IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION

HIGH COURT CIVIL CASE 42 of 2019

BETWEEN:	MERERIN IOAKIM 
	Plaintiff

AND:	THE ATTORNEY GENERAL IN RESPECT OF MINISTRY OF FISHERIES MARINE AND RESOURCES DEVELOPMENT	
Defendant

Date of Hearing:	24 April 2024, 6 December 2024, 14 August 2025, 28 August 2025, 1 September 2025
Date of Judgment:			29 October 2025

Appearances:		Mrs. Kiata Kabure Ariera for the Plaintiff
                                            Ms. Teanneki Nemta for the Defendant

JUDGMENT

The case
1.	By writ of summons, the plaintiff sues the defendant for discriminatory treatment contrary to section 15 of the Constitution. In 2018, the plaintiff applied to the defendant, the responsible ministry for a cannery training in Korea. According to the plaintiff, she ranked first in the test and interview. The defendant disqualified her because of her medical report, which states that she has had a mental illness, bipolar affective disorder, having been admitted at the Meeria Ward, with a 50% chance of relapsing if she experiences severe mental distress.

2.	The plaintiff claims the following relief;

-	general damages, 
-	loss of income in the sum of US$12,000, 
-	emotional distress damages,
-	interests,
-	cost of this action.

3.	Section 15 (2) and (3) of the Constitution states the following;
“2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
3) In this section, the expression ‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origion, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”
 
Plaintiff’s Case 
4.	The plaintiff raises three issues for the court's consideration as follows;
a)	Whether or not the plaintiff is mentally discriminated against by the defendant,
b)	If so, whether or not the plaintiff is entitled to the loss of income she would have received from the Cannery training in Korea.
c)	Whether or not the plaintiff is entitled to general damages and emotional distress?

5.	The plaintiff argues that the defendant was discriminatory in their selection process when they disqualified her from the training program due to her mental health report. She testified that she has been mentally healthy since 2017, when she was discharged without needing medications. Her doctor also provided a report confirming her mental state as mentally fit. Additionally, her former employer supported her claim, stating that she has been working with them since 2017 and has never displayed any signs of a mental disorder.

6.	It is also the plaintiff’s evidence that the Human Resource Manager told her to submit her full medical report to the ministry because she is one of the successful candidates. The fact that she was excluded from the training list due to her past mental illness is a form of discrimination. Although she has fully recovered from her mental illness, she was still denied this opportunity because there is a 50% chance of her relapsing.

7.	The plaintiff asserts that section 15 of the Constitution prohibits discrimination of any kind against all persons by anyone acting in an official capacity. Counsel for the plaintiff argues that discrimination also includes those based on disabilities, which encompass mental health conditions. 

8.	The plaintiff testified that she suffered distress and embarrassment from being disqualified because of her past mental health issues.

The Defendant’s defence.

9.	The defendant also raises three issues for the court to consider as follows;
a)	Whether the selection process was discriminatory,
b)	Whether the plaintiff was treated differently from other successful candidates,
c)	Whether the defendant, for no legitimate reason, treated the plaintiff differently.

10.	The defendant argues that the plaintiff bears the responsibility of proving that the selection process was discriminatory or that the plaintiff was treated differently than other successful candidates.

11.	The defendant denied that there was discrimination against the plaintiff when she was excluded from the training. The selection process was not discriminatory.

12.	Their first witness testified that they had to undergo a verification process because the medical certificates produced by all candidates exclude other relevant information, such as disciplinary issues, personal conduct in the workplace, immigration issues, and others. This was done for all successful candidates. As a result of this verification, one candidate was screened out due to immigration issues, and the plaintiff was screened out because of the doctor’s report. The witness also said they conducted this verification because they had learned from their first intake that one of them had been returned for medical reasons.

13.	The second witness also confirmed that they experienced issues with their first intake, which is why they were cautious with this lot. The witness testified that the only reason the plaintiff was not successful was due to her past mental health issues, and that she has not fully recovered because she still faces a 50% chance of relapsing under stress. The witness also mentioned that working abroad is difficult and that being away from her family would mean she would miss out on that kind of support. The defendant argues that the plaintiff was never given this opportunity; therefore, she cannot claim damages for something she was not provided in the first place. 

Court’s Finding
14.	The plaintiff said she was screened out because of her disability. This disability was her past mental health issues, for which the psychiatric doctor mentioned in the plaintiff’s medical report that she has a 50% chance of relapsing if she is under severe stress. 

15.	 I have reviewed the doctor’s report. Besides noting that the plaintiff previously had a mental health issue and has a 50% chance of relapsing into severe mental distress, the report also recommends that if she is allowed to leave, she should see a doctor again to obtain additional medications in case she relapses outside of Kiribati.

16.	Based on the above report, I agree with the defendant that the selection process was based on the plaintiff’s medical report. However, the report does not recommend that she is unfit for work outside Kiribati. The report suggests that the plaintiff see the doctor again to take her medications before leaving for work outside Kiribati.

17.	The defendant’s second witness indicated that for the plaintiff to work abroad, away from her family, would likely cause her distress and trigger a relapse. That is why the defendant decided not to recruit her. 

18.	The key issue is whether the selection process was discriminatory. The plaintiff argues that it was discriminatory because she was screened out due to her disability, which involved past mental health issues and the risk of relapsing. The defendant contends that there is no discrimination based on disability and that it does not fall under any of the categories for discrimination outlined in section 15 of the Constitution. 
19.	Looking at section 15 of the Constitution, for ease of reading, the text is quoted again here, 

“2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
(3) In this section, the expression ‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”
20.	 The issue is complex because the above provision does not explicitly mention mental disability or disability in general. The plaintiff did not present arguments to explain that ‘mental disability’ must be included even if not explicitly stated. However, this is how I interpret this issue: the purpose of subsection 2 above is to prohibit any form of discrimination against all persons. The main goal of this provision is to ensure that everyone is given equal treatment under the laws of Kiribati or in the performance of duties by any public official in the course of their work. No human should be treated with indifference of any kind. 

21.	Although mental disability is not explicitly mentioned in this definition, the use of the phrase ‘no person’ aims to encompass all individuals, including those with current mental illness, past mental illness, or fears of relapse. Omitting these groups would undermine the goal of safeguarding human rights from discrimination, as described in subsection 2. 

22.	Kiribati has acceded to the UN Convention on the Rights of Persons with Disabilities (CRPD) 2013. This demonstrates a clear intention by Kiribati to protect persons with mental disabilities. The protection includes preventing unfair treatment of individuals with past mental disabilities and addressing the fear of relapse. 

23.	The parties in this case did not refer this Court to any case precedents. However, the issue is not novel in other jurisdictions. The leading cases in other common law jurisdictions that are persuasive in our jurisdiction concluded that the description of mental disability could fall under the category of ‘analogous ground’ to the respective descriptions in the provision.  

24.	The Canadian case of Quebec (Attorney General) v A., 2013 SCC 5, at paragraph 332 of the judgment recognises equality rights on analogous grounds under the anti-discrimination Constitutional provision (s.15), which states as follows: 

“The purpose of s.15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. This purpose extends to discrimination based on distinctions that while not expressly enumerated in s.15(1), are analogous to those that are.”

25.	In the above case, the issue was whether the exclusion of unmarried partners (de facto) from certain protections and benefits under Quebec’s family law constituted discrimination in violation of the equality rights provided by the Charter of Rights and Freedoms. Section 15 of the Charter states that;
“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

26.	The Supreme Court of Canada recognised this section as covering protection against discrimination for grounds not explicitly listed, such as marital status (de facto). However, the ruling justifies the discrimination on the grounds of Quebec’s legislative autonomy and the policy context. This case’s rationale has been used to support the conclusion that the protection of equality rights also extends to categories not specifically listed on analogous grounds.

27.	The Canadian case above is persuasive for the situation in the current case before this court. It aligns well with my view, expressed in paragraphs 20 and 21 above, that the constitutional purpose of section 15(2) is to protect all persons from all forms of discrimination. In my opinion, although the descriptions listed in subsection 3 are limited, they should not be seen as exhaustive of only those specified. The protection should also extend to all other personal characteristics not listed in the provision, such as mental disability or any disability of any form, on analogous grounds, because they face the same unfair treatment as the specified characteristics when discrimination occurs, which is the core principle protected by this provision. This is the only reasonable explanation; otherwise, subsection 3 would be considered unconstitutional in its effect.

28.	The critical question is whether the plaintiff was denied equal benefit and protection under section 15(2) of the Constitution, based on her past mental disability or fear of relapsing, which resulted in enabling disadvantage or prejudice.  

29.	The fact that the defendant excluded the plaintiff due to a concern about her mental disability relapsing amounts to discrimination against her, especially because the plaintiff’s medical report did not advise against her hiring or indicate that she is not mentally fit. Furthermore, the defendant failed to prove to this court that the type of work the plaintiff would perform could not accommodate her current condition if her mental disability relapses.  

Outcome
30.	For the reasons outlined above, I find the defendant liable for treating the plaintiff in a discriminatory manner in violation of section 15(2) of the Constitution.
31.	Cost is awarded to the plaintiff, which will be agreed upon or taxed.
32.	I will hear parties again on the issue of damages, and the hearing date will be set through the PTC.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice