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High Court of Kiribati |
IN THE HIGH COURT OF KIRIBATI 2019
MISCELLANEOUS APPLICATION NO. 169 OF 2019
(ARISING OUT OF HIGH COURT CIVIL CASE 78 OF 2019)
[HON TITABU TABANE, LEADER OF THE
[OPPOSITION AND OTHERS 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
20 November 2019
Mr Banuera Berina for the Plaintiff
Ms Eveata Maata for the Defendant
JUDGMENT
Muria, CJ: This Court is again being asked by basically the same parties to decide on issues which arise following and in connection with the decision of the Court in Civil Case 72/19. The orders sought in the present case are both declaratory and executory.
Brief background
2. By way of brief background, let me recap on what took place in Civil Case 72/19. On 11 November 2019, this Court in Civil Case
72/19 found and declared that the substance of the motion of no confidence in the Government submitted by the Member of Parliament
for Marakei,
Ioteba Tebau MP was not the same as the motion of no confidence submitted to the House at the previous meeting of the House on
4 September 2019. As such on the proper interpretation of Rule 76 of the Rules of Procedure of the Maneaba ni Maungatabu, the Speaker was obliged to accept the motion of no confidence submitted by the Member of Parliament for Marakei. The Court also
found that the Speaker’s decision to reject the motion of no confidence was invalid and of no effect.
3. The case is begun by a writ of summons filed together with a Notice of Motion. The main orders sought in the Notice of Motion replicate those prayed in the writ of summons. As required by the Rules (O.55 r9) of the High Court (Civil Procedure) Rules, the Notice of Motion was served on the respondent together with the writ of summons.
4. Preliminary objections were raised by Ms Maata on the procedure taken by the applicants regarding the Notice of Motion proceedings. I will return to this objection later. For now let me set out the orders sought in the applicants’ Notice of Motion. Those orders are as follows:
(1) An order restraining the Defendant from contravening the Plaintiffs’ Constitutional rights to move and consider motions including a motion of no confidence.
(2) A declaration that the decision of the Defendant adjourning the meeting of the Maneaba sine die without the resolution of the Maneaba was invalid and of no effect.
(3) Mandamus commanding the Defendant to immediately reconvene the 13th Meeting of the 11th Parliament.
(4) A declaration that the decision of the Defendant rejecting the advice by the Plaintiffs to summon the special meeting of the Maneaba is invalid and of no effect.
(5) Mandamus commanding the Speaker to summon the special meeting of the Maneaba immediately or as soon as is allowed by the Rules.
5. In support of the application, the applicants relied on the affidavit of
Hon Titabu Tabane sworn-to on 15 November 2019 and filed with the application. In addition to the affidavit of Hon Titabu Tabane,
the applicants also relied on the affidavit of Hon Rimeta Beniamina sworn-to on
19 November 2019 and filed in this case.
Issues
6. At the commencement of the hearing, Counsel were asked to identify the issues. Both Counsel agreed that the issues identified in the written submission of Counsel for the applicants were the issues necessary for the Court to determine.
7. The issues identified in the written submission of Counsel for the applicants are:
8. Both Counsel indicated to the Court that they were ready to proceed with their arguments. Mr Berina of Counsel for the applicant
made his submission both in writing and orally on behalf of the applicants.
Ms Maata of Counsel for the respondent, has no written submission but only made submission orally.
9. For the first time, and without any notice that the respondent would be raising technical objections, raised what Counsel called “preliminary issues” for the Court to determine. The papers were served on the respondent on Friday 15 November 2019. There was sufficient time for the notice of preliminary issues to be given to the applicants and to the Court. That was not done.
10. But I feel what is more troubling and unsatisfactory is the fact that Counsel for the respondent waited until Counsel for the applicants completed his substantive argument before the preliminary issues were raised by Counsel for the respondent. Legal practitioners who practice in the Courts know or should know that preliminary objections, technical or otherwise, to allegations or claims must be raised prior to or immediately at the commencement of the hearing.
11. The Court, however, allowed Counsel for the respondent to raise and proceed with the preliminary objections in the interest of speedy resolution of the case. Legal practitioners are urged to take heed of good and proper procedure to follow in civil litigation.
Preliminary objections
12. I now return to the preliminary objections raised by the respondent. The main objection raised by Ms Maata is on the use of Notice of Motion procedure in the present case to deal with the claim raised in the writ of summons. Counsel suggested that since the claim was brought under a Writ of Summons, the case should be allowed to follow the procedure applicable to normal civil litigation. That, of course, entails going through the pleadings and other processes and finally, to trial.
13. The answer to that suggestion is very simple. In normal civil claims, the procedure to follow is set out in the Rules, especially O. 21. The present case is not a normal civil claim litigation. The case has issues that are urgently needed to be resolved, such as the legality of the Speaker’s action and whether Parliament should be recalled. Time is also of the essence in the present case, since Parliament has closed and the Court needs to deal with the issues quickly. The applicants therefore have to proceed in the manner now taken.
14. The rules provide for such procedure, as that taken by the applicants, where an action is commenced by a Writ of Summons seeking injunction or other remedies. A Notice of Motion is filed accompanying the writ of summons. Due to the urgent need to deal with the case in the light of the remedies sought, for example, injunction, the notice of motion is available to a plaintiff to be used to claim the injunction. An action by writ of summons is not the only way to claim the remedy of an injunction. It can also be obtained by Notice of Motion, provided the facts are fairly straight forward. That is why the Notice of Motion and Writ of Summons are served together as required by O.55 r9 of the High Court (Civil Procedure) Rules 1964.
15. Upon reading the rules it seems obvious that the alternative procedure by way of Notice of Motion is equally applicable where the nature of the relief sought or the unusual circumstances arise. Order 55 r9 ensures that a Notice of Motion is to be served together with the writ. Order 55 r3 provides that Notice of Motion to be given to the parties affected and Order 53 r13 allows injunction to be granted before or after judgment by way of application. Thus the alternative procedure by way of Notice of Motion is available following the filing of a writ of summons to commence the action, provided the notice of the motion is given to the other parties. Ms Maata’s argument on this preliminary objection is rejected.
16. The other preliminary objection raised by Counsel for the respondent are based on the claim that the proceedings are irregular and an abuse of Court process. Reference was made to “O.52 r13” Counsel argued that there is no such rule as “O.52 r13”. The correct rule is O.53 r13. It is true that there is no such rule as O.52 r13. However, the content of the rule referred to by Counsel for the applicants are correct. It is only the citation of the rule that is not correct. But mere misstatement of the rule reference cannot invalidate the proceedings. The proceedings cannot be said to be irregular or an abuse of process simply because of incorrect reference to the rule. This preliminary objection is also rejected.
17. Then there is the objection that the application by way of Notice of Motion for orders of injunction and mandamus are premature and an abuse of process. This, it is said, is because the action is commenced by a writ of summons. As such the respondent must be allowed to respond to the Statement of Claim and have the substantive Civil Case 78/19 dealt with first. It is said that only after Civil Case 78/19 is dealt with that the remedy of injunction can be sought by Notice of Motion. One only needs to read the rules, like rules 7 and 13 of O.53, and rule 1 of O.56 of the High Court (Civil Procedure) Rules 1964 to know that Counsel’s argument has no merit. Those rules permit applications for injunctions and mandamus to be brought following the issue of the writ of summons. It is a matter of concern to the Court that there appears to be a general lack of grasp of the civil procedure rules by legal practitioners.
18. Those practicing at the Bar will know that the Rules permit an action to be commenced by a writ of summons or other originating processes so as to found a cause of action. The Rules then allow applications by way of Notice of Motions to be utilized depending on the nature of the relief sought or the circumstances of the case, to obtain the relief sought. Counsel’s preliminary objection on this point is without merit and it is rejected.
19. A further objection by Counsel for the respondent is concerned with the relief of mandamus which Counsel argued it should be brought under Rule 61 r2 of the High Court (Civil Procedure) Rules. My reading of O.61 r2 does not say that the applicants can only come by way of judicial review proceeding if they are not happy with the respondent’s decision. In my view, O.61 r2 merely provides a procedure to review decisions of subordinate courts, tribunals or other public bodies performing judicial or quasi-judicial or administrative functions.
20. I feel it should also be pointed out that the O.61 procedure may not be suitable in cases where facts are in dispute, in which
case the plaintiff or claimant may be better off commencing his case by way of a writ of summons. That is what the applicants have
done in this case because
O.61 r2 procedure is not suitable. The objection in this respect is rejected.
Case for the Applicants
21. The case for the applicants as put by Mr Berina, is that the decision by the Speaker on 14 November 2019 to adjourn sine die the 13th Meeting of the 11th Maneaba ni Maungatabu without giving the Maneaba the opportunity to pass a resolution on whether the meeting should be adjourned sine die or not has the effect of denying the applicants their constitutional rights to lawfully and legitimately exercise their duties and responsibilities as elected representatives of the people of Kiribati. It is submitted by Counsel that since the 13th Meeting of the 11th Maneaba ni Maungatabu was the last meeting of the House before it dissolves, it was wrong for the respondent to adjourn the House without a resolution of the House. Reliance is placed on Rule 14(5) of the Rules of Procedure of the Maneaba ni Maungatabu.
22. It is also the applicant’s case that by adjourning the Maneaba ni Maungatabu in the manner that he did, the respondent has
deprived the applicants their constitutional right to move their motion of no confidence in the Government which motion was found
by the Court to be properly and validly submitted to the respondent under Rule 76 for tabling in the Maneaba. The rejection of the
motion by the respondent was declared by the Court to be invalid and of no effect in Ioteba Tebau –v- Attorney-General in respect of The Hon Speaker of the Maneaba ni Maungatabu
(11 November 2019) High Court Civil Case 72 of 2019.
23. The third part of the applicant’s case is that 27 Members of the Maneaba ni Maungatabu signed an Advice to the respondent to recall the Maneaba for a Special Meeting of the Maneaba under section 77(2) of the Constitution. The respondent refused to reconvene the House. The respondent’s refusal to reconvene the House is said to be in breach of the Constitution both in terms of section 77(2) of the Constitution and having the effect of depriving the applicants of their constitutional right to move their motion of no confidence in the Government.
What actually happened on 14 November 2019
24. I feel it is crucial to ascertain what actually happened in the Maneaba ni Maungatabu on 14 November 2019. On the affidavit evidence, both from the applicants and respondent it shows that the Maneaba ni Maungatabu sat in the morning of 14 November 2019 and was adjourned sine die by the Speaker before 12.00 noon that day. It appears from Exhibit “A” to the affidavit of Hon Rimeta Beniamina that oral questions which (presumably submitted by 4.00 pm on Wednesday 13th November 2019) were dealt with by the Maneaba ni Maungatabu on Thursday morning 14 November 2019.
25. According to “Exhibit A”, the next matter on the Order Paper, announced by the Clerk, was the Motion to adjourn the meeting of the Maneaba ni Maungatabu to be moved by the Minister Hon Tetabo Nakara. Hon Rimeta Beniamina also confirmed in paragraph 4 of his affidavit, that the business of the day on the Order Paper was completed. He, however, raised a point of order before the Hon Minister moved the motion to end the Meeting.
26. The Speaker rejected the “Point of Order” raised by the
Hon Rimeta Beniamina because it was not on the Order Paper. The Hon Minister Tetabo Nakara then move the motion to end the meeting
of the Maneaba. The Speaker then adjourned the Maneaba sine die. As the Speaker left his chair, Hon Rimeta Beniamina again raised “Point of Order” to which the Speaker made no response. In his affidavit the Speaker stated that he could not respond to that “point of order” since he had already left the Speaker’s Chair when the “point of order” was raised.
27. The meeting of the Maneaba ni Maungatabu was scheduled to end on 15 November 2019. Since there was no business on the Order Paper for Friday 15 November 2019, the Speaker adjourned the Maneaba sine die on Thursday 14 November 2019 following the motion to adjourn the Maneaba ni Maingatabu moved by Hon Minister Tetabo Nakara. This is the basis of the applicants’ complaint in this case. They said that the Speaker’s decision to adjourn the Maneaba ni Maungatabu in the manner which he did was unlawful and in breach of the applicants’ constitutional rights.
General Principles
28. Before I consider the legal provisions referred to by Counsel, I feel I should state the principles which have been repeated in the various case law authorities on the point regarding the Court’s power to review the decisions of the Speaker or of Parliament on matters concerning the internal proceedings of Parliament. The principle is succinctly put in the case of Ah Chong -v- Legislative Assembly of Western Samoa [1996] WSCA 2 where the Court said:
“There is a well-settled principle that what is said or done within the walls of a legislative assembly cannot be questioned in the Courts. It is recognised that the respective constitutional roles of the Courts and Parliament normally require the Courts to refrain from intervening in Parliamentary proceedings. Conflicts between the judicial and legislative organs of the State are to be avoided as far as possible. Generally speaking, a body such as the Legislative Assembly of Western Samoa is left free to regulate and determine its own internal procedure from time to time . . .
Of course, like all principles this one has its limits and they are not always easily discernible. One limit must be that a written constitution such as that of Western Samoa may place upon the Courts some duty of scrutinising Parliamentary proceedings for alleged breaches of constitutional requirements. Thus, while normally it is for a legislative assembly to determine the effect of its own orders and to depart from them if the assembly sees fit, a Constitution may displace that presumption by making compliance with the standing orders a condition of the validity of the legislation or, no doubt, of the validity of other steps taken by the assembly.”
29. The principle has been repeated and reiterated here in Kiribatti and elsewhere in the Region with written constitution. See Teangana -v- Tong [2004] KICA 18; Tito -v- Speaker of Maneaba ni Maungatabu [2015] KIHC F81; Minister of Police -v- Moala [1997] TOCA 1; Fotofile -v- Siale [1987] TOPC 2; [1987] SPLR 339; Speaker -v- Philip [1991] SBCA 1; Attorney-General -v- Willy Jimmy [1996] VUSC 15 and Ioteba Tebau -v- Speaker (11 November 2019) High Court Civil Case No. 72 of 2019. Thus, the Court has no power to interfere with the decision of the Speaker where such decision is made within the four walls of Parliament in the internal proceedings of Parliament. The only restriction to that power arises where the Speaker’s decision results in a breach of the Constitution.
Decision of the Speaker to adjourn the Maneaba sine die on
14 November 2019
30. Mr Berina submitted that the decision by the Speaker to adjourn the Maneaba ni Maungatabu sine die on 14 November 2019 was in breach of Rule 14(5) of the Rules of Procedure of the Maneaba ni Maungatabu was unlawful. Counsel further submitted that the resultant effect of the decision of the Speaker was to prevent the applicants from moving their motion of no confidence in the Government rendering the Speaker’s decision unconstitutional.
31. The privileges of the Maneaba ni Maungatabu are part of the laws of Kiribati. One of the most important privileges is the power to control its own internal proceedings and the manner in which the Maneaba ni Maungatabu conducts its internal proceedings may not be enquired into by the Courts, unless a breach of the Constitution occurs.
32. Thus the present case is distinguishable from that of Ioteba Tebau
-v- Speaker (11 November 2019) High Court Civil Case 72/19 where the decision of the Speaker to reject the applicants’ notice of motion
of no confidence was a decision made, not within the four walls of the Maneaba ni Maungatabu, but made in the Speaker’s Office
administratively, and so no parliamentary privilege could attach to it. The decision under challenge in the present case is one that
was made by the Speaker in the internal proceedings of Parliament and within the four walls of Parliament. To that extent, the cases
of Teananga -v- Tong and Attorney-General -v-
Willie Jimmy are also distinguishable on their facts from the present case.
33. There can be no question in the present case that the Speaker’s decision to adjourn the Maneaba ni Maungatabu sine die was made within the four walls of the Maneaba ni Maungatabu in the course of the internal proceedings of the Maneaba. The Speaker was entitled to rule on any procedural matter raised on the floor of the Maneaba, even if it means precluding debate: Philip -v- Speaker of the National Parliament [1990] SBHC 118.
34. Rule 14(5) of the Rules of Procedure of the Maneaba ni Maungatabu states as follows:
“(5) A meeting of the Maneaba shall adjourn sine die by a resolution of the Maneaba on a motion moved by the Beretitenti or a Minister”.
35. The above rule clearly provides that a resolution of the Maneaba is required to adjourn the House sine die made following a motion by the Beretitenti or a Minister. In the present case, the extract from the minutes of the proceedings of the Maneaba on 14 November 2019, “Exhibit A” to Rimeta Beniamina’s affidavit, shows that at the conclusion of the business of the House for that day, the Minister Hon Tetabo Nakara moved a motion “that this Maneaba do now adjourn”, following which the Speaker thanked the Minister and stating that since there was no business for the meeting the next day, Friday 15 November 2019, he adjourned the Maneaba sine die. The Minutes do not show any resolution of the Maneaba to adjourn the House sine die as required by Rule 14(5).
36. The submission by Mr. Berina is that the motion moved by the Hon. Minister “that this Maneaba do now adjourn,” was not a motion to adjourn the meeting of the Maneaba sine die. With respect, Counsel’s submission must be right. But the matter, however, does not end there because the question then arises:
Does the non-compliance of Rule 14(5) by the Speaker give this Court the power to intervene and enquire into the correctness of the
Speaker’s decision made in the course of the internal proceedings of the Maneaba, within the four walls of the House? The answer
must be, ‘No,’ unless a breach of the Constitution has occurred as a result thereof. See
Ah Chong v Legislative Assembly of Western Samoa (above) and the other cases referred to earlier in this judgment.
37. The cases of Burdett v Abbott [1811] EngR 83; (1810) 14 East 1, Stockdale v Hansard
9 Ad & E1 and Bradlaugh v Gossett [1884] UKLawRpKQB 20; (1884) 12 QBD 271 laid down the law that still holds true today. Lord Coleridge, in the last mentioned case, at page 275, succinctly put the law in
the following terms:
“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.”
38. This exclusivity of the power of the House to regulate its own proceedings was also reiterated by Stephen J in Bradlaugh v Gossett, at page 280 as follows:
“It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that
interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly.”
39. The protection accorded to what is said and done within the four walls of Parliament is reiterated in Prebble v TVNZ Ltd [1995]1 AC 321. At page 332, the Privy Council stated 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”.
40. The qualification to the above principles has already been referred to above in Ah Chong v Legislative Assembly of Western Samoa (above). That case and the other cases which I have just mentioned have all been referred to and applied by the Kiribati Court of Appeal in Teangana v Tong (above).
41. The applicants’ case is that by adjourning the meeting of the Maneaba in the manner he did, the Speaker was in effect depriving the applicants of their constitutional rights to move their motion of no confidence in the Government. Counsel for the applicants also submitted that the applicants and all the other members of the Maneaba have been denied the opportunity to debate and pass a resolution on whether the Maneaba should be adjourned sine die or not. The applicants also claim to have been deprived of their constitutional rights to lawfully and legitimately exercise their lawful duties responsibilities as duly elected representatives of the people of Kiribati.
42. With regard to the motion of no confidence, I am not entirely clear which motion of no confidence is referred to by Counsel.
There was the motion of no confidence submitted on 31 October 2019 by the MP for Marakei which this Court found in Civil Case 72
of 2019 (Judgment on
11 November 2019) to have been wrongly rejected by the Speaker. Enforcement proceedings in Civil Case 75/19 to enforce the declaratory
judgment of the Court in that case had to be adjourned due to the Speaker’s decision to adjourn the Maneaba sine die. In the present proceedings arising out of the sine die adjournment, another notice of motion of no confidence was submitted on 14 November 2019, the same day the Speaker adjourned the
Maneaba sine die. That notice of motion was also submitted by the MP for Marakei. For the purpose of the argument that the sine die adjournment adversely affected the rights of the applicants to move their motion of no confidence, the status of these two notices
of motion of no confidence must be ascertained.
43. The motion of no confidence submitted on 31 October 2019 complied with the requirement of Rule 76 of the Rules of Procedure of the Maneaba ni Maungatabu. It was validly submitted and the Speaker was obliged to accept it for tabling and debate in the Maneaba. As the Maneaba was scheduled to meet from 4th-15th November 2019, the motion of no confidence submitted on 31 October 2019 clearly fitted in the scheduled meeting of the Maneaba to be debated, had the Speaker accepted it following the declaration made by the Court.
44. The Speaker’s decision to adjourn the meeting of the Maneaba made on 14 November 2019 made it no longer possible for him
to accept (as he was obliged to do) the motion of no confidence submitted on
31 October 2019 for debate within the scheduled meeting of the Maneaba. That motion is therefore spent. It was overtaken by event.
Although it was validly submitted, in accordance with Rule 76, it needed to be accepted by the Speaker in order for the motion to
find its way into the Order Paper for debate.
45. It would be different if the Speaker accepted the motion when it was submitted on 31 October 2019 or when the declaration was
made and then proceeded to adjourn the Maneaba. The decision to adjourn sine die, in such circumstances, would clearly amount to deprivation of the applicants’ right to move their motion of no confidence.
In Willie Jimmy -v-
Attorney-General (above), the motion of no confidence was submitted and already accepted by the Speaker of Parliament, for debate. The Speaker, thereafter
refused to call Parliament. The action of the Speaker clearly had the effect of depriving the applicants in that case of having
their vote of no confidence being moved and debated.
46. In the present case, however wrongly the Speaker ruled to adjourn the Maneaba sine die, his decision did not have the effect of depriving the applicants of their constitutional rights to move the motion of no confidence that was submitted on 31 October 2019. That motion still had not found its way into the Order Paper for debate.
Motion of no confidence dated 14 November 2019
47. I take it that the motion of no confidence dated 14 November 2019 was a new motion, submitted and received on the same day that the Speaker adjourned the Maneaba sine die as shown by the Office Stamp of the Maneaba ni Maungatabu. Unlike the motion of no confidence dated 31/10/19, the motion of no confidence dated 14/11/19 bears no evidence that it had been received by the Speaker for his approval or otherwise. That part of the motion paper which requires approval and signature of the Speaker is blank. That part of the motion paper for comments by the Clerk or Parliamentary Counsel is also blank. The strong inference is that the motion of no confidence dated 14/11/19 had not yet reached the Speaker at the time the Maneaba was adjourned sine die.
48. I have no doubt that the motion of no confidence dated
14 November 2019, was clearly intended to be moved at the Special Meeting of the Maneaba as stated in the letter of Advice to the
Speaker to Summon a Special Meeting of the Maneaba. In my view the fate of that motion does not lie with the decision whether a
Special Meeting of the Maneaba is to be called or not. That motion has hurdles to overcome before it can even be considered for
inclusion in the agenda for the Special Meeting of the House, assuming that the Special Meeting of the Maneaba is to be called as
requested by the applicants.
49. The first hurdle that the applicants have to overcome, in my view, is to show that at the time the motion of no confidence dated 14/11/19 was submitted (assuming it has complied with the Rules of Procedure of the Maneaba ni Maungatabu, including Rule 76 and was accepted) the Maneaba had not yet adjourned sine die but was still sitting. I prefer to call this the test of sitting because if the Maneaba was still sitting when the motion was submitted (and assuming it was all in order for tabling and debated) and the Speaker adjourned the Maneaba sine die, then the applicants’ right under section 68 (1) of the Constitution, to have the motion moved and debated may well be jeopardised. Secondly, the applicants would have to show that their motion of confidence dated 14/11/19 is a matter that can properly be regarded as of special importance for the Special Meeting to consider in this case.
50. I have considered the two hurdles faced by the applicants in this case with regard to their motion of no confidence. On the first hurdle, there is no evidence from the applicants to show that at the time they submitted their motion of no confidence on 14/11/19, the Maneaba was not yet adjourned sine die, but that it was still sitting. To the contrary, the evidence before the Court shows that the motion of no confidence was submitted after the Maneaba had already been adjourned sine die as stated in the Letter of Advice to the Speaker as follows:
“....The special meeting is to enable the Maneaba to consider a motion of no confidence in the Government submitted herewith
which motion is to be moved by the Hon Ioteba Tebau, the Member from Marakei and also to enable Parliament to finish the unfinished
business of the 13th meeting of the
11th Parliament which business was not completed due to your unfortunate decision to adjourn the meeting sine die this morning. ....”
51. In my judgment, the motion of no confidence submitted by the applicants on 14/11/19, after Speaker adjourned the meeting of the Maneaba sine die, is incompetent and as such when the Speaker adjourned the Maneaba sine die, no breach of the applicants’ rights under section 68 of the Constitution arising out of that motion was caused. It follows also that the said motion of no confidence is not and cannot be properly regarded as a matter for consideration by a special meeting of the type requested by the applicants in this case.
Advice to summon a Special Meeting of the Maneaba
52. I now deal with the issue of whether the Maneaba ni Maungatabu should be reconvened. On 14 November 2019 immediately following the respondent’s decision to adjourn the meeting of the Maneaba sine die, 27 Members of the Maneaba (the applicants) signed the Advice pursuant to section 77(2) of the Constitution advising the respondent to summon a special meeting of the Maneaba. The Advice is in the following terms:
“Maneaba ni Maungatabu
Ambo
14th November 2019
The Hon Tebuai Uaai
Speaker
Mwaneaba ni Maungatabu
Ambo
Dear Hon Speaker,
Further to our advice which was delivered to you earlier on today, please be informed that we hereby revoke such advice. In its place we respectfully submit the following advice.
Pursuant to section 77(2) of the Constitution and Rule 15(1) of the Rules of Procedure of the Maneaba ni Maungatabu we, the undersigned Members of the 11th Parliament of the Maneaba ni Maungatabu, hereby advise you to summon a special meeting of the Maneaba.
In compliance with Rule 14(2) of the Rules of Procedure we ask that you appoint Wednesday, 18th December 2019 at 10 o’clock in the forenoon as the day for the special meeting of the Maneaba. We also ask that the Clerk issues the Notice of the Meeting to Members tomorrow, Friday, 15th November 2019, in compliance with Rule 14(3) of the Rules of Procedure of the Maneaba ni Maungatabu.
The special meeting is to enable the Maneaba to consider a motion of no confidence in the government submitted herewith which motion
is to be moved by the Hon Ioteba Tebau, the Member from Marakei and also to enable Parliament to finish the unfinished business of
the 13th meeting of the 11th Parliament which business was not completed due to our unfortunate decision to adjourn the meeting sine die this morning. As you very well know the last day of the meeting for the 13th meeting of the 11th Parliament is Friday
15th 2019. You adjourned the meeting sine die without a motion moved by Te Beretitenti or the Minister and without the resolution of the Maneaba.
We look forward to receiving your favourable response.
Yours sincerely
(27 Members)”
53. Although the date of the respondent’s letter of reply was, obviously not correct, the respondent replied to the Petitioners’ letter of Advice as follows:
“Petitioners,
ADVISE TO SUMMON SPECIAL MEETING OF THE MANEABA
I write in response to your letter dated 14 November 2019 regarding your advice to summon special meeting of the Maneaba.
In respect of a petition for a special meeting of the Maneaba it is clear that summoning of the Maneaba is within my discretion under section 77(1) of the Constitution.
With due respect to your advice, I regret to inform you that after considering your advice in light of the reasons relied upon to convene a special meeting, I decline to accept your advice.
Ko rabwa.
Mr Tebuai Uaai
Speaker
Maneaba ni Maungatabu”
54. Section 77 of the Constitution provides for the summoning of the Maneaba ni Maungatabu. Since it is of material importance in this case, I set it out below:
“77.- (1). Subject to the provisions of this Constitution and of the rules of procedure of the Maneaba of 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.
(3) Meetings of the Maneaba shall be held within thirty days of the second ballot in a general election and shall otherwise be held so that a period of twelve months does not intervene between the end of one meeting and the first sitting of the Maneaba in the next meeting.”
55. The power to convene the Maneaba ni Maungatabu lies within the discretion of the Speaker to exercise. The decision is his and his alone and nobody can direct the Speaker, subject only to the Court’s power of judicial review for breaches of the Constitution, to convene the meeting of the Maneaba at a particular place or time. Section 77 (2) of the Constitution does not direct the Speaker to convene the Maneaba. The section merely recognises that, apart from the scheduled regular meetings of the Maneaba, there may be situations in which it may become necessary to request the Speaker to exercise his statutory powers to convene the Maneaba, in which case, section 77 (2) gives the mandate to the Beretitenti or to one-third of the members to advise the Speaker to call a meeting of the Maneaba.
56. Although section 77 of the Constitution does not use the words “special meeting,” rule 15 (1) of Rules of Procedure of the Maneaba ni Maungatabu appears to suggest, by its heading, that the petitioned meeting is a “special meeting” of the Maneaba outside its scheduled
regular meeting. The applicants’ Advice is for the Speaker to summon a “special meeting” of the Maneaba. The Letter
of Advice sets out the reasons for the applicants’ call to convene the Maneaba. I have also set out the applicants’
reasons at paragraph 49 of this judgment. In addition, the
Hon Titabu Tabane, Leader of the Opposition, at paragraph 8 of his affidavit sworn-to on 15/11/19, also expressed the reasons for
calling on the Speaker to convene the Maneaba, as follows:
“8. On or about 14th November, 2019, 27 members of the Maneaba advised the Speaker to summon the special meeting of the Maneaba. The special meeting was to deal with the unfinished business of Parliament and to debate a motion of no confidence in the government”.
57. The Speaker received and considered the reasons for the applicants’ Advice and rejected the Advice to summon the Maneaba for a special meeting. He reasoned:
With due respect to your advice, I regret to inform you that after considering your advice in light of the reasons relied upon to convene a special meeting, I decline to accept your advice.
58. As I have found that the applicants’ motion of no confidence dated 14/11/19 was incompetent and that at the time the Speaker adjourned the meeting of the Maneaba sine die there were no other business outstanding before the House, it would seem that the basis for the special meeting requested, no longer exists. In view of those findings, the applicants would have to show that the Speaker’s decision declining to summon the Maneaba was an unfair, unreasonable and unlawful exercise of his statutory powers. See Teangana v Tong (above) where the Court of Appeal also stated, in respect of section 77 of the Constitution that:
“... 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.
...... in our view the preferable, approach is the one the Courts generally take when reviewing the exercise of a statutory power of decision, which is what is in question here. The Courts will ensure that there was no procedural unfairness, that the decision was not unlawful, and that it was reasonable.”
59. The same must be said in this case. In the light of the rules of procedure regulating the business of the Maneaba ni Maungatabu, the speaker had exercised his statutory powers, based on his knowledge and skills, and political awareness which were necessary to assist him in making his decision. He assessed the reasons given by the applicants and decided to reject the applicants’ Advice. The Speaker’s decision to decline to summon the Maneaba, in the present case is, in the Court’s view, reasonable and lawful.
Injunction and mandamus
60. Before I conclude this judgment, I wish briefly to make a few remarks on the two reliefs sought in this case. The law has moved on in the areas of injunction and mandamus against the Crown or the State. While the reliefs are not available against the State, they are available against officers of the State. See Reg. v The Commissioners of Customs and Excise, Ex parte Cook and Another [1970] 1 W.L.R. 450; M v Home Office [1994]1 AC 377; Hatilia v Attorney General [2012] SBHC 101. The principles in those cases are applicable to Kiribati.
61. In the circumstances as obtained in this case and on the evidence before the Court, I find that there is no basis in law upon which the reliefs of injunction and mandamus can be issued against the respondent Speaker of the Maneaba ni Maungatabu.
Conclusion
62. In summary, this case arose out of the Speaker’s decision to adjourn the Maneaba ni Maungatabu sine die. Despite the firm and able submission by Mr. Berina of Counsel for the applicants, I have found and held that the Speaker’s decision to adjourn the Maneaba was a decision made on the floor of the Maneaba ni Maungatabu in the course of the internal proceedings of the Maneaba and made within the four walls of the Maneaba. I have also found that in the circumstances of this case, no breaches of the applicants’ rights under the Constitution have occurred. This Court therefore has no power to interfere with the decision of the Speaker. In my judgment, it must follow that the orders sought by the applicants in their notice of motion cannot be granted.
63. The orders sought and the Court’s answers are as follows:
(1) An order restraining the Defendant from contravening the Plaintiffs’ Constitutional rights to move and consider motions including a motion of no confidence.
Answer: No injunction can be issued against the respondent as no breaches of the applicants’ constitutional rights to move a motion of no confidence have been made out.
(2) A declaration that the decision of the Defendant adjourning the meeting of the Maneaba sine die without the resolution of the Maneaba was invalid and of no effect.
Answer: The declaration sought is declined as the decision made by the respondent was made on the floor of the Maneaba and within the four walls of the Maneaba ni Maungatabu and is protected by the privilege of the Maneaba.
(3) Mandamus commanding the Defendant to immediately reconvene the 13th Meeting of the 11th Parliament.
Answer: An order of mandamus cannot be issued in this case to command the Speaker to reconvene the 13th Meeting of the 11th Parliament as the basis for it has not been made out.
(4) A declaration that the decision of the Defendant rejecting the advice by the Plaintiffs to summon the special meeting of the Maneaba is invalid and of no effect.
Answer: This declaration is refused for the reasons stated in the judgment.
(5) Mandamus commanding the Speaker to summon the special meeting of the Maneaba immediately or as soon as is allowed by the Rules.
Answer: In the circumstances of this case, an order for mandamus commanding the Speaker to summon the Maneaba ni Maungatabu to convene a special meeting of the Maneaba cannot be made and it is refused.
The applicants’ application is dismissed. The respondent’s preliminary objections are also rejected. There will be no order for costs. Each party to bear its own costs.
Dated the 2nd day of December 2019
SIR JOHN MURIA
Chief Justice
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