the Maneaba ni Maungatabu, and the extent of the privilege which attaches to proceedings of the Maneaba.

[2] It will be helpful to set out first the relevant provisions of the Constitution and the Rules of Procedure of the Maneaba ni Maungatabu, beginning with the section under which the Court’s jurisdiction was invoked in this case.

[3] The High Court is given express jurisdiction in constitutional matters by s.88, of which it is necessary to mention only subsection (6), the provision under which these proceedings were brought:

(6) Subject to the provisions of this Constitution, the High Court shall have original jurisdiction to hear and determine any question as to the interpretation of this Constitution:

Provided that the following authorities only are entitled to make application to the High Court under this subsection –

[a] the Beretitenti, acting in accordance with the advice of the Cabinet;

[b] the Attorney-General; and

[c] the Speaker.

[4] There is a more general statutory jurisdiction pursuant to subsections (1) and (2) of s.88.

[5] Not to be overlooked, however, is the fact that as a court of record (see s 80(1) of the Constitution) the High Court has inherent jurisdiction at common law, in proceedings appropriately brought, to ensure compliance with the law, except to the extent that its jurisdiction may be expressly excluded: Joseph, Constitutional and Administrative Law in New Zealand, 2^nd ed, 2001, p.733. See too Minister of Police v Moala [1997] TOCA 1.

[6] Meetings of the Maneaba are dealt with by s.77 of the Constitution:

77(1) Subject to the provisions of this Constitution and of the rules of procedure of the Maneaba ni Maungatabu, each meeting of the Maneaba shall be held at such place within Kiribati and shall commence at such time as the Speaker may appoint.

(2) The Beretitenti or one-third of the members of the Maneaba may, subject to the provisions of this Constitution and of the rules of procedure of the Maneaba, advise the Speaker to summon the Maneaba at any time.

(3) Meetings of the Maneaba shall be held within thirty days of the second ballot in a general election and shall otherwise be held so that a period of twelve months does not intervene between the end of one meeting and the first sitting of the Maneaba in the next meeting.

[7] The Maneaba’s power to make rules of procedure is given by s.67 of the Constitution:

67 Subject to the provisions of this Constitution, the Maneaba ni Maungatabu may make rules of procedure for the regulation and orderly conduct of its proceedings.

[8] The rules of procedure provide in quite close detail the manner in which Parliamentary business is to be conducted, matters which in other parliaments might be contained in Standing Orders. But rule 7 goes further than such strictly internal procedural matters and indeed incorporates parts of s.77 of the Constitution:

There shall not be an interval of twelve months between the end of one meeting and the first sitting of the next meeting of the Maneaba. [Note: the words “more than” should be read between the words “of” and “twelve”.]

1. The Speaker shall be responsible for summoning the Maneaba and appointing a time and a place for meeting in accordance with the Constitution and these Rules.
   
2. The Beretitenti or one-third of the Members of the Maneaba may, subject to the Constitution and these Rules, advise the Speaker to summon the Maneaba at any time.
   
3. Notice of a meeting of the Maneaba shall be given by the Clerk to Members at least twenty-one clear days before the meeting is to commence.
   
4. [This provision has no present relevance.]
   
5. The Speaker may, in case of an emergency defined in Rule 67(2), dispense with such notice and call for the meeting at the earliest time convenient.
   

[9] Rule 67(1) and (2) read:

• [1] In calculating a period of a day or days named in these Rules no account shall be taken of Saturday, Sunday or Public Holiday.
  
• [2] ‘Emergency’, without limiting the generality of the expression, includes:-
  
  • [a] Imminent danger of war between Kiribati and other country or of warlike operations threatening national security; and
    
  • [b] A storm, flood, fire or outbreak of pestilence or infectious diseases or any other natural calamity whether similar to any such occurrence or not on such an extensive scale as to be likely to endanger the public safety or to deprive the community or any substantial proportion of the community of supplies or services essential to life; and
    
  • [c] (c) Action taken, or immediately threatened, by any person that is of such a nature, and on so extensive a scale, as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life.
    

[10] These rules thus fill out the more general directions contained in s.77 of the Constitution itself.

[11] The relevant facts are straightforward. On 9 July 2003, the day after the Beretitenti had been sworn into office, he received notice from the Speaker appointing 28 July as the date for the next meeting of the Maneaba. The letter was in these terms:

“His Excellency Te Beretitenti

Office of the Beretitenti

Bairiki

Your Excellency,

Second Meeting of the Eighth Maneaba ni Maungatabu

I have the honour to inform you that pursuant to Rule 7(1) of the Rules of Procedure of the Maneaba ni Maungatabu, I have appointed Monday the 28^th July 2003 as the date of commencement of the Second Meeting of the Eighth Maneaba ni Maungatabu.

I am of the view that there is a need to call the meeting of Parliament at the earliest for the reasons that a substantial portion of the Kiribati community have for quite sometimes been deprived of full supplies and services as a result of tight Government spending which arose from the unpassed budget when Parliament was dissolved early this year, and while considering the importance of your attendance to the annual meeting of Pacific Forum which begins from the 12^th through to the 20^thAugust 2003, it is important for me in the interest of the nation to call for the sitting of Parliament at the earliest and as pronounced above.

Given the emergent reasons stated above, it is necessary that in my capacity as Speaker, and in accordance with Rule 7(5) I suspend Rule 7(3).

Yours sincerely,

(Sgd) Hon Etera Teangana

Speaker of Parliament”

[12] The Beretitenti protested: the time allowed was, he said, insufficient for him to prepare his requisite policy statement, and his Cabinet had yet to take office. On 18 July, the Speaker issued a fresh notice changing the appointed date from 28 July to 5 August.

[13] Weekends needing to be excluded, this second notice was also of less than 21 days even counting from 9 July.

[14] On 22 July, the Beretitenti brought these proceedings, in order to challenge the Speaker’s decision that there was an emergency such as to warrant abridging the 21 days notice required by rule 7. The originating summons sought determination of the following questions:

• [1] Is it unconstitutional for the Speaker of the Maneaba ni Maungatabu to summon the Maneaba otherwise than in accordance with the Rules of Procedure?
  
• [2] Where there is, in fact, no emergency as defined by Rule 67(2) of the Rules of Procedure, is the decision by the Speaker of the Maneaba ni Maungatabu to convene the Maneaba on 5 August 2003, as evidenced by his notice dated 18 July 2003, in accordance with Section 77(1) of the Constitution?
  

[15] The case came before the Chief Justice on 28 July. The Speaker was on that day out of the country, but he had faxed a memorandum which counsel agreed should be placed before the Court. In it, the Speaker elaborated his reasons for concluding that there was an emergency warranting the action he had taken. We do not need to set out what he said. It must of course be accepted that he was gravely concerned about the country’s financial situation, and that he acted in good faith in what he believed to be the best interests of the nation. It may be noted that he did not use the word “emergency”, but the word “urgency”. It should be added that the Beretitenti adduced evidence intended to demonstrate that there was not in fact an emergency even of the kind the Speaker apprehended.

[16] The Chief Justice delivered judgment on 28 July 2003. It was of course limited to the single ground advanced before him, namely whether there was in fact an emergency within the purview of rule 7(5). He held first that s.77(1) of the Constitution requires the Speaker to observe both the Constitution and the Rules. He held further that the eiusdem generis rule meant that “the emergency, urgency, upon which the Speaker relies to justify calling Parliament together on short notice must be either imminent danger of war etc., or a natural disaster or an action likely ‘to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life’ or something like one of them”. In other words, there had to be a situation “which fits any of (a), (b) or (c) of the definition of ‘emergency’”. He concluded that the circumstances invoked by the Speaker did not constitute an emergency within the definition.

[17] Accordingly, he held that the Speaker was not entitled to abridge the time, and so he answered the two questions thus:

Yes.

No.

[18] In view of that, the Speaker issued a further notice in August, giving 21 clear days’ notice with the result that the session of the Maneaba commenced in September 2003.

[19] Nonetheless, and no doubt in order to have matters clarified, the Speaker has appealed. The immediate purpose of the proceedings has of course been achieved, and so to that extent this appeal is of academic interest only. However it raises issues which could be of importance for the future, and we deal with it on that basis.

[20] The original notice of appeal, filed on 29 August 2003, was amended as late as 23 June 2004. The amended notice states the grounds of appeal to be:

• [1] The Honourable Chief Justice erred in failing to find that the meeting of the Maneaba in question fell within the terms of the Constitution section 77(3), being the first meeting after the second ballot in a general election, so that it must be held within 30 days of that second ballot [i.e. 30 days from 4 July 2003] rendering moot any consideration of the Rules;
  
• [2] The Honourable Chief Justice erred in accepting that the Speaker’s interpretation of the Rules was open to scrutiny or the interpretation jurisdiction provided for in the Constitution section 88(6), in the absence of any breach by the Speaker of a constitutionally protected value;
  
• [3] The Honourable Chief Justice erred in finding that the Speaker’s determinations of the appropriate period of notice for summons of a meeting of the Maneaba are amenable to review in the manner demonstrated in the Judgment, where the Speaker’s evaluation of the public good was replaced by that of the Court, as the Speaker’s jurisdiction was within the purview of the Rules, which are within the privileges of the Maneaba as preserved and declared in the Constitution section 76;
  
• [4] The Honourable Chief Justice erred in his application of the ejusdem generis rule:
  
  • [a] as the Rules are not subject to the common law of statutory interpretation;
    

and, in any event,

[b] the matters listed in the Rules, r.67 as types of “Emergency”, are not all of one kind.

[21] The first of these grounds appears only in the amended notice of appeal. It is apparent that neither it, nor the second and third grounds, were raised in the High Court, yet the second and third are challenges to the very jurisdiction of that Court. That all three should be raised only on appeal, the first of them at the eleventh hour, is highly unsatisfactory. However, Mr Lambourne did not take objection to this Court dealing with them, and we will do so.

[22] The first ground is a point that was not considered by the Chief Justice for the very good reason that it was not raised before him. It turns on what is meant by “the second ballot in a general election”. Counsel for the respondent submitted that it refers to the election of the Beretitenti, which takes place following the election of the Maneaba: s.32 of the Constitution.

[23] These words do not appear elsewhere in the Constitution. They need to be read not only in the context of that document, but also in the context of the Elections Regulations promulgated in 1977. For the Constitution has no detailed provisions for the conduct of elections. These are provided by the Regulations, which predate the Constitution, but continue to be operative under it. Regulation 26 deals with the situations where two or more candidates gain an equal number of votes, or where the number of candidates elected is insufficient to fill the vacancy or vacancies. Then, there is to be another election.

[24] The reference in s.77(3) of the Constitution to “the second ballot in a general election” plainly refers to a second election held pursuant to regulation 26. The words are inapt to refer to the election of the Beretitenti. That is a second election, quite separate from the election of the Maneaba. It is not a second part of a single process, which the words “a second ballot” indicate. Moreover, the generally accepted meaning of the words “general election” is “election of members to a legislature”: Concise Oxford Dictionary. This meaning is carried into the Constitution. While the composition of the electorate for the election of the Beretitenti is the same as that for the Maneaba (s. 32(3)), the Constitution maintains a distinction between the two elections. It is the election of the Maneaba that is a general election: see s.33(1): “...the next election of Beretitenti after a general election”; and the same distinction in ss.35(1) and 49(2). Conclusively, there is s.132(1) which defines “general election” as “a general election of elected members of the Maneaba ni Maungatabu”.

[25] Accordingly, the first ground of appeal fails.

[26] The second and third grounds of appeal are difficult to understand as written, but counsel’s submissions made it clear that the essential point is whether rule 7 is covered by what is often called the internal proceedings privilege of parliament. The New Zealand Court of Appeal has explained that privilege in this way in its recent majority decision in Donna Awatere Huata v Prebble & Anor, judgment delivered on 16 July 2004:

“There is a well-established rule ...... that it is exclusively for the House itself to administer that part of statute law which relates to its internal proceedings. The courts will not exercise jurisdiction over legislation of that kind”.

[27] This quotation, taken out of context, must be qualified by adding that, in a country with a written constitution, the courts always have jurisdiction to remedy breaches of that constitution. Reference may be made to the judgment of the Court of Appeal of Western Samoa, delivered by Lord Cooke of Thorndon, in Ah Chong v Legislative Assembly of Western Samoa [1996] WSCA 2. The Judge said:

“There is a well-settled principle that what is said or done within the walls of a legislative assembly cannot be questioned in the Courts. It is recognised that the respective constitutional roles of the Courts and Parliament normally require the Courts to refrain from intervening in Parliamentary proceedings. Conflicts between the judicial and legislative organs of the State are to be avoided as far as possible. Generally speaking, a body such as the Legislative Assembly of Western Samoa is left free to regulate and determine its own internal procedure from time to time . . .

Of course, like all principles this one has its limits and they are not always easily discernible. One limit must be that a written constitution such as that of Western Samoa may place upon the Courts some duty of scrutinising Parliamentary proceedings for alleged breaches of constitutional requirements. Thus, while normally it is for a legislative assembly to determine the effect of its own orders and to depart from them if the assembly sees fit, a Constitution may displace that presumption by making compliance with the standing orders a condition of the validity of the legislation or, no doubt, of the validity of other steps taken by the assembly.”

[28] The issue in the present case is whether the exercise by the Speaker of the authority given to him by rule 7(5) of the Rules of Procedure of the Maneaba ni Maungatabu comes within the scope of this internal proceedings privilege. As Lord Cooke explained, this is a privilege accorded by the courts to limit any possible conflict of authority between the courts and the parliament. But it does not mean that the mere fact that an impugned action is taken by parliament or one of its officers gives automatic immunity. Not only must the action be constitutional, it must also be of the kind to which the privilege extends.

[29] We see a clear distinction between the summoning of a parliament and the proceedings of the parliament once it has assembled. One need go no further than the early great cases of Burdett v Abbott (1810)14 East 1, Stockdale v Hansard (1839) 9 Ad & E1 and Bradlaugh v Gossett (1884)12 QBD 271. In the last mentioned, Lord Coleridge at p.275 spoke of the privilege in these terms:

“What is said or done within the walls of parliament cannot be inquired into in a court of law. . . The jurisdiction of the Houses over their own members, their right to impose discipline within their walls is absolute and conclusive.”

[30] Stephen J said (p280)

“It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly.” (The italics are ours.)

[31] A more recent statement is that of Lord Browne-Wilkinson delivering the advice of the Privy Council in Prebble v TVNZ Ltd [1995]1 AC 321, 332 where it was said that the courts

“. . . will not allow any challenge to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges”.

[32] Conversely, the privilege does not attach to what is said or done outside the walls of parliament. The action of the Speaker in this case was in that category. The Maneaba had not met.

[33] A somewhat similar issue was considered by the Supreme Court of Vanuatu in Attorney-General v Willie Jimmy [1996] VUSC 15). That country’s constitution provides that its Parliament “may meet in extraordinary session at the request of the majority of its members, the Speaker or the Prime Minister.” The Speaker had declined a request by a majority of members. Their right to have the session convened was upheld by the Court. In response to a submission that the matter was covered by parliamentary privilege, the trial Judge said:

“The Speaker’s refusal of the Petitioners’ request to summon Parliament in an extraordinary session of Parliament, is an administrative decision within the Chambers of the Hon Speaker. It is not a decision made inside the ‘Four Halls” of the National parliament in session and it infringes the rights of the petitioners, members of Parliament which are enshrined in the Constitution. In that respect, I hold the view that, in this case, the Court can intervene to enforce and/or guarantee the implementation of the rights of the Petitioners by way of declarations. . .”

[34] We adopt similar reasoning in the present case. (An appeal against this decision was dismissed: Attorney-General v Jimmy [1996] VUCA 1.)

[35] Section 76 of the Constitution of Kiribati differs from that of Vanuatu, particularly in that in subs. (1) it provides:

Subject to the provisions of this section, the Maneaba ni Maungatabu may determine the privileges, immunities and powers of the Maneaba and its members.

[36] It is unnecessary to consider the effect of that provision, because the Speaker’s action in this case was not founded on any determination of the Maneaba under this section, but on the authority given to him by s.77 of the Constitution and rule 7 of the Rules of Procedure.

[37] While rules relating to the summoning of Parliament may at first sight seem beyond the scope of s.67 of the Constitution, s.77 plainly recognizes that the Maneaba will or may make rules of that kind. Moreover, the section also makes it abundantly clear that compliance with any such rules is a constitutional obligation on the part of the Speaker. In appointing the time and place of meetings of the Maneaba, the Speaker is required to comply with those rules as well as with the provisions of the Constitution. His decision and his actions are therefore amenable to the jurisdiction of the Court as discussed above.

[38] Given that the Court has jurisdiction, we now turn to the fourth ground of appeal, which challenges the Chief Justice’s conclusion that there was not an emergency such as to justify the Speaker abridging the time for summoning the Maneaba.

[39] As already described, that conclusion was based on the application of the eiusdem generis rule to the meaning of the word “emergency” in rule 67(2). The rule, as formulated by Driedger in Construction of Statutes 2^nd ed. p116, and adopted by Cross in Statutory Interpretation 3^rd ed. p.134 is:

“Where general words are found, following an enumeration of persons or things all susceptible of being regarded as specimens of a single genus or category, but not exhaustive thereof, their construction should be restricted to things of that class or category, unless it is reasonably clear from the context or the general scope and purview of the Act that Parliament intended that they should be given a broader signification.”

[40] Bennion in Statutory Interpretation 3^rd ed. p.954 describes the rule (he calls it a principle) thus:

“The eiusdem generis principle arises from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context. It may be regarded as an instance of ellipsis, or reliance on implication. The principle is presumed to apply unless there is some contrary indication.”

[41] Rather than call it a rule (or a principle), Lord Diplock in Quazi v Quazi [1980] AC 744, 807-808 called it a presumption:

“The presumption then is that the draftsman’s mind was directed only to [the genus indicated by the specific words] and that he did not, by his addition of the word “other” to the list, intend to stray beyond its boundaries, but merely bring within the ambit of the enacting words those species which complete the genus but have been omitted from the preceding list either inadvertently or in the interests of brevity.”

[42] Cross (supra) warns that the rule is no more than a rough guide as to the intention of the writer. Clearly it can be displaced. Moreover, as the foregoing quotations show, it usually arises where the detailed list is followed by the general statement, the latter generally containing a word such as “other”. In each case, the Court must construe the actual words used, and the context in which they are used. It must of course appreciate that “if the general words were intended to have their ordinary meaning, the specific enumeration would be pointless”: Cross at p.136.

[43] Here, the detailed list is not followed by, but begins with, the general words “without limiting the generality of the expression”. No example of the use of that phrase has come to our attention. While heeding Cross’s words just cited, we consider that this phrase must be given meaning, otherwise it would justify being labelled pointless. In our opinion, the definition requires us to apply the ordinary dictionary meaning of the word “emergency”, and to treat the detailed list as illustrative rather than restrictive.

[44] The Oxford English Dictionary, 2^nd ed. 1989, vol.5, gives as the meaning most relevant for present purposes: “A juncture that arises or “turns up”; esp. a state of things unexpectedly arising, and urgently demanding immediate action....Hence sometimes used for: Urgency, pressing need.” The New Shorter Oxford English Dictionary, 1993, vol.1, is in similar vein: “A situation, esp. of danger or conflict, that arises unexpectedly and requires urgent action......Pressing need.”

[45] Whether such a situation exists in Kiribati, and whether he should respond to it by abridging time under rule 7 (5), calls for a value judgment by the Speaker. It is he who is required to make the decision. If he considers that he should abridge time, he must also consider the extent of the abridgment, and related matters, such as the time and place for the Maneaba to meet. His decisions on all these matters will depend to a large measure on his assessment of the nature and magnitude of the emergency.

[46] Given that the Speaker’s decision and his resultant actions are amenable to review by the Court for their constitutionality, by what standard or test is the Court to approach its task? One approach would be a strictly factual one, by which the Court would address the matter de novo and on the evidence before it determine whether there was the requisite emergency. That approach, however, would deny validity to the judgment of the Speaker, and would mean that any doubt or dispute over his decision would have to be decided by the Court, untrammelled by the Speaker’s own assessment of the situation. Yet it must be implicit in the regulatory scheme that the Speaker will have the knowledge and skills, and the political awareness, necessary to make the necessary decisions. And bearing in mind the proper independence of the Speaker (who is elected by the Maneaba from outside its membership: s. 71 (2) of the Constitution, and who has no vote: s. 73 (2) (a)), coupled with the political implications of his decision, and the controls the Maneaba itself has over his actions (s.71 (4)(c)), we do not consider that his assessment should be relegated to insignificance in this way.

[47] The alternative, and in our view the preferable, approach is the one the Courts generally take when reviewing the exercise of a statutory power of decision, which is what is in question here. The Courts will ensure that there was no procedural unfairness, that the decision was not unlawful, and that it was reasonable. We do not understand there to have been any challenge to the procedural fairness of the Speaker’s decision in this case. Nor can we see any basis for arguing that his decision was unlawful, given our conclusion that the eiusdem generis rule has no application. As to the reasonableness of the decision, the leading case is Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, although there have since been numerous refinements and elaborations of the principle established by that decision. It is enough to mention R (Mahmood) v Secretary of State for the Home Department [2000] EWCA Civ 315; [2001] 1 WLR 840, in which Laws LJ , with whose judgment May LJ concurred, said (at p.847):

“On this model the court makes no judgment of its own as to the relative weight to be attached to this or that factor taken into account in the decision-making process; it is concerned only to see that everything relevant and nothing irrelevant has been considered, and that a rational mind has been brought to bear by the [decision maker] in reaching the decision.”

[48] Therefore the issue in the present case comes down to this: was the Speaker’s decision that there was an emergency, in the generally accepted meaning of that word, a reasonable one, and if so, was it reasonable for him to abridge the time for summoning the Maneaba as he did.

[49] On those matters, the second question submitted to the High Court was inaptly worded, based as it was on a factual premise concerning the existence of an emergency. Perhaps for that reason, the parties made no real attempt to put before the High Court evidence which would equip it to offer a considered decision upon the reasonableness of the Speaker’s decision. It is sufficient to say that the very limited evidence which was before the High Court did not disclose grounds for holding that the decision of the Speaker was other than reasonable in the sense we have discussed. For that reason the Chief Justice’s answer to the second question cannot stand.

[50] The result is that the appeal is allowed in part. The answer to the first question remains “Yes”. The answer to the second question is set out in [49].

[51] As agreed by counsel, there will be no order as to costs.

Hardie Boys JA
Tompkins JA
Fisher JA