Tebau v Uaai [2019] KIHC 121; Civil Case 72 of 2019 (11 November 2019)

IN THE HIGH COURT OF KIRIBATI 2019

HIGH COURT CIVIL CASE 72 OF 2019

[HON IOTEBA TEBAU, MEMBER OF
[PARLIAMENT PLAINTIFF
[
BETWEEN [AND
[
[THE ATTORNEY-GENERAL IN RESPECT OF
[THE HON TEBUAI UAAI, SPEAKER OF THE
[MWANEABA NI MAUNGATABU DEFENDANT

Before: The Hon Chief Justice Sir John Muria

6 November 2019

Mr Banuera Berina for the Plaintiff
Ms Ruria Iteraera for the Defendant

JUDGMENT

Muria, CJ: Following the defendant’s rejection of the plaintiff’s motion of no confidence in the Government on 31 October 2019, the plaintiff filed his Originating Summons on 1 November 2019 seeking the determination of the following questions, namely:

1. Whether or not rule 76 of the Rules of Procedure of the Mwaneaba ni Maungatabu which is a rule entitled Rule Against Immediate Reintroduction of Issues or Matters Already Resolved prevents a Member of the Mwaneaba ni Maungatabu from moving a motion of no confidence in the meeting of the Mwaneaba immediately following the meeting where such motion was resolved in the negative although the substance of the motion already resolved was different from the substance of the motion the Member seeks to introduce.
   
2. Whether the decision of the Speaker in failing or refusing to approve the submission by the Plaintiff of a motion of no confidence on the ground that such motion had already been resolved in the negative in the previous meeting of the Mwaneaba, although the substance of the motion that had already been resolved in the negative in the previous meeting of the Mwaneaba ni Maungatabu was different from the substance of the motion submitted by the Plaintiff, was valid.
   
3. Whether or not the Speaker under the Rules of Procedure of the Mwaneaba ni Maungatabu, is obliged to receive and approve the motion submitted by the Plaintiff for consideration by the Mwaneaba ni Maungatabu during its 13^th meeting of the 11^th Parliament, provided the motion is in order and is not in breach of any other rule or rules provided for in the Rules of Procedure of the Mwaneaba ni Maungatabu.
   

2. In consequent thereof, the plaintiff asks for the following declarations:

1. That the proper interpretation of Rule 76 of the Rules of the Procedure of the Mwaneaba ni Maungatabu does not prevent a member from introducing a motion that deals with an issue or substance that is different from the issue or substance that was resolved in the previous meeting of the Mwaneaba ni Maungatabu.
   
2. That the decision of the Defendant in failing or refusing to approve the motion introduced by the Plaintiff under a purported application of Rule 76 of the Rules of Procedure of the Mwaneaba ni Maungatabu is invalid and of no effect.
   
3. That under the Rules of the Procedure of the Mwaneaba ni Maungatabu the Defendant has an obligation to accept and approve the motion of no confidence which the Plaintiff had submitted to Parliament for consideration provided the motion is in order and is not in breach of any other rules provided for in the Rules of Procedure for the Mwaneaba ni Maungatabu.
   

3. The defendant, having entered appearance to the plaintiff’s Originating Summons, filed a Special Case asking the Court to decide on certain points of law as preliminary matters. Having considered the issues raised in the Special Case, the Court, in Chambers, felt that the said issues could be better raised and to form part of the defendant’s defence to the plaintiff’s case. Both Counsel agreed that the Court should also deal with the legal issues raised in the Special Case as part of the defendant’s case in response to the plaintiff’s case in the Originating Summons. The plaintiff’s Originating Summons and the defendant’s Special Case, are dealt with together.

4. In this regard, I set out also the issues raised by the defendant, in his Special Case. The issues are:

1. Whether the Court has jurisdiction to adjudicate or question the exercise of a power conferred on or vested in the Honourable Speaker under the Privileges, Immunities and Powers of the Maneaba ni Maungatabu Act 1986 as amended and the Constitution of Kiribati which had empowered the members of the Maneaba ni Maungatabu to make rules of procedure for the regulation and orderly conduct of its proceedings?
   
2. Whether or not the Court could proceed to hear the case against the member of the Maneaba ni Maungatabu despite the member’s immunity from attendance of Court proceedings during the Maneaba sitting or within 5 days before or 5 days after the Maneaba’s meeting or sitting as stipulated under section 7 of the Privileges, Immunities and Powers of the Maneaba ni Maungatabu Act 1986?”
   

Brief background

5. The brief background scenario of the case stems from the Government’s decision to switch Diplomatic Relations from Republic of China (Taiwan) to the People’s Republic of China.

6. It is common knowledge that following the Government’s decision to switch diplomatic ties from the Republic of China to the People’s Republic of China, views have been publicly expressed both for and against the switch. On 31 October 2019 the plaintiff, who is the Member of Parliament for Marakei submitted a motion of no confidence in the Government with the Clerk to the Maneaba ni Maungatabu for consideration by the House in the 13^th Meeting of the 11^th Parliament. That meeting of the House was scheduled to commence on 4 November 2019.

7. On the same date 31 October 2019, the plaintiff received a letter from the Clerk to Parliament conveying the Speaker’s response to the plaintiff’s motion of no confidence. In his reply, conveyed by the Clerk, the Speaker did not approve the motion citing Rule 76 of the Rules of Procedure of the Maneaba ni Maungatabu in support of his decision to reject the motion of no confidence filed by the plaintiff.
   
8. Being aggrieved by the decision of the Speaker of the Maneaba ni Maungatabu rejecting his motion of no confidence in the Government, the plaintiff has instituted the present proceedings by way of Originating Summons, seeking the determination and declarations referred to above.
   
9. The plaintiff’s Notice of intention to move a motion of no confidence submitted to Parliament is as follows:
   

“Submission for:

In accordance with Rule ....... of the Rules of Procedure, I hereby give notice that I intend to move the following motion:-

Submitted by: Hon Ioteba Tebau MM, Marakei

Submission in Kiribati: Bwa te Mwaneaba aei, e kaota aki onimakinan te Tautaeka ngkai e a tia n urua ana motinnano ma te bootannaomata ni kaineti ma reitakin Kiribati ma Taiwan n akea moa reitakina ma te bootannaomata.

Translation/Rairana: That this House expresses its non-confidence in the government since it has breached its promise to the people of Kiribati regarding the diplomatic relations between Kiribati and Taiwan without first consulting the people.

Signature of Member: Date: 31/10/2019”

(after agreeing to wording in

Kiribati and English)

10. The letter from the Clerk of Parliament conveying the Speaker’s decision is also set out below:
    

“ Date: October 31, 2019

To: Hon. Ioteba Tebau, MM (Marakei)

Mauri,

Re: No-Confidence Motion

I have received your submission regarding the above mentioned motion and I regret to advise that the Hon. Speaker did not approve the motion as stipulated under Rule 76 of the Rules of Procedure of the Maneaba ni Maungatabu. The Rule states that ...”no bills, motion, amendment, question or any other matter or issue which is the same in substance as one already resolved in the affirmative or negative during one meeting of the Maneaba shall be proposed, introduced or raised again during the meeting of the Maneaba immediately following”.

I hope the above is of assistance.

Ko rabwa

(Signed) Eni Tekanene

Clerk to Parliament”

It was following the receipt of the Clerk’s letter that the plaintiff filed his application on 1 November 2019. The contents of the plaintiff’s motion is not disputed, saved to say that it was rejected by the Speaker pursuant to Rule 76 of the Rules of Procedure of the Maneaba ni Maungatabu.

Rule 76

11. Since Rule 76 of the Rules of Procedure of the Maneaba ni Maungatabu is central on this case, I set it out here before I proceed further. The rule states as follows:
    

“76. RULES AGAINST IMMEDIATE REINTRODUCTION OF ISSUES OR MATTERS ALREADY RESOLVED

Notwithstanding any of these Rules, no Bill, motion, amendment, question or any other matter or issue which is the same in substance as one already resolved in the affirmative or negative during one meeting of the Maneaba shall be proposed, introduced or raised again during the meeting of the Maneaba immediately following”.

12. I will return to the consideration of Rule 76 and the issues related to the construction and application of the Rule, later. For now I feel it is preferable that I deal with the other issues raised in the Special Case filed by the defendant.
    

Issue whether the Speaker’s Decision is justiciable

13. The question posed by the defendant is whether the Court has jurisdiction to adjudicate or question the exercise of a power conferred on or vested in the Speaker under the Rules of Procedure of the Maneaba ni Maungatabu and the Constitution. The answer to that question should be obvious to lawyers practising here in Kiribati, in the Region and in other former British colonies in the Commonwealth which have written Constitutions.
    
14. In Kiribati section 67 of the Constitution authorises Parliament to make rules of procedure to regulate the orderly conduct of its proceedings. The rules, however, are subject to the Constitution. As such any application of the Rules must comply with the Constitution.
    
15. Section 68(1) then confers a right to any member of the Maneaba ni Maungatabu to propose any motion for debate in the Maneaba. Section 68(1) 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.

16. If a member such as the plaintiff is prevented wrongly from exercising his right to move a motion for debate in the House, that would be a breach of section 68(1) of the Constitution. He would therefore be entitled to invoke section 88(1) of the Constitution and apply to the High Court for redress. The High Court would be entitled to review the Speaker’s decision. The case law decisions have been replete with authorities on the point.
    
17. The case law authorities have long held that the Speaker’s decisions on matters of procedure relating to the internal proceedings of Parliament, cannot be enquired into by the Courts unless the Speaker’s decision interferes with constitutional rights. In other words the Courts have no jurisdiction to enquire into the Speaker’s ruling on matters concerning the internal proceedings in Parliament unless a breach of the Constitution occurs by the Speaker’s ruling. The following cases decided by the Courts in Kiribati are authorities for above proposition of law: Teangana –v- Tong [2004] KICA 18; Civil Appeal No. 5 of 2003 (November 2004); Tito –v- The Speaker of the Maneaba ni Maungatabu [2015] KIHC 81; Civil Case 63 of 2015 (21 October 2015); Taitai – Iuta [2012] KIHC 54; Civil Case 119 of 2011 (6 August 2012); Iuta –v- Taitai [2013] KICA 3; Civil Appeal 03 of 2013 (23 August 2013).
    
18. Similarly, Courts in other countries in the Region also dealt with the Court’s power to review the Speaker’s decisions and actions where such decisions and actions were found to be in breach of the Constitution. See Minister of Police
    –v- Moala [1997] TOCA 1; CA 19 of 1996 (29June 1997) and Fotofile –v- Siale [1987] TOPC 2; [1987] SPLR 339, both decisions of the Court of Appeal and Privy Council of Tonga; Speaker –v- Philip [1991] SBCA 1; CAC 5 of 1990 (30 August 1991), a decision of the Court of Appeal of Solomon Islands; Ah Chong –v- Legislative Assembly of Western Samoa [1996] WSCA 2, a decision of the Court of Appeal of Samoa; and Attorney-General –v- Willie Jimmy [1996] VUSC 15, a decision of the Supreme Court of Vanuatu.
    
19. The cases of Stockdale –v- Hansard [1839] EngR 139; (1839) 9 Ad. & E. 1; 112 ER 1112; Bradlaugh –v- Gossett [1884] UKLawRpKQB 20; (1884) 12 QBD 271 and Prebble –v- TVNZ Ltd ]1995] 1 AC 321, all reiterated the salutary principle 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 and protection of its established privileges”.

20. The authorities cited above should now make it perfectly clear that a decision or ruling made by the Speaker, the Assembly or Parliament in internal proceedings within the four walls of Parliament cannot be questioned in the Courts except where breaches of a provision of the Constitution occurred.
    

Privileges of Parliament

21. The next question to consider is whether the decision made by the Speaker on 31 October 2019 and conveyed by the Clerk to Parliament to the plaintiff in the letter dated 31 October 2019 is protected by the Privileges, Immunities and Powers of the Maneaba ni Maungatabu Act 1986 as amended. The 13^th Meeting of the 11^th Parliament (the present Meeting) commenced on 4 November 2019. Presumably to comply with the five clear days’ time requirement under Rule 37(1) of the Rules of Procedure of the Maneaba ni Maungatabu, the plaintiff submitted his Notice of his Motion of no confidence on 31 October 2019.
    
22. The decision taken by the Speaker to reject the plaintiff’s motion was made three days before the Parliament met. It was therefore a decision made not within the four walls of Parliament but rather a decision made administratively in the office of the Speaker, and conveyed to the plaintiff by the Clerk to Parliament by a letter dated 31 October 2019. This is not a decision made by the Speaker in Parliament and within the four walls of Parliament. This is an administrative decision made by the Speaker on 31 October 2019 three days before Parliament commenced its meeting. No parliamentary privileges can attach to protect the decision of the Speaker for rejecting the plaintiff’s motion in this case. If authority is required for this finding, the cases of Teangana –v- Tong (above), Tito –v- The Speaker of the Maneaba ni Maungatabu (above) and Attorney-General –v- Willie Jimmy (above) are in point.
    

Section 6 and 7 of the Privileges, Immunities and Powers of the Maneaba ni Maungatabu Act

23. The next issue raised by the defendant relates to sections 6 and 7 of the Privileges, Immunities and Powers of the Maneaba ni Maungatabu. For ease of reference, I set out the two provisions below:
    

“6. Neither the Speaker nor any officer of the Maneaba shall be subject to the jurisdiction of a court in respect of the exercise of a power conferred on or vested in him by or under this Act”

“7(1) No member shall be required to attend before a court or a tribunal on any day –

(a) on which the Maneaba meets;
(b) on which a committee of which that member is a member meets; or
(c) which is within 5 days before or 5 days after a day referred to in paragraphs (a) or (b) of this section”.

24. The argument as put by Ms Iteraera is that when the Speaker made his decision to reject the plaintiff’s motion, he was exercising his power under the Privileges, Immunities and Powers of the Maneaba ni Maungatabu Act. As such, Counsel added, the Speaker’s action is protected under section 6 of the Act and so the Speaker cannot be subject to the jurisdiction of the Court. This is true if the action taken by the Speaker complied with the Rules of Procedure of the Maneaba ni Maungatabu, in particular, Rule 76. However, in the light of what I have already stated earlier in this judgment that the Speaker’s decision to reject the plaintiff’s motion cannot find any protection under the Parliamentary privileges, the section 6 argument has no basis and must fail.
    
25. With regard to section 7, the question posed by the defendant is whether or not the Court could proceed to hear the case against the member of the Maneaba ni Maungatabu during the sitting of the Maneaba. The suggestion is that section 7 protects a member (which must necessarily include the Speaker) from having to attend Court hearing five days before or after the Maneaba meets or five days before or after the committee of which the member is a member meets.
    
26. The first part of the question posed can be answered very simply by saying that there is absolutely nothing to prevent the Court from hearing a case against a member of Parliament attending a meeting of the House or meeting of the Committee of the House. A member’s attendance to Parliamentary duties cannot prevent the exercise of the Court’s judicial function. The Court’s ability to hear the case the case is one thing, and the member’s attendance at the hearing of his or her case is another matter altogether.
    
27. However, advocates know or expected to know the procedure and would be able to inform the Court that their member client is presently about to attend or is attending Parliament meeting. Advocates who are also officers of the Court, would alert the Court to provisions such as section 7 of the Privileges Immunities and Powers of Maneaba ni Maungatabu Act. The Court, as a matter of comity, will always strive to maintain respect and harmony between the legislative and judicial organs of the State. Undoubtedly the Court will re-schedule the hearing of a case in which a member is a party in such a situation.
    
28. It is not the purport of section 7 of the Privilege, Immunities and Powers of the Maneaba ni Maungatabu to have the Court’s exercise of its judicial power put on halt while a member of the Maneaba ni Maungatabu is attending Parliamentary duties. What section 7 does is to permit a member to enjoy the privilege of carrying out his parliamentary duties without any punitive sanctions from the Court within the period stated in section 7.
    
29. The other aspect of Counsel’s argument is that, but for section 7, the Speaker felt that it was important for him to attend the hearing of the case and to testify because of the importance of the case. Mr Berina, with his usual acumen, pointed out very correctly that cases of this nature where declaratory orders are sought, are generally decided on affidavit evidence and that there is no need for the Speaker to attend. The plaintiff has filed his affidavit in support of his case. The Speaker has filed two affidavits, one in opposition to the plaintiff’s Originating Summons and the other, in support of his application for Special Case. The Court would deal with the case, like any other Originating Summons, on the affidavit evidence already filed before it. There is no need for viva voce evidence. This is particularly so where the facts are not in dispute. The argument based on section 7 is of little or no consequence at all in the present case.
    
30. I need only make mention of another matter contained in the affidavit of the Speaker filed on 6 November 2019. In his affidavit the Speaker referred to a notice of motion of no confidence in the Government submitted by the MP for TabSouth and Leader of the Opposition on 28 October 2019. That motion was rejected on 29 October 2019. On 1 November 2019 the MP for TabSouth and Leader of the Opposition resubmitted his motion of no confidence. The Speaker rejected that motion on the ground that the plaintiff’s application on the interpretation of Rule 76 was pending before the Court. The motion filed by the MP for TabSouth and Leader of the Opposition and rejected by the Speaker is of no concern to the Court since it is not a matter in dispute before the Court. This case is concerned only with the dispute arising out of the motion of no confidence filed by MP for Marakei and which was rejected by the Speaker on 31 October 2019.
    

Interpretation of Rule 76

31. Rule 76 expressly prohibits “re-introduction of issues or matters already resolved”. The focus is on the “issues” or “matters” raised in the motion, Bill, amendment or question. Thus a motion of no confidence cannot raise the same matter or issue that was raised, debated and resolved (negatively or affirmatively) at the previous meeting immediately before the present meeting of the Maneaba ni Maungatabu.
    
32. It is therefore necessary that we examine the matter or issue which was raised in the motion at the last meeting and to ascertain if it was the same in substance to that raised in the present motion. This is a question of fact which needs to be ascertained by comparing the issue raised at the previous meeting and the issue now raised in the plaintiff’s motion of no confidence.
    
33. The plaintiff filed his additional evidence in which he corrected his previous affidavit as to the substance of the motion of no confidence introduced, debated and voted on at the last meeting immediately before the present meeting of Parliament. Annexed to the plaintiff’s additional affidavit is a copy of the Hansard Report for the period 2-6 September 2019. The motion of no confidence moved, debated and voted on by members of the Maneaba ni Maungatabu on 4 September 2019 was (in English translation):
    

“No confidence in the Government due to the construction of a New Stadium”.

34. The said motion was recorded in the Hansard Report at page 265. The motion was debated, voted on and was defeated by a vote of 13 in favour of the motion and 25 against. The record on the votes taken can be found at page 351 of the Hansard Report.
    
35. The issue or the matter now contained in the plaintiff’s motion of no confidence is (English translation):
    

“That this House expresses its no confidence in government since it has breached its promise to the people of Kiribati regarding the diplomatic relations between Kiribati and Taiwan without first consulting people”.

36. In the course of the presentation of arguments in Court, very little had been addressed by Counsel for the defendant on contents of the motion of no confidence raised in the previous Meeting on 4 September 2019 and nature of the contents of the plaintiff’s motion in the present case. The focus on Counsel’s argument was on the protection enjoyed by the Speaker and Members of the Maneaba ni Maungatabu under the Privileges, Immunities and Powers of the Maneaba ni Maungatabu Act. Counsel, however, intimated that both the previous and present motions were the same in substance, in that they were both about no confidence in the Government. In my view that argument cannot be correct because Rule 76 speaks of matter or issue which must be the same in substance as that raised in the motion previously. The consequences of accepting the contention of the defendant would be far reaching, which include precluding a Member from ever exercising his or her right again under section 68(1) of the Constitution, having brought one motion previously and dealt with by the Maneaba ni Maungatabu, however justified it may be.

37. There is abundant evidence before the Court as to the substance of the issues or matter contained in the previous motion of no confidence and the plaintiff’s present motion of no confidence. It is the nature of the question or matter raised by the motion that is of vital importance, not the type of motion: See Philip –v- Speaker of National Parliament [1990] SBHC 118; [1990] SILR 227 (23 November 1990).
    
38. By any stretch of imagination, the issue, the matter or the contents of the previous motion of no confidence and the plaintiff’s present motion of no confidence cannot be said to be the same in substance. The issue or subject matter of the motion of no confidence on 4 September 2019 was over the construction of a New Stadium, whereas the subject matter of the plaintiff’s motion of no confidence was over a breach by the Government of its promise to the people of Kiribati regarding the diplomatic relations between Kiribati and Taiwan without first consulting people”. Quite plainly the subject matters or the nature of the issues in the two motions were not the same in substance. The conclusion made by the Speaker on 31 October 2019 that the substance of the two motions of no confidence were the same is clearly erroneous and insupportable.
    
39. The missing link in Iuta –v- Taitai (above) is now filled in the present case by the production of a copy of the Hansard Report for the Meeting of the Maneaba ni Maungatabu from 4 – 6 September 2019. The Report contains evidence which directly contradicts the conclusion of the Speaker that the plaintiff’s motion was the same in substance as that of the previous motion. Despite the fact that in Iuta v Taitai that case the Rule in dispute is Rule 38(4), the basis for the Speaker to exercise his discretions to disallow any motion is the same, namely that it is the “same in substance” as the previous one. The only difference is that Rule 38(4) applies to questions raised during same session and Rule 76 applies to questions or matters raised at the meeting immediately before the present meeting. The distinction does not affect the basis for the Speaker to exercise his discretion to reject motions.
    

Conclusion

40. In the light of the discussion and reasons given in this judgment, the plaintiff’s application must succeed. The questions posed by the plaintiff in his Originating Summons must be answered as follows:
    

1: Yes. The substance of the motion previously moved and resolved on 4 September 2019 was different from the substance of the motion which the plaintiff now seeks to introduce.

2: The decision by the Speaker to reject the plaintiff’s motion submitted on 31 October 2019 was invalid because the substance of the plaintiff’s motion was not the same as that of the previous motion.

3: The Speaker was obliged to receive and accept the plaintiff’s motion for consideration by the Maneaba ni Maungatabu during its 13^th Meeting of the 11^th Parliament provided the motion is in order and not in breach of any other rules provided for under the Rules of Procedure of the Maneaba ni Maungatabu.

41. Consequently the following declarations are made:
    
    1. I declare that on the proper interpretation of Rule 76 of the Rules of Procedure of the Maneaba ni Maungatabu the Speaker is obliged to accept the plaintiff’s motion and to allow him to introduce the motion for debate during the present meeting of Parliament since the substance of the plaintiff’s motion is not the same as that of the previous motion.
       
    2. I declare that the decision of the Speaker to reject the plaintiff’s motion was invalid and of no effect.
       
    3. I declare that the defendant is obliged to accept and approve the plaintiff’s motion of no confidence for introduction and consideration by the Maneaba ni Maungatabu provided the motion is in order and is not in breach of any other rules provided for in the Rules of Procedure of the Maneaba ni Maungatabu.
       
42. Determinations and Orders made in Originating Summons generally only determine the rights and obligations of the parties. They are declaratory relief. They clarify the legal relationship between the parties. They are not executory: The Attorney-General et al –v- Jeffrey Prosser et al (8 March 2007) Court of Appeal of Belize, Civil Appeal No. 7 of 2006; Fort Street Tourism Village Ltd –v-
    Attorney-General (28 April 2008) Court of Appeal of Belize, Civil Appeal No. 4 of 2008, Nkhata –v- Opportunity Bank of Malawi [2017] MWHC 126. See also
    H.W.R Wade in “Administrative Law” 5 Edition page 523. These are also the effects of the determinations and declaratory orders made in the present case.
    

Dated the 11^th day of November 2019

SIR JOHN MURIA
Chief Justice