In re the Constitution, Application by Te Beretitenti [2003] KIHC 91; Civil Case 54 of 2003 (29 July 2003)

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

HIGH COURT CIVIL CASE 54 OF 2003

IN THE MATTER OF S.88(6)(a} OF THE CONSTITUTION

AND

IN THE MATTER OF AN APPLICATION FOR AN INTERPRETATION OF
S.77(1) OF THE CONSTITUTION

HIS EXCELLENCY ANOTE TONG, BERETITENTI,
ACTING IN ACCORDANCE WITH THE ADVICE OF THE CABINET
Applicant

For HE Te Beretitenti: Mr David Lambourne, Solicitor General
For the Hon Speaker: Mr Kirata Komwenga

DATE OF HEARING: 28 JULY 2003

JUDGMENT

Pursuant to section 88(a) of the Constitution the High Court has jurisdiction "to hear and determine any question as to the interpretation of the Constitution". An application to the Court for such determination may be made only by "the Beretitenti acting in accordance with the advice of Cabinetlf or by the Attorney General or by the Speaker.

In accordance with Section 88(6) His Excellency Anote Tong, Beretitenti, applied on 22nd July for a 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?
   

The application is supported by His Excellency's affidavit.

The application arises out of the decision of the Hon the Speaker to call together Parliament on 5th August. The Speaker gave notice on 18th July appointing this date.

The Government has demurred, not wanting Parliament to meet as early as 5th August.

Section 77(1) of the Constitution:

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.

This section obliges the Speaker to observe both the provisions of the Constitution and of the Rules of Procedure in calling together Parliament: if he does not observe them he is acting unconstitutionally.

Rule 7 of the Rules of Procedure of the Maneaba ni Maungatabu has the heading "Commencement and Conclusion of Meeting":

7(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.

Rule 67 "Interpretation"

(1) In calculating a period of a day or days named in this Rules no accounts shall be taken of Saturday, Sunday or Public Holiday.

It will be seen that the Notice of 18th July does not give members "at least 21 clear days" notice of the meeting. Even if Saturdays and Sundays and Public Holidays were counted, still 21 days would not have elapsed between 18th July and 5th August. Not counting weekends and the public holiday on Monday 4th August brings the notice down to 10 days.

The Hon the Speaker is aware that less than the required length of notice is being given but he has justified it believing an emergency exists in Kiribati requiring Parliament to meet as soon as possible.

Unfortunately the Speaker is out of the country.

Mr Kirata Komwenga appearing for him tendered, the Solicitor General not objecting, the faxed copy of a memorandum the Speaker has written from Manila. The first part of the memorandum:-

Arising from the sudden dissolution of Parliament early this year 2003, with the unpassed budget and supplementary, there had been numerous public services which have been affected, cut or have been maintained on a very abnormal, very strict and limited government expenditure, in such a way that resulted in a non-normal functioning of nearly all Government institution which supposed to deliver normal public services to the people of Kiribati, thus resulted in what I regard as "urgency" which made me to call the sitting of Parliament early, and to subdue Rule 7(3).

I'm truly convinced and believe there is "urgency" for the very fact and reasons that the whole of Kiribati is not functionina in a "normal manner", and more so, after the sudden dissolution of Parliament, six (6) months ago!

The Speaker goes on to mention a number of problems to justify his view:

Our students in Fiji embarrassed for lack of funds Delays in payment to copra cutters on outer islands Island Councils have not received grants due to them An outcry over the rise in Air Kiribati fares

The Speaker concludes by saying:-

I, as Speaker of Kiribati Parliament wish not to be blamed, having convinced and after sensing the "unnormality" in Kiribati, and seeing the need and reasons for this "urgency"; to delay the sitting of Parliament for political reasonings, or for other reasonings, is my guilt for all my life. It is my duty, as Speaker of Parliament for Kiribati, to open the keys to the doors of Kiribati Parliament for the Parliamentarians.

I truly respect the democratic principles and notions on the "separation of powers".

The memorandum is an amplification of his letter to the Beretitenti of 9th July (Exhibit "A" to the affidavit of the Beretitenti).

Under the Rules of Procedure the Speaker is fettered in his discretion to override Rule 7(3). The definition of "Emergency" in Rule 67:

(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) Acton 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.

I assume the Speaker equates "urgency" with "emergency". Unless he can show the situation in Kiribati amounts to an "emergency" as defined in Rule 7(2) then he has no power to override the requirement of 21 clear days' notice. Neither his letter to the Beretitenti nor his memorandum indicates a situation which fits any of (a), (b) or (c) of the definition of "emergency".

I do not overlook the phrase at the beginning of the definition of "emergency", "without limiting the generality of the expression". That phrase (or similar phrases) has appeared many times in statutes in common law countries and has been construed in the same way. The phrase is not as wide as it may seem to a layman.

The courts have developed what is known as the "ejusdem generis" rule:-

Ejusdem generis: when general matters are referred to in conjunction with a number of specific matters of a particular kind, the general matters are limited to things of the like kind to the specific matters (Pearce, Statutory Interpretation in Australia 3rd Edition).

Pearce is an Australian text book but the rule is universal. The rule means 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.

The closest would be the third but the situation described by the Speaker in his memorandum is not even nearly the same, especially in the light of a letter from the Minister of Finance (exhibit "C" the affidavit of the Beretitenti) assuring the Beretitenti that there is sufficient money to carryon government at least to the end of August.

The Hon the Speaker has not justified giving less than 21 days clear notice.

I answer the questions in the Originating Summons as follows:-

1. Yes.

2. No.

Mr Komwenga conveyed to the Court the Speaker's request that the hearing of this application be delayed until his return from overseas in a few days' time. With regret to him personally, I did not feel able to meet the request. The delay until almost the day when Parliament is being called to meet would be tantamount to accepting his decision that the House should meet next Tuesday. It is late enough as it is.

Dated the 29th day of July 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice