IN THE HIGH COURT OF KIRIBATI
HCCC 23/94
HCCC 40/94

BETWEEN:

THOMAS IARAMAKO TEOIAKI
Appellant

AND:

HON. SPEAKER
ON BEHALF OF MANEABA NI MAUNGATABU
1st Respondent

ATTORNEY GENERAL
ON BEHALF OF THE PSC
2nd Respondent

(BEFORE THE HON F MUHAMMAD C.J.)

Mr B Berina for the Appellant
Mr D Kanono for both Respondents

JUDGMENT

The applicant was employed by Kiribati Provident Fund as an assistant accountant in or around 1980 and as an inspector from 1985 until 17 October 1991 when he was dismissed. He sued, by writ issued on 1 June 1993, Kiribati Provident Fund and the Public Service Commission for wrongful dismissal and claimed damages. A Statement of Claim was filed on 20 April 1993.

Mr Evans, a Senior State Advocate filed two separate Statements of Defence, one for each of the two defendants. Neither of these statements were signed or dated. However no objection was taken by Mr Berina on this point. However among other things Mr Evans claimed in his defence, inter alia, "that pursuant to section 6 of the Public Service Commission (Functions) Act 1983, it (the defendant) is not bound to follow the National Conditions of Service and that in the exercise of its functions it is not bound to permit legal or other representations on behalf of any person and it has a discretion in that regard and any decision in exercise of such discretion is non-justiciable".

It is this defence that bars the applicant from any redress in Court that the applicant is complaining about. On his behalf Mr Berina says that section 6 of the aforesaid Public Service Act is unconstitutional and the Parliament acted ultra vires section 99(3) of the Constitution, in passing it. Section 6 of the Public Service Commission (Functions) Act 1983 is as follows:-

"Subject to section 137 of the Constitution,

(1) the Public Service Commission in exercise of its functions shall not be bound to permit legal or other representation on behalf of, any person and shall have a discretion in that regard and any decision in exercise of such discretion shall be non justiciable.

(2) All advices and decisions of the Public Service Commission shall be non justiciable."

This gives the Commission enormous powers and the only control on the exercise of such powers is section 137 of the Constitution which reads as follows: -

"137. No provision of this Constitution that any person or authority shall not be subject to the direction or control of any other , person or authority in the exercise of any functions under this Constitution shall be construed as precluding a court of law from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or any other law or should not perform those functions".

Maneaba ni Maungatabu (the Parliament) has the power to pass legislation, under section 99(3) of the Constitution, to prescribe the functions of the Public Service Commission. Mr Berina submits that such provision is merely to prescribe functions permissible under the Constitution. In passing the 1983 Act the Parliament has exceeded the authority given to it by section 99(3) of that Constitution in that it has taken away from the individual his fundamental rights of the protection of law.

I might add it deprives a person of his right to natural justice and deprives him of access to Court. Section 137 itself preserves the jurisdiction of the Courts. Section 6 of the 1983 Act is subject to section 137 of the Constitution. That is a contradiction, on one hand it takes the jurisdiction away from the Courts by making it non justiciable to challenge, any proceedings which may be held in private without the presence of the parties or their representatives and the result of such proceedings, and on the other hand it is subject to section 137, aforesaid, under which such jurisdiction of the Courts is preserved.

Mr Kanono has said a great deal against the application. I have tried very hard to understand him in court and have had his submissions transcribed. It appears that he is objecting to the jurisdiction of this Court to deal with this matter under section 88 of the Constitution. I am satisfied that the interests of the applicant have been affected and he is entitled to seek interpretation of the Constitution. I attach the transcript of Mr Kanono's submissions to this judgment with the hope that the Attorney General would find time to read it.

It is an important matter upon which submissions have been very brief and I myself have few working hours left in which to finish a great deal of work and I hope the matter will be taken up by the aggrieved party to the Court of Appeal where it can be more fully dealt with.

However I grant the following declarations:-

(1) That Section 6 of the Public Service Commission Act 1983 is invalid;

(2) That Maneaba ni Maungatabu acted ultra vires Section 99(3) of the Constitution in passing the aforesaid section 6 of 1983 Act.

The respondent to pay the costs of the applicant.

THE HON F MAHAMMAD
CHIEF JUSTICE
(03/02/95)