Itinteang v Leadership Commission [2023] KIHC 36; Civil Appeal 1 of 2021 (2 August 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL APPEAL 1 OF 2021

BETWEEN: DR TINTE ITINTEANG
Appellant

AND: LEADERSHIP COMMISSION
Respondent

Date of Hearing: 26 May 2023
Date of Judgment: 2 August 2023

Appearances: Ms. Kiata Kabure for the Appellant
Solicitor General, Ms Tumai Timeon for the Respondent

JUDGMENT

1. As a brief background of the parties in this case, the Appellant was a former medical doctor contracted by the government of Kiribati through its Ministry of Health and Medical Services, as a “Surgical and Emergency Department Specialist, assist in KITP supervisor, Research Coordinator”. The Respondent was established under section 13(1) of the Leaders Code of Conduct Act 2016
2. The appeal was brought by the Appellant pursuant to section 18(4)(a) of the Leaders Code of Conduct Act 2016 (the Act) which set out that,

“A person named in a decision or order made under this Code may appeal to the High Court. The High Court may dismiss the appeal summarily without hearing it, or after hearing the appeal, may make an order upholding, quashing or varying the order or decision.”

3. It is clear that this court has power to hear appeals with respect to the above section of the Leaders Code of Conduct Act.
4. Before going through the grounds of appeal and the submissions from both parties, it is vital to comment on how this appeal was brought to this court and the response from the Respondent.
5. Ms Kabure, acting for the Appellant in their Notice of Appeal, failed to include the relevant provision of the Leaders Code of Conduct Act 2016 endorsing their application as it is the normal procedure in applications to this court. The application should include the law and relevant provision the application relied upon.
6. Additionally, the Appellant has no affidavit to support his appeal except the skeletal submission filed by Ms Kabure. It is a matter of good practice to always support your appeal application with an affidavit.
7. The decision of the Leadership Commission (Commission) for the Appellant’s case 43/06MAR20 was issued on 4 November 2020. The Appellant filed its appeal against the decision with this court on 11 January 2021,
8. Section 18(4)(b) of the Leaders Code of Conduct explains that,

“...appeals against a decision or order are deemed exhausted after two months from the date the decision or order was made.”

9. The Respondent did not raise this important issue nor the Appellant addressed it in their submission and with no affidavit, was not addressed by the Appellant. The provision above relates to what is known in law as the “deemed exhausted” rule, stating that a plaintiff’s administrative remedies will be deemed exhausted if the plan has failed to establish or follow certain claims procedures. In this case, the Appellant’s remedial claim including to appeal the decision would be exhausted after two months since the order was issued on 4 November 2020.
10. As I mentioned earlier, the Respondent did not raise this preliminary issue in their submissions both written and orally and in light of the fact that it is the first case of its kind to be filed in this court, I exercise my discretion to allow the hearing of this appeal with respect to section 18(4)(b) of the Leaders Code of Conduct Act 2016. However, it is always in the best interest of justice that lawyers observe these legal and procedural issues.
    

The Appeal

11. The crux of the Appellant’s application is the unlawfulness of the investigation done against the Appellant who was not a leader when the investigation was carried out by the Leadership Commission. This court will firstly consider ground 5 of the Appellant’s application stating that,

“The Commission erred in law in coming to a conclusion where they have no legal authority to do. Their recommendations are unfair, impartial and unlawful.”

12. Ms Kabure in her submission with respect to ground 5 stressed that according to section 3 of the Leaders Code of Conduct Act 2016, the interpretation of the word leader does not refer to the Appellant’s position or work when he was investigated. The section is shown as follows,
    

“leader” include a person who currently hold any of the following positions:

1. Te Beretitenti;
2. Kauoman ni Beretitenti;

100. Minister;

4. Speaker, Clerk of the Maneaba ni Maungatabu;
5. Member of the Maneaba ni Maungatabu;
6. Attorney General, Solicitor General, Director of Public Prosecution;
7. Chief Justice, Judge, Magistrate, Registrar of Court;
8. Commissioner of Police;
9. Mayor, Councillor, Clerk of Local Government;
10. Administrative Head of a Government Ministry, Agency and State-Owned Enterprise (including Board Director);
11. Constitutional Office Holder, Kiribati High Commissioner or Ambassador, Special Envoy.”
    

13. The Commission’s investigation and decision against the Appellant was done when the Appellant was contracted by the government of Kiribati as a “Surgical and Emergency Department Specialist, assist in KITP supervisor, Research Coordinator” within the Ministry of Health and Medical Services. The contract was duly signed by the Appellant, as the employee on 4 February 2019 and by the government of Kiribati, as the employer on 5 February 2019.
14. The contract provisioned that the Appellant’s overall supervisor is the Secretary of the Ministry of Health and Medical Services and to report to the Director of Hospital Services as the Immediate Supervisor.
15. As sturdily submitted by Ms Kabure, this shows that the Appellant in his capacity as the contracted ‘Surgical and Emergency Department Specialist, assist in KITP supervisor, Research Coordinator’, was not the administrative head of the Ministry of Health. The Appellant’s work or position with the government of Kiribati in 2019 was not meant for a leadership capacity and his position does not fall under the definition of a leader under section 3 of the Act.
    

The Respondent’s arguments:

16. The Solicitor General, Ms Timeon, responded on behalf of the Commission.
17. In her written and oral submission, she emphasised that the Commission considered the complaint against the Appellant with respect to allegations for his recruitment which was corrupt and unfair as found by the Commission. The issue about the Appellant’s malpractice was not within the power of the Commission as submitted by Ms Timeon.
18. Ms Timeon, strongly submitted that some recommendations are justified particularly against the former Secretary of Health which is currently under review by the Office of the Attorney General. Ms Timeon, submitted that the Commission was only recommending for proper actions by the other government’s entities and took for consideration the complaint given its nature referring to a corrupt and unfair recruitment process of the Appellant.
19. However strong her submission was, Ms Timeon, conceded that the Appellant in his capacity as a contracted “Surgical and Emergency Department Specialist, assist in KITP supervisor, Research Coordinator”, does not fall under the definition of a leader.

Findings of this court

20. This is the first ever appeal against the decision or recommendations of the Leadership Commission and this court acknowledge the able submissions of both counsels assisting this court however, I reiterate the need to thoroughly consider both legal and procedural issues with respect to the law and procedure at hand before putting together an application such as this one.
21. In considering ground 5 of the Appellant’s appeal, it is worth considering section 2 of the Act strongly asserting that the Act when it was enacted is for leaders to understand “...the essence of holding public office is the duty of trust which is attached to the office. Public Office Holders, as Leaders, have the duty to uphold the dignity and independence of their offices, to discharge their duties with a strong sense of commitment to the public interest and to steer clear of decisions that are motivated by self-interest.”
22. Another important provision of the Act not yet discussed is section 13(5) which set out the primary functions of the Leadership Commission when it was established including,

1. to receive complaint against Leaders;
2. to investigate alleged violations of this Code;

100. to require the evidence of any witness (whether written or oral) to be given on oath or affirmation;

4. to summon any person to give evidence or produce relevant documents or things in his possession;
5. to report on the outcome of all investigations;
6. to educate the public on matters related to this Code, and
7. to determine their own rules of procedures.
   

23. The Appellant’s fifth ground of appeal submitted that “the Commission erred in law in coming to a conclusion where they have no legal authority to do. Their recommendations are unfair, impartial and unlawful.” The question is, does the Commission erred in law in considering the complaint against the Appellant, conducted an investigation and issued a decision against the Appellant? Does the Commission have power to make such a decision against the Appellant?
24. I agree with Ms Kabure as conceded by Ms Timeon, and found that the Appellant when contracted by the Ministry of Health in 2009 after signing the contract of employment, was not a leadership position or one that is covered under section 3 of the Act. In serving as the “Surgical and Emergency Department Specialist, assist in KITP supervisor, Research Coordinator”, the Appellant was not serving as a leader nor the administrative head of the Ministry of Health and Medical Services.
25. To this extent, the Commission have exceeded its power in conducting an investigation against the Appellant when section 13(5) of the Act only empowers the Commission to investigate leaders alleged to have infringe the provisions of the Act particularly with respect to issues pertaining to corruption and abuse of public office. Even though the decision was only recommending actions to be done by the other relevant authorities, it is vital to adhere to the powers set out in the Act.
26. It is therefore this court’s finding that the Appellant was not a leader as defined by section 3 of the Leaders Code of Conduct Act 2016, and that the Leadership Commission’s investigation and decision against the Appellant with respect to a complaint alleging corruption in the recruitment of the Appellant was unlawful since the Appellant was not a leader. The Appellant’s ground 5 of his appeal is granted and this court finds that the Commission have erred in law in conducting an investigation and making the decision against the Appellant.
27. In light of the submissions by the Solicitor General, this decision does not interfere with the Commission’s findings or the work of the Office of the Attorney General with respect to the other concerned officials involved in the recruitment of the Appellant in 2019.
28. This court does not need to consider the other grounds of appeal in light of its finding with respect to ground 5.
    

Orders of this court

1. The appeal is granted;
2. In accordance to the above consideration and decision, the decision of the Leadership Commission 43/06Mar20 is quashed;

100. Costs is awarded to the Appellant to be taxed if not agreed.
     

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ABUERA URUAABA (MR)
Commissioner of the High Court