Application for an Interpretation of Section 65 of the Constitution, In re [2015] KIHC 59; Civil Case 19 of 2015 (24 July 2015)

IN THE HIGH COURT OF KIRIBATI 2015

CIVIL CASE NO. 19 OF 2015

IN THE MATTER OF SECTION 88(6)(c) OF THE CONSTITUTION

AND

IN THE MATTER OF AN APPLICATION FOR AN INTERPRETATION OF SECTION 65 OF THE CONSTITUTION

Before: The Hon Chief Justice Sir John Muria

2 June 2015

Mr George Mackenzie for Speaker
Ms Batitea Tekanitofor Mr Tebuai Uaai
Mr Monoo Mweretaka for Attorney General

JUDGMENT

Muria, CJ: The Hon Speaker of Parliament has referred the following question to this Court pursuant to section 88(6) of the Constitution:

"Whether a Bill amending the Salaries and Allowances of the Members of the Maneaba ni Maungatabu and Salaries Tribunal Act can be discussed in Parliament without a prior review by the Maneaba Members' Salaries and Allowance Tribunal".

The question arose following a Bill moved by the Hon Member for Tabiteuea South, Tebuai Uaai MP, seeking to amend the Salaries and Allowances of the Members of the Maneaba ni Maungatabu and Salaries Tribunal Act 2002 (revised, as amended).

BRIEF BACKGROUND

In September 2012 the Salaries and Allowances of the Members of the Maneaba ni Maungatabu and Salaries Tribunal met to review and recommend amendments to the salaries and allowances of Members of the Maneaba ni Maungatabu. Followin'g the review and recommendation of changes to salaries of the Members of the House, in accordance with section 65 of the Constitution, a Bill incorporating the changes recommended by the Tribunal was presented to Parliament in December 2013. The Bill, Salaries and Allowances of the Members of the Maneaba ni Maungatabu and Salaries Tribunal (Amendment) Bill 2013, sponsored by the Government was debated and passed into law.

In the August 2014 sitting of Parliament, Hon Member of Parliament for TabSouth Tebuai Uaai MP, brought a Bill to Parliament seeking to amend the Salaries and Allowances of the Members of the Maneaba ni Maungatabu and Salaries Act (Revised Edition 2013). The Honourable Speaker of the House accepted the Bill to be included in the Business of the House for its August sitting.

The Government, having sought legal advice, objected to the introduction of the Bill in the House for debate. The Hon Speaker then decided not to allow the Bill to be introduced in the House as it would contravene Rule 59 of the Rules of Procedure of the Maneaba and section 68(2) of the Constitution. The Hon MP for TabSouth then presented a revised version of the Bill to amend the 2013 Act by removing items from the Bill which would likely contravene Rule 59 and section 68(2) as pointed out by the Hon Speaker of Parliament. Following the submission of the revised Bill by the Hon MP for TabSouth, that the Applicant, Hon Speaker of Parliament, may now seek the Court's determination on the following question of law:

"Whether a Bill amending the Salaries and Allowances of the Members of the Maneaba ni Maungatabu and Salaries Tribunal Act can be discussed in Parliament without a prior review by the Maneaba Members' Salaries and Allowance Tribunal".

SUBMISSIONS

When asked by the Court of the applicant's view, Counsel for the applicant informed the Court that the applicant had no decisive view one way or the other on the question posed. The applicant simply seeks the Court's interpretation of the question asked.

Ms Tekanito of Counsel for the Hon MP for TabSouth and proposed mover of the Bill, submitted that the Bill was validly submitted to Parliament for debate and need not to be preceded by a review and recommendations of the Tribunal established under section 65 of the Constitution. Counsel further submitted that the Member's right to participate in the law-making process under section 68 of the Constitution cannot be curtailed by section 65. Thus, submitted Counsel, that the proposed Bill to amend the Salaries and Allowances of the Members of the Maneaba ni Maungatabu and Salaries Tribunal Act (Revised Edition 2013) would not be in breach of section 65 of the Constitution if it was moved and debated in Parliament without prior review and recommendations by the Tribunal.

Mr Mweretaka of Counsel representing the Hon Attorney General submitted in support of the stand taken by the Government that to have the Bill presented and debated in Parliament without prior review and recommendation of the Tribunal would be in breach of section 65 of the Constitution and therefore unconstitutional.

DETERMINATION

As sections 65 and 68 of the Constitution are very relevant to the present case I set them out here. Section 65 provides as follows:

"65. (1) There shall be a standing independent Maneaba Members' Salaries Tribunal to review the salaries and allowances of members of the Maneaba ni Maungatabu, including the salaries and allowances of the Beretitenti, and the Kauoman-ni-Beretitenti and the other Ministers.

(2) The Tribunal shall consist of not less than 3 nor more than 5 suitably qualified persons who shall be appointed, and may be removed, by the Chairman of the Public Service Commission acting after consultation with the Speaker.

(3) Having conducted a review in accordance with this section, the Tribunal shall make recommendations to the Maneaba".

and Section 68 is as follows:

"68. (1) Subject to the provisions of this Constitution and of the rules of procedure of the Maneaba ni Maungatabu, any member may introduce any Bill or propose any motion for debate in, or may present any petition to, the Maneaba, and the same shall be debated and disposed of according to the rules of procedure of the Maneaba.

(2) Except on the recommendation of the Cabinet signified by a Minister, the Maneaba shall not—

(a) proceed upon any Bill (including any amendment to a Bill) which, in the opinion of the person presiding in the Maneaba, makes provision for imposing or increasing any tax, for imposing or increasing any charge on the Consolidated Fund or other funds of Kiribati, or for altering any such charge otherwise than by reducing it, or for compounding or reducing any debt due to the Government; or proceed upon any motion (including any amendment to a motion) the effect of which in the opinion of the person presiding in the Maneaba is that provision would be made for any of the purposes aforesaid.

(3) The Maneaba shall not proceed on a Bill after its first reading in the Maneaba until the next following meeting of the Maneaba unless—

(a) the Bill has been certified as urgent by the Beretitenti; or

(b) the Maneaba expressly resolves, by a majority of all the members of the Maneaba, to proceed with consideration of the Bill".

The argument proffered by the Hon MP for TabSouth, mover of the Bill, is that section 65 cannot override the right of a Member of the House to perform his law-making function as provided for in section 68 of the Constitution. I think there is force in that argument because section 65 does nothing more than to create the Maneaba Members' Salaries Tribunal, clothe it with the function of reviewing the salaries and allowances of the members of the Maneaba ni Maungatabu, and make recommendations to the Maneaba.

In this case, the Hon Member exercised his right to introduce a Bill to amend the law earlier passed by the House regarding the salaries and allowances of the members of the Maneaba ni Maungatabu. That process was done in accordance with the Rules of Procedure of the Maneaba ni Maungatabu. The work of the Tribunal under section 65 had long been done, concluded and incapable of subjecting the law-making process under section 68 to it.

The argument for the Attorney General is premised on the words "subject to the other provisions of the Constitution" which is said to make section 68 subject to section 65. In my view, only if there is a conflict between the two provisions, then the argument put forward on behalf of the Attorney General can have force. This is because to have section 68 'subject to' section 65, as argued for by Mr Mweretaka of Counsel for the Attorney General, means that section 68 would have to yield to section 65 if there is a conflict between the two provisions. In my view, the operation of section is a one-off stand-alone process. Once the Tribunal performs its functions under that section, that is the end of its purpose until another salary and allowance review is initiated. There is, therefore, nothing in section 65 which section 68 can yield to. As such section 68 cannot be subject to section 65 of the Constitution.

Further, to accept the Attorney General's argument, would mean that each time a Member of the House seeks to introduce a Bill to amend the law on salaries and allowances of the Members of the House, that Member would have to wait until the Tribunal is appointed and carry out its function of reviewing the salaries and allowances and make recommendation to the Maneaba, and only then the Member can introduce the Bill to be debated in the House. I do not think section 65 is intended to have such a far-fetch effect. To do so would be to subject the law-making power of Parliament to an administrative action by the Tribunal at the behest of the executive arm of the State. That would be contrary to all principles of the law-making power of Parliament.

Also, to all intents and purposes, section 68 can only and properly be subject to other constitutional provisions on Parliament's law-making process and Rules of Procedure of the Maneaba ni Maungatabu. Section 65 has no part to play in the application of section 68 of the Constitution.

In the absence of a clear indication that section 68 is subject to section 65, I am not prepared to accord section 65 an interpretation urged upon the Court by Counsel for the Attorney General. It has also been said that one must interpret the provision of the Constitution in such a way as not to whittle down any of the rights granted by such provisions unless very clear and unambiguous words compel that to be done: Unity Dow –v- Attorney General of Botswana [1992] LRC 623.

I do not think that it is too difficult to imagine that those who objected to the Bill can master all the necessary support on the floor of Parliament to defeat the Bill, but at least the mover of the Bill ought to be allowed to exercise his right in the law-making process under section 68 of the Constitution which right cannot be curtailed by the operation of section 65 of the Constitution.

In the present case, the Bill to amend the Salaries and Allowances of the Members of the Maneaba ni Maungatabu and Salaries Tribunal Act (Revised Edition 2013) was proposed by the Hon MP for TabSouth and accepted by the Speaker to be included in the agenda for the Maneaba sitting. Having received objection from the Government side of the House, the Hon Speaker refused to have the Bill introduced in the House. He seeks a determination from this Court instead. That this Court has now done.

In my judgment, the answer to the question posed at the beginning of this judgment must be in the affirmative, that is, a Bill to amend the Salaries and Allowances of the Members of the Maneaba ni Maungatabu and Salaries Tribunal Act can be moved and debated in Parliament without prior review by the Maneaba Members' Salaries and Allowances Tribunal.

Ruled accordingly.

Dated the 24thday of July 2015

SIR JOHN MURIA
Chief Justice