Bwataromwa v Attorney-General [2003] KIHC 71 (19 May 2003)

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

BETWEEN:

RAION BWATAROMA, BINATAAKE
TAWAIA ON THEIR OWN BEHALF AS
VOTERS AND REPRESENTING VOTERS
ELECTING AT THE NATIONAL
ELECTION FOR THE MANEABA
NI MAUNGATABU IN NOVEMBER
AND DECEMBER 2002
APPLICANTS

AND:

RAION BWATAROMA, BINATAAKE
TAWAIA ON THEIR OWN BEHALF AS
VOTERS AND REPRESENTING VOTERS
ELECTING AT THE ELECTION OF THE
BERETITENTIIN FEBRUARY 2003
APPLICANTS

AND:

ATTORNEY GENERAL ON BEHALF OF
THE SPEAKER TO THE MANEABA NI
MAUNGATABU
RESPONDENT

ATTORNEY GENERAL ON BEHALF OF
THE CHIEF ELECTORAL
COMMISSIONER
RESPONDENT

THE APPLICANTS IN PERSON
FOR THE RESPONDENTS: THE SOLICITOR GENERAL

DATE OF HEARING: 19 MAY 2003

JUDGMENT

The applicants ask "for a declaration that applicants' constitutional interests were likely to be affected by reasons that Section 78(1)(b) of the Constitution have been contravened and related relief". It is put also in this way:-

For a declaration that Applicants' Constitutional Right of Franchise in having registered as voters and being voted electing Members of the Maneaba on 29 November and 6 December 2002 and electing the Beretitenti in February 2003 had or likely to be affected by reasons that Section 78(1)(b) have been contravened.

There follow in the Notice of Motion six grounds upon which the applicants rely. Finally they pray for the following declarations:-

That the Monetary Bill moved to the Maneaba on 27 March 2003 accompanied by a certificate from the Beretitenti under S.78(1)(b) was not rejected by the requisite majority;

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.

In support Mr Tawaia had sworn an affidavit setting out the facts and elucidating the grounds upon which he and his fellow applicant relied.

On 9 May when the case was first called on I suggested very strongly to Mr Tawaia that he and Mr Bwataroma find a lawyer to represent them. When the case came on for argument last Monday Mr Tawaia told me that they did not have a lawyer. He then handed written submissions to the Solicitor General and to me.

Having read the submissions in court I called upon the Solicitor General. His first argument was that the applicants had no standing under Section 88(1) of the Constitution to bring the application:-

88. (1) if any person alleges that any provision of this Constitution ...... 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.

The Solicitor General argued that the applicants did not have any more interest than anyone else in the events in Parliament on 27 March which led to its dissolution and cesser of office by the Beretitenti. I do not accept that argument. Kiribati is a parliamentary democracy. Every citizen, certainly every elector, has an interest in the working of government, in his or her representation in Parliament by duly elected members. That interest is sufficiently particular to justify the application.

Mr Lambourne canvassed the judgment of the Court of Appeal in Willie Tokataake & Ors v the Attorney General (Civil Appeal No. 1 of 2003) delivered in Auckland on 22 April 2003. I then heard Mr Tawaia in reply.

I decide the application on two grounds.

When I gave judgment in Willie Tokataake's case (HCCC 6/03) I said:-

It is now too late to give an effective and practical remedy. It is all but 12 days since the vote which caused the Speaker to declare Parliament dissolved. Since then life has moved on: a fresh General Election has been called and the electoral process begun: the Council of State has, pursuant to the Constitution, assumed the administration of Government.

The Court of Appeal did no more than mention what I had said. The Court neither agreed nor disagreed. The view I expressed therefore stands. It was too late, even after 12 days, to bring that application. The present application was lodged on 2 May - five weeks after the events: now more than another two weeks have passed. We are over seven weeks away from 27 March. There has been a general election. A new parliament has been elected. If we were now, as I put it in argument to Mr Tawaia, to go back to square one, to the 27 March, there would be confusion and uncertainty in the community, unrest even. It is now far too late to consider giving any remedy arising out of events in Parliament on 27 March.

Even more decisive because it does not depend on my view, is that the question which the applicants agitate has already been determined by the Court of Appeal. Near the beginning of the Court of Appeal judgment:-

The substantive issue is as to the meaning of s.78(1)(b) of the Constitution of Kiribati. 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.

At the end of the Court of Appeal judgment:-

In our view, the plain ordinary meaning of the words is that "member" refers to individuals. 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.

The Court of Appeal upheld the decision of the Speaker that a majority of all the members of the Maneaba on 27 March was 21. The very point which the present applicants' dispute. As Mr Tawaia put it in the beginning of his submission:-

The application is simply seeking from the Court the correct number as the majority of all members of the Maneaba when the total number is 41.

His conclusion near the end:-

It is from the above submissions that we honestly believe that the term "majority of all members of the Maneaba" having the total of 41 for the purpose of section 78(1)(b) in the present case are 22 members.

The argument has already been concluded against the applicant. The point is res judicata.

This court is bound by the decision of the Court of Appeal. The application is dismissed.

Dated the 22nd day of May 2003

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE