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High Court of Kiribati |
IN THE HIGH COURT OF KIRIBATI 2015
CIVIL CASE NO. 63 OF 2015
BETWEEN
TEBURORO TITO
APPLICANT
AND
THE SPEAKER OF THE MANEABA NI MAUNGATABU
RESPONDENT
Before: The Hon Chief Justice Sir John Muria
1 October 2015
Ms BatiteaTekanito for Applicant
Mr George Mackenzie for Respondent
JUDGMENT
Muria, CJ: The applicant, Teburoro Tito, is one of the Members of the Kiribati Maneaba ni Maungatabu. At the last sitting of the House, the applicant sought to introduce two Bills to amend the State Owned Enterprises Act and the other, to amend the Public Finance (Control and Audit) Ordinance. The respondent advised the applicant that the Bills would be allowed for the first reading provided they met the requirement of 25 days under Rule 52 of the Rules of Procedure of the Maneaba ni Maungatabu and that applicant also invoked Rule 53(5).
2. The Bill to amend the Public Finance (Control and Audit) Ordinance was clearly out of time and rejected. The Bill to amend the State Owned Enterprises Act would be allowed provided Rule 53(5) was complied with since the August sitting was the last sitting of the House.
3. The applicant was not happy with the respondent's decision of disallowing the Bills to be put to the House for consideration and brought this action by way of an Originating Summons seeking the following declaration:
(a) There would be a contravention of section 77(1) if sitting of Parliament in November-December 2015 is cancelled;
(b) That the decision of the Respondent to cancel the November-December 2015 sitting of the House of Parliament contravenes section 77(1) of the Constitution and the decision is therefore unlawful in its effects;
(c) That the applicant's right to legislate guaranteed under section 68 of the Constitution was infringed when respondent imposed conditions requiring the applicant to secure an urgent resolution prior to first reading of the Bill to amend the State Owned Enterprises Act;
(d) That an order be issued against the respondent to summon the House in early November 2015 so that the two weeks meeting ends some time before the 24th November.
4. In response to the issues raised by the applicant, the respondent raises two (2) further issues to be also considered by the Court. These are:
(e) Whether the applicant has locus standi to seek the declarations sought;
(f) Whether the Speaker's decision that the August sitting of the House was the last sitting of the House of Parliament is justiciable.
5. I feel in the proper sequence of determining the issues before the Court in this case, it would be ideal to deal with the issues raised by the respondent first. To those I shall now turn.
LOCUS STANDI
6. Mr Mackenzie of Counsel for the respondent relied on section 88(6) to argue that only the Beretitenti, acting in accordance with
the advice of Cabinet, the Attorney-General and the Speaker are entitled to seek a determination of any question as to the interpretation
of the Constitution. Counsel submitted that the applicant is seeking an interpretation of the Constitution and as such he lacks the locus standi to invoke the jurisdiction of the Court under section 88(6) of the Constitution. Reference is made to the case of Dr Harry Tong –v- MatitaTaniera (Speaker) and
Attorney-General (1986) High Court Civil Case No. 17/85.
7. For the purpose of this case, I think it is necessary to refer to the relevant provisions of Section 88 of the Constitution, in particular subsections (1), (2) and (6) of that section which are as follows:
"88. (1) Subject to the provisions of this Constitution, if any person alleges that any provision of this Constitution (other than Chapter II) 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.
(2) The High Court shall have jurisdiction, in any application made by any person under the preceding subsection or in any other proceedings lawfully brought before the Court, to determine whether any provision of this Constitution (other than Chapter II) has been contravened and to make a declaration accordingly:
Provided that the High Court shall not make a declaration in pursuance of the jurisdiction conferred by this subsection unless it is satisfied that the interests of the person by whom the application under the preceding subsection is made or, in the case of other proceedings before the Court, a party to those proceedings, are being or are likely to be affected.
....................
(6) Subject to the provisions of this Constitution, the High Court shall have original jurisdiction to hear and determine any question as to the interpretation of this Constitution:
Provided that the following authorities only are entitled to make application to the High Court under this subsection—
(a) the Beretitenti, acting in accordance with the advice of the Cabinet;
(b) the Attorney-General; and
(c) the Speaker.
8. In Kiribati, the Constitution provides three (3) entry gates to seeking to invoke the jurisdiction of the Court in a constitutional challenge. The first gate can be found in Chapter II of the Constitution, in particular, section 17. That section provides for the right of any person whose rights guaranteed under Chapter II of the Constitution have been contravened or likely to be contravened to apply to the High Court for redress.
9. The second gate is provided for in section 88(1) of the Constitution. This section entitles any person whose interests are being affected or likely to be affected by an alleged contravention of any provision of the Constitution to apply to the High Court for a declaration and relief.
10. Section 88(6) provides for the third gate to invoking the constitutional jurisdiction of the High Court to deal with constitutional disputes or challenges in Kiribati. This section however restricted the right to bring a constitutional action to the Court to the Beretitenti, the Speaker and the Attorney-General.
11. The applicant in the present case clearly does not fit into the sections 17 and 88(6) categories of applicants. The present applicant is alleging breaches of sections 68 and 77(1) of the Constitution. In my view, the applicant is entitled to invoke the jurisdiction of this Court pursuant to section 88(1) of the Constitution.
12. That is not the end of the hurdle which the applicant has to get over before he can invoke the jurisdiction of the Court in a case such as the present one. The applicant would have to show that his interests "are being or are likely to be affected" by the alleged contraventions of sections 68 and 77(1) of the Constitution. See Dr Harry Tong –v- MatitaTaniera (Speaker) and Attorney-General (above).
13. Section 68 of the Constitution is in the following terms:
"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".
And section 77(1) provides as follows:
"77. (1) 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.
(2) The Beretitenti or one-third of the members of the Maneaba may, subject to the provisions of this Constitution and of the rules of procedure of the Maneaba, advise the Speaker to summon the Maneaba at any time".
And Rule 14(1) of the Rules of Procedure of the Maneaba ni Maungatabu is in the following terms:
"There shall be at least three meetings of the Maneaba each year (excluding Special Meetings summoned under Rule 15) and each meeting shall sit for two weeks. Subject to the provisions of the Constitution and Rule 15, the House shall meet during the following months of the year: March – April, August – September and November – December".
14. There can be no doubt that section 68(1) confers on a Member of Parliament in Kiribati the right to participate in the law-making process through the introductions of Bills in the House. The applicant MP is a member of the legislature and a representative of his constituent in the House. If he is precluded, without lawful reasons, from exercising his right to participate in the law-making process by presenting a Bill to the House, not only that his right has been breached but also those whom he represents in the House. As such, in my view, his interests are directly affected by the alleged breach.
15. Again if the Speaker's decision that the August sitting was the last sitting of the House and that there would be no sitting of the House in November was made in breach of section 77(1) of the Constitution and Rule 14(1) of the Rules of Procedure of the Maneaba ni Maungatabu, then that would have an adverse effect on the applicant's entitlement to bring his Bill to amend the State Owned Enterprises Act to Parliament.
16. I do not think that the applicant is a mere busy-body meddling in others' affairs (R -v- IRC Exp. Federation of Self-employed (1980) 2 WLR 579 ("the Federation of Self-employed Case"). In the words of Lord Denning:
"a 'busy body' is one who meddles officiously in other people's affairs. He convinces himself subjectively that there is a cause for his grievance when there is none. He should be refused. But a man who is genuinely concerned can point – objectively, to something that has gone wrong and should be put right. He should be heard".
This liberalized approach to locus standi is, respectfully, to be preferred in Kiribati.
17. It makes good sense to follow the wider grant rather than a restrictive approach to locus standi in Kiribati, especially, as the preamble to the Constitution mandated that
"the will of the people shall ultimately be paramount in the conduct of the Government of Kiribati".
As a Member of Parliament, the applicant belongs to a law-making body which expresses the will of the people through their elected representatives, such as the applicant.
18. A similar position is expressed in the PNG Case of Supreme Court Reference No. 4 of 1980 [1981] PNGLR 265 where the Supreme Court stated:
"As a Member of Parliament he belongs to the governmental body which has been invested with the power of law-making by the Constitution. In relation to the issue in this case, Mr Somare has raised, amongt other things, that the law-making body has not complied with certain provisions of the Constitution in passing the Defence Force (Presence Abroad) Act 1980".
19. The restrictive approach to locus standi as demonstrated in many of the cases decided by the courts in many jurisdictions followed the common law approach. This is reflected in the high water mark case of Gouriet –v- Union of Post Office Workers [1977] UKHL 5; (1977) 3 All ER 70 (the Gouriet's case) where an applicant has to establish a "special interest" in order to be entitled to be heard.
20. The will of the people is expressed through their legislative, executive and judicial arms of the State. The applicant as a member of the legislature, must surely have the locus standi to raise the concern which he has in this case. The applicant has standing in this case.
WHETHER SPEAKER'S DECISION JUSTICIABLE
21. Having decided that the applicant has standing to bring this action, the next question to be considered is whether the Court can enquire into the respondent's decision that the August sitting was the last sitting of the Maneaba ni Maungatabu. That decision was formally made in Parliament during the sine die motion of 21 August 2015.
22. Mr Mackenzie relied on the decision of the Court of Appeal in EteraTeangana –v- Tong [2004] KICA 18 to submit that the Speaker's decision was made within the internal parliamentary proceedings privileges of Parliament and as such the Court cannot enquire into it. The Court adopted the words of Lord Coleridge in Bradlaugh –v- Gossett [1884] UKLawRpKQB 20; (1884) 12 QBD 271 at 275 where it is said:
"What is said or done within the walls of Parliament cannot be inquired into in a court of law ..... the jurisdiction of the Houses over their own members, their right to impose discipline within their walls is absolute and conclusive".
23. This time-honoured statement of the law is repeated in many cases since Bradlaugh –v- Gossett, one of which is Prebble –v- TVNZ Ltd [1995] AC 332 where the Privy Council said that the courts:
".... will not allow any challenge to what is said or done within the walls of Parliament in performance of its legislative functions andprotection of its established privileges".
Both Bradlaugh –v- Gossett and Prebble –v- TVNZ were cited in the Etera Teangana –v- Tong.
24. It should be mentioned that the converse is also true. No parliamentary privilege is attached to what is said or done outside the walls of Parliament. As was pointed out in Attorney-General –v- Willie Jimmy [1996] VUSC 15 (Vanuatu Supreme Court decision) that a decision made in the Speaker's Chambers is not a decision made within the four walls of Parliament. As such the Speaker's decision was not protected by parliamentary privileges.
25. The Supreme Court, in Willie Jimmy, held that the Court can intervene which it did, and further held that the Speaker's decision contravened the petitioner's right to petition an extraordinary session of Parliament.
26. In the present case, there is evidence from both the respondent and applicant to suggest that prior to the sitting of the House on 10 August 2015, the respondent had already decided that the August sitting would be the last sitting of the House and that there would be no sitting of the House in November as normally done for Budget Meeting (see respondent's letter of 30 July 2015, respondent's affidavit sworn to on 17 September 2015 and applicant's affidavit sworn on 11 August 2015 and 23 September 2015 respectively).
27. In his letter dated 30 July 2015 to the applicant, the Speaker reiterated his position on the November sitting of the House. He said:
"I agree with your paragraph 3 of your letter and had tried always to ensure that parliamentary meetings fell within the span of the months stipulated. I am not however agreeable that the mention of the months, in this case November and December means that because there are a few days available in November we should hold a meeting of Parliament in November before the term of Parliament ends on 25th November. In a normal year, I do not see any reason why we should not hold a Parliamentary meeting according to the Rules.
But this is not a normal year. The last meeting of Parliament in the year had always been treated as a Budget Meeting but there will not be any Budget from Government this time because as we all know the present Parliament will be dissolved on November 25th 2015. In the normal life of the Parliament the Budget session is always held in late November to early December or if possible in December because of the need to prepare for the Budget. Now because there will be no Budget can we plan for a meeting in November prior the dissolution of the present Parliament. My answer to this is a cautious No, and this is the reason why I decided to cancel the last Parliamentary Meeting this year.
The Constitution state in Section 79 that there shall be a general election within 3 months of every dissolution of the Maneaba ni Maungatabu. So soon after 25th November, this year the Electoral Commission is empowered to set out a programme for the general election. It is my duty to see that present/current Members of Parliament are offered the opportunity to be on their electorates as long as possible before poling day which is entirely in the hands of the Electoral Commission and considering the many problems that can happen it is not possible to predict that all current Members of Parliament are returned to their Constituencies well before the date of the election if there is another Meeting in November. I am sure all Members from the outer-islands will want to have as much time as possible campaigning before the polling day. However, if most of the Members want to have a Meeting of Parliament in November before the dissolution of Parliament on 25th November they can show this when the President moves a sine die Motion of adjournment at the end of business on the last day of the forthcoming Meeting in August".
28. The Speaker's position is repeated in his affidavit of 17 September 2015 where he deposed to in paragraphs 4, 5 and 6 as follows:
"4. I had decided that there should be no November-December sitting. I formally announced this on 21st of August during Parliament sitting (attached as Annex 1 is Hansard of the announcement and translated version).
5. I decided that there should be no November-December sitting as I know that this is not a normal year as the Parliament stands dissolved on the 25th of November. Rule 14(1) imply a full year (i.e. from January to December).
6. November-December sitting is usually Budget session and there will be no budget to be set this year".
29. There is clearly a decision made by the Speaker administratively prior to the sitting of Parliament on 10 August 2015 that there would be no sitting of the House in November and that the August sitting would be the last sitting of the House. In my view, no parliamentary privilege can attach to that decision. Parliamentary privileges attached only to things said or done within the four walls of the House.
30. The matter does not end there. Both in his letter on 30 July 2015 and in his affidavits of 17 September 2015 and 30 September 2015, the Speaker had advised the applicant and those who petitioned (in a letter dated 24 July 2015 to the Speaker) for a November sitting of the House, that they could raise the matter at the sine die motion for the House to resolve it.
31. The sine die motion was moved by the Beretitenti and debated. The minutes of the meeting as confirmed in the Hansard Report (see Annex 1 to the Speaker's affidavit of 17 September 2015) shows that the Speaker's offer was not taken up. The issue of the November sitting was not raised during the debate on the sine die motion. In fact, only three MPs spoke on the motion including the Beretitenti, the mover of the motion.
32. Two of the three who spoke on the sine die motion were the MP for Beru and MP for North Tarawa, both of whom were signatories to the petition for the summoning of the November sitting of the House. Needless to say, neither the MP for Beru nor the MP for North Tarawa raised the matter of the summoning of the November sitting during the debate of the sine die motion.
33. As the matter of the November sitting of the House was not raised and debated on, there was no indication by the House of one view or another on the matter. The Speaker presumed, properly in my view, that the petitioners, including the applicant, accepted his decision that the August sitting was the last one of the current House. He therefore formally announced his decision that there would not be a November sitting and that the August sitting was the last one for the House.
34. In my view, the respondent's formal announcement of his decision in Parliament on 21 August 2015 that there would not be any sitting of the House in November and that the August sitting was the last one for the House, attracts parliamentary privileges. It was a decision made within the four walls of Parliament and subject to only one qualification, it cannot be questioned in the Courts.
35. The qualification referred to in the previous paragraph is that where breaches of the Constitution occurred, the Courts have a constitutional mandate to scrutinize parliamentary proceedings. This is now a well-established principle of law which can be found expressed in many cases, including Ah Chong –v- Legislative Assembly of Western Samoa [1996] WSCA 2; Speaker –v- Philip [1991] SBCA 1; Teangana –v- Tong [2004] KICA 18; Attorney-General –v- Willie Jimmy [1996] VUSC 15.
36. In the present case, although the evidence suggests that in July, prior to the sitting of the Maneaba ni Maungatabu on 10 August 2015, the Speaker had decided that the August sitting was the last sitting of the House and that there would be no sitting of the House in November, in my view, that decision is of no consequence any longer when the Speaker invited the applicant and those petitioning for the summoning of the November sitting to raise the matter in the House during the sine die motion. In my judgment, the decision of the Speaker that the August sitting was the last sitting of the House and that there would be no sitting of the House was that formally made in Parliament on 21 August 2015 during the sine die motion.
37. The decision of the Speaker is only justiciable if the applicant can show that his rights under section 68 have been contravened by the Speaker's decision in Parliament made on 21 August 2015 that the August sitting was the last sitting and that there would be no November sitting of the House.
38. As I understand it, the argument, as put by Ms Tekanito of Counsel for the applicant, is that the Speaker's decision that there would be no November sitting of the House, contravenes the applicant's right under section 68 of the Constitution. This relates, as Counsel indicated, to the applicant's proposed amendment bills to State Owned Enterprises Act and Public Finance (Control and Audit) Ordinance. Perhaps the Bill to amend the State Owned Enterprises Act only as the Bill to amend the Public Finance (Control and audit) Ordinance was properly rejected as being out of time.
39. I think it is important to consider next section 77(1) of the Constitution before dealing with the applicant's arguments regarding the proposed amendment bills. I said, it is important, because if the Court finds that the Speaker's decision not to hold a November sitting of the House and that the August sitting was the final sitting before the House dissolves on 24 November 2015, is valid, then the arguments surrounding the legal effects of the Speaker's action in respect of the applicant's proposed amendment bills are spent.
40. I have already set out earlier in this judgment the terms of section 77 of the Constitution. The principal argument for the applicant is that the Speaker's decision not to have a November meeting of the House is unconstitutional because the Speaker failed to observe section 77(1) of the Constitution and Rule 14(1) of the Rules of Procedure of the Maneaba ni Maungatabu.
41. I have read sections 77(1), (2) and (3) of the Constitution together with Rule 14(1) of the Rules of Procedure of the Maneaba ni Maungatabu. In my view, those provisions do not remove the discretion on the Speaker to call Parliament to meet "at such place ....... at such time ...... as he may appoint". The Speaker has the discretion as to when to summon Parliament. See Dr Harry Tong –v- MatitaTaniera (Speaker) and Attorney-General (3 April 1986) High Court of Kiribati Civil Case No. 17/85.
42. It must be noted that section 77 is subject to other provisions of the Constitution; so is Rule 14(1) also subject to the provisions of the Constitution. This recognizes the fact that there are other constitutional considerations that the donee of the powers under section 77 and Rule 14(1) must take into account when it comes to exercising the powers under those provisions. Such considerations when taken into account would form the sound basis for the exercise of the discretionary power under the said provisions.
43. The affidavits of the applicant together with the remarks set out in his concluding remarks during the sine die motion, clearly set out the basis or the reasons for the exercise of his discretion not to call Parliament meeting in November this year, 2015. These include the fact that the House dissolves on 24 November 2015 this year pursuant to section 78(2) of the Constitution, a general election must be held within three months after dissolution of the House pursuant to section 79(1) of the Constitution, there is no budget sitting, normally held in the November-December sitting of the House, this year, and according MPs reasonable opportunities to prepare for the election should they wish to put in their candidacies for re-election.
44. The power to call Parliament is vested in the Speaker by virtue of section 77 of the Constitution and I have already held that the Speaker's power to call Parliament is discretionary. It is his decision and it is implied that in coming to this decision, he would take all relevant factors into account.
45. The position in this regard is made clear in Teangana –v- Tong where the Court of Appeal has stated:
"Given that the Speaker's decision and his resultant actions are amenable to review by the Court for their constitutionality, by what standard or test is the Court to approach its task? One approach would be a strictly factual one, by which the Court would address the matter de novo and on the evidence before it determine whether there was the requisite emergency. That approach, however, would deny validity to the judgment of the Speaker, and would mean that any doubt or dispute over his decision would have to be decided by the Court, untrammeled by the Speaker's own assessment of the situation. Yet it must be implicit in the regulatory scheme that the Speaker will have the knowledge and skills, and the political awareness, necessary to make the necessary decisions. And bearing in mind the proper independence of the Speaker (who is elected by the Maneaba from outside its membership:s.71(2) of the Constitution, and who has no vote: s.73(2)(a), coupled with the political implications of his decision, and the controls the Maneaba itself has over his actions (s.71(4)(c)), we do not consider that his assessment should be relegated to insignificance in this way".
46. On the factual circumstances of this case and accepting the basis for the exercise by the Speaker of his power under section 77 of the Constitution, the applicant bears the burden of establishing that the exercise by the Speaker of his power under the section is unlawful, unfair and unreasonable. The Court is not persuaded in this case that the Speaker's decision was other than reasonable and lawful.
SECTION 68 OF THE CONSTITUTION
47. I deal with the issue of whether the applicant's right under section 68 was infringed when the respondent imposed conditions requiring the applicant to secure an urgent resolution prior to the first reading of the proposed amendment of the Bill to amend the State Owned Enterprises Act. The applicant argues that it is contrary to section 68 of the Constitution and Rule 53(5) of the Rules of Procedure of the Maneaba ni Maungatabu to require the applicant to secure an urgent resolution of Parliament before the Bill to amend the State Owned Enterprises Act before its first reading.
48. Since the August sitting was the last sitting of the House, in conformity of the previous practice of the House, the Speaker decided that the applicant needed to secure an urgent resolution of the House before the Bill could be allowed for first reading. This is clearly the requirement in both section 68(3) of the Constitution and Rule 53(5) of the Rules of Procedure of the Maneaba ni Maungatabu.
49. Despite the Speaker's advice, the applicant did not secure the required urgent express resolution of Parliament for the first reading of his Proposed Bill to amend the State Owned Enterprises Act. Perhaps, and it is implicit in Counsel's argument, that the reason for the applicant not to accede to the Speaker's directions was that the Bill could be moved for the first reading in the August sitting and the House to proceed further on the Bill at its November sitting which the Speaker had earlier indicated that there would not be one.
50. In so far as the proposed Bill to amend the Public Finance (Control and Audit) Ordinance is concerned, the Speaker ruled that it was out of order. Nothing else was taken further on that proposed Bill. As to the proposed Bill to amend the State Owned Enterprises Act, the Speaker's direction is as follows:
"Your other Bill which was submitted to the Office on 07 July 2015 in regard to your proposed Bill to amend the State Owned Enterprises Act 2013. This Bill reaches the 25 days Rule on 18th August 2015. Therefore this gives you time to move a Motion in Parliament to invoke Rule 53(5) so that you can present the Bill on Wednesday 19th August for first reading and to have its second reading on the Friday 21st August 2015 the last day of the Meeting if the Members allow it".
51. The applicant, as I have already said, did not adhere to the Speaker's advice. He premised his stand that he should be allowed to move his Bill for first reading and to be proceeded with at "the next following meeting". Unfortunately there was to be no "next following meeting" of the House. Had the applicant taken the prudent advice of the Speaker, I have no doubt his Bill to amend the State Owned Enterprises Act would have been before the House and dealt with.
52. In the circumstances of the present case, the applicant's right under section 68 of the Constitution have not been infringed and I so hold.
CONCLUSION
53. Having considered the arguments from both Counsel most anxiously and in the light of the factual circumstances of this case, I make the following declarations in terms of the questions posed by the respondent and the applicant's Originating Summons:
54. As to costs, I feel that in the circumstances of this case, each party should bear its own costs.
Dated the 21st day of October 2015
SIR JOHN MURIA
Chief Justice
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