Republic v Maitinnara [2010] KIHC 54; Criminal Case 02 of 2010 (5 March 2010)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION

High Court Criminal Case 2 of 2010

HELD AT BETIO
REPUBLIC OF KIRIBATI

THE REPUBLIC

V

BOTIKA MAITINNARA

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Banuera Berina

Date of Hearing: 3 March 2010

DECISION ON PRELIMINARY POINT

The accused, Nei Botika Maitinnara, a private lawyer practicing in Kiribati, has been charged with seven counts of Extortion. An offence by S.86 of the Penal Code:-

86. Any person who, being employed in the public service, takes or accepts from any person for the performance of his duty as such officer, any reward beyond his proper pay and emoluments, or any promise of such reward, shall be guilty of a misdemeanor, and shall be liable to imprisonment for 3 years.

The accused pleaded not guilty to all counts. Apart from persons and dates the counts are identical. As an example, the particulars of count 1:-

On the 7th February 2007, Botika Maitinnara whilst being employed as a lawyer at the office of the People’s Lawyer in Betio on South Tarawa, accepted from Raurenti Ioo and others for the performance of her duty as such officer reward of $300 beyond her proper pay and emoluments.

After receiving Ms Beiatau’s Opening Statement and before evidence called I queried whether "a lawyer at the Office of the People’s Lawyer" is "employed in the public service".

Proof that the accused, as a People’s Lawyer, was employed in the public service is an essential element in proof of the offence. That is a question of law upon which I heard argument immediately.

My first reaction on reading the papers had been that a People’s Lawyer is not employed in the public service. The Office of the People’s Lawyer is under the control of the Judiciary, answerable to the Chief Justice through the Chief Registrar. [I emphasize that in practice the control is administrative only: the People’s Lawyers are entirely independent professionally.] People’s Lawyers are in no sense answerable to the Government as is someone employed in the public service.

I put this to counsel and adjourned for some time to allow Ms Beiatau and Mr Berina to consider.

Ms Beiatau referred first to the definition in s.4 of the Penal Code of "person employed in the public service":-

"person employed in the public service" means any person holding any of the following offices or performing the duty thereof, whether as a deputy or otherwise, namely –

(i) Any person holding a public officer (sic) within the meaning of section 132(1) of the Constitution, including a person holding an office referred to in section 133(1) of the Constitution. .....

Ms Beiatau then went on to s.132 of the Constitution. Subsection (1) contains definitions:-

"public employee" means a person holding or acting in any public office;

"public office" means an office of emolument in the public service;

"public service" means the service of the Government in a civil capacity.

Ms Beiatau argued that a People’s Lawyer falls within these definitions. I cannot accept the argument: "public office" assumes employment in the public service and that means the service of the Government in a civil capacity. In no sense is a People’s Lawyer in the service of the Government. The Judiciary of which the People’s Lawyers Office is a part is entirely independent of the Executive, the Government, both in theory and in my experience, in practice as well.

Ms Beiatau referred to s.96 of the Constitution, especially subsection (2):-

(2) Any appointment made under this section may, at any time, be determined by the Chief Justice, acting after consultation with the Public Service Commission.

Ms Beiatau’s argument misunderstood the use of the word "determined" which, in this context, means "brought to an end": it is nothing to do with appointment. The Public Service Commission takes no part in the appointment of People’s Lawyers although notified of an appointment.

I pointed Ms Beiatau to s.99 of the Constitution:

(1) Subject to the provisions of this Constitution power to make appointments to public offices, and to remove and to exercise disciplinary control over persons holding or acting in such offices, is vested in the Beretitenti, acting in accordance with the advice of the Public Service Commission.

(2) The Beretitenti may delegate to the Public Service Commission his power to make appointments to certain public offices or certain classes of public office .....

Her rejoinder was that the phrase "subject to provisions of the Constitution" makes the section subject to section 132 which prevails over it. Yet it does shew how as a rule appointments are made. Neither the Beretitenti nor the Public Service Commission takes any part in the appointment of People’s Lawyers.

Ms Beiatau summed up her argument (as I noted it):-

Although not appointed by the PSC nevertheless she is a public servant because of definitions in the Penal Code and ss 132/133 of the Constitution. S99, 96(2).

She is a civil servant – she is bound by NCS and is treated as such for a number of purposes – paid by the Government.

Mr Berina complained that the prosecution has not disclosed any documents upon which it proposed to rely to prove his client’s appointment as a People’s Lawyer and proof of appointment is an essential element in the proof of the offence. That may be a point for another day.

Conclusion: the accused, as a People’s Lawyer, was not "employed in the public service" and so could not be found guilty of an offence under s.86 of the Penal Code.

I suggested to counsel that any complaint such as that alleged in Ms Beiatau’s Opening Statement may best be dealt with using the provisions of Part III of the Kiribati Law Society Act.

For completeness I append to these Reasons a copy of the standard form of letter of appointment of a People’s Lawyer.

Dated the 5th day of March 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice