Iuta v Taitai [2013] KICA 3; Civil Appeal 03.2013 (23 August 2013)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTIONHELD AT BETIO
REPUBLIC OF KIRIBATI
Civil Appeal No. 3 of 2013

BETWEEN

HON TAOMATI IUTA
1ST APPELLANT

KIRATA KOMWENGA
2ND APPELLANT

AND

DR TETAUA TAITAI
RESPONDENT

Before: Paterson JA
Blanchard JA Handley JA

Counsel: Kirata Komwenga for appellants Elsie Karakaua for respondent

Date of Hearing: 19 August 2013
Date of Judgment: 23 August 2013

JUDGMENT OF THE COURT

1. This appeal raises questions relating to the internal procedures of the Parliament of Kiribati, the Maneaba ni Maungatabu, which could not come before a Court in the United Kingdom or in many other Commonwealth countries. It concerns the attempt by a Member of Parliament to have a motion of no confidence debated in the Parliament, and the refusal of the Speaker to allow this to occur.
   
2. Article 68(1) of the Constitution relevantly provides:
   

"Subject to the provisions of this Constitution and of the rules of procedure of the Maneaba ...... any member may ........ propose any motion for debate in ....... the Maneaba, and the same shall be debated and disposed of according to the rules of procedure of the Maneaba".

3. Article 88(1) of the Constitution provides:
   

"Subject to the provisions of this Constitution, if any person alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are being or are likely to be affected by such contravention, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for a declaration and for relief under this Section".

4. Article 68(1) read with art.88(1) give the High Court jurisdiction to determine at least some questions arising under the rules the Parliament has made to govern its procedures which would not otherwise be justiciable.
   
5. On 19 August 2011 Mr Rimeta Beniamina, the then Leader of the Opposition lodged notice of a motion of no confidence in the Government with the Speaker of the Parliament as required by r.37(1) of its Rules of Procedure. On 27 August the Speaker sought clarification of the motion. This was provided on 25 August and the amended motion read:
   

"That this House expresses no confidence in the Government for inter alia, its numerous gross mismanagement of public funds as highlighted by the Auditor General and the Public Accounts Committee on the 2008 audited account, and also for its undermining of Parliamentary authority over public funds".

6. Rule 38(4) of the Rules of Procedure provides:
   

"The Speaker may in his discretion disallow any motion.... which is the same in substance as any question which, during the same session, has been resolved in the affirmative or negative".

7. The Speaker gave reasons for rejecting the notice of motion:
   

"..... I cannot accept the Motion on the basis set out. The 2008 PAC account had been fully debated and other issues were raised when first reading of supplementary on Tuesday 25/8/11 ..... P.C. Please give me your view on this. I would have thought debate on the supplementary appropriation should have taken care of this".

8. On 31 August Mr Beniamina commenced proceedings in the High Court against the Speaker and Parliamentary Counsel seeking, relevantly, declarations that the Speaker's decision to reject the motion was unlawful and that he had exercised his discretion unfairly by not allowing the applicant to bring his motion before the House.
   
9. The Speaker said in his affidavit of 9 September 2011 that "it was clear to me that the 2008 PAC Report had been fully debated in April of this year and other issues were raised during the first reading of Supplementary [Appropriation] Bill on Tuesday the 25th day of August".
   
10. The relevant passages from the Hansard report of the debates and translations were not in evidence and there was no direct evidence to contradict the conclusions of the Speaker supporting his decision that the motion was out of order.
    
11. Parliament sat from 22 August until 2 September 2011 when it was dissolved for a general election. This sitting was not the relevant session for the purposes of r.38(4) because "session" is defined in rule 3(7) as
    

"a period commencing when the Maneaba first meets after a presidential election and ending when the Maneaba has completed a full term of four years after its first meeting following a general election......"

12. Hence the debate on the PAC report which had occurred in April 2011 was in the same session for the purposes of Rule 38(4).
    
13. The Chief Justice held that the Speaker "misapplied Rule 38(4) and in so doing adversely affected the applicant's constitutional right". He said:
    

"..... when one observes the nature of issues raised in the debate on the 2008 PAC Report and that raised in the applicant's motion, they were entirely different. In April the House debated the 2008 PAC Report. A debate and decision (if any) taken on the PAC Report is not the same thing as a debate and a decision taken on a motion of no confidence on the basis of gross mismanagement of public funds and of undermining of Parliamentary authority over public funds which was the applicant's complaint ..... for a motion to be rejected as out of order, the reasons for doing so must be specific. To say that a motion is out of order because of "other issues" raised during a debate ..... is certainly not in keeping with Rule 38(4)".

14. There was no relevant evidence other than the terms of the applicant's notice of motion before the Chief Justice and it was not open to him to find that the issues raised in the motion were entirely different. The question under Rule 38(4) was whether they were "the same in substance". The motion before the House in relation to the 2008 PAC Report may in substance have been or been treated as a motion of no confidence in the Government.
    
15. The Speaker also referred to the debate on the Supplementary Appropriation Bill in August. This sought further supply from the Parliament and the passing of the Bill established that the Government then had the confidence of the House. Rejection of the Bill, and denial of supply would have been a vote of no confidence in the Government.
    
16. For all the Chief Justice knew and this court knows from the evidence, the Opposition opposed the Appropriation Bill relying for this purpose on matters disclosed in the 2008 PAC Report.
    
17. The Chief Justice also held that Rule 38(4) obliged the Speaker to give "specific" reasons. In our opinion, the Speaker's reasons were specific. The applicant was presumably present during the relevant debates in the House. He did not complain in his evidence that he could not understand the Speaker's reasons.
    
18. The Chief Justice gave judgment on 6 August 2012 after a new Parliament had been elected at the end of 2011, finding that the applicant's constitutional rights had been contravened. He granted a declaration to that effect and made an order for costs in favour of the applicant. In doing so he rejected a submission that the question was a "dead issue". The Speaker has appealed to this Court and his grounds of appeal include the "dead issue" point. In our judgment this must be upheld and the appeal allowed.
    
19. The question propounded by the respondent turns on the Speaker's reasons of 26 August 2011, and the sufficiency of the evidence before the Chief Justice to support his finding that the Speaker was in error, both questions of no enduring significance. A new Parliament has been elected, and whatever was said in the last Parliament during the relevant debates in April and August 2011 cannot prevent the respondent moving a motion of no confidence in the present Government based on matters in the 2008 PAC Report, assuming their continuing relevance. Nothing now turns or could turn on the validity of the Speaker's decision of 26 August except costs and that is not enough.
    
20. The Chief Justice decided a number of issues of constitutional importance which were not challenged before us, but for the reasons given the appeal must be allowed. The following orders are made:
    
    1. Appeal allowed.
    2. Decision of the High Court of 6 August 2012 set aside.
    3. In lieu thereof order that the Originating Summons be dismissed with costs.
    4. Respondent to pay appellants' costs of the appeal assessed at $750 plus disbursement to be fixed by the Registrar.
       

Paterson JA

Blanchard JA

Handley JA