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Tong v Chief Justice [2007] KIHC 152; Civil Case 141 of 2007 (16 October 2007)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 141 of 2007

Between:

Dr Harry Tong as MP for South Tarawa
Applicant

And:

Honourable Chief Justice
1st Respondent

Honourable Taomati Iuta as Speaker for Maneaba ni Maungatabu
2nd Respondent

For the Applicant: Ms Taoing Taoaba
For 2nd Respondent: Mr David Lambourne, Solicitor General

Date of Hearing: 12 October 2007

JUDGMENT

Dr Harry Tong as MP for South Tarawa on 3rd October filed an Amended Notice of Motion naming the Hon Chief Justice and the Hon Taomati Iuta as Speaker for Maneaba ni Maungatabu as respondents. The application is for these orders:-

1. An order declaring that the method of voting conducted during the election of the Speaker was not by secret ballot and therefore inconsistent with the Rules of Procedure of Parliament section 6(3) and therefore was null and void.
   

In the Alternative

2. An order declaring that the method of voting conducted during the selection of nominees for the Beretitenti candidacy was not by secret ballot and therefore inconsistent with section 5(2) of the Election of Beretitenti Act and therefore was null and void.
   
3. An order declaring that the exemption of Dr Harry Tong and
   Dr Tetaua Taitai by the Speaker from the ballot in the third round of selection is null and void.
   
4. An order to stay the election of Te Beretitenti until this matter is disposed of.
   

On the same day I made an Order:-

With a view to giving them an opportunity to apply to intervene in the proceedings ORDER that the other persons named in paragraph 8 of the applicant’s affidavit be served with the amended application.

The persons named in paragraph 8:-

Anote Tong

Harry Tong

Tetaua Taitai

Taaneti Mamau

Nabuti Mwemwenikarawa

Patrick Tatireta

Timon R Aneri

No one applied.

On 8th October the Chief Registrar caused a radio announcement to be made and it was made several times:-

Dr Harry Tong as MP for South Tarawa, has applied to the High Court complaining of the method of voting used in the Maneaba ni Maungatabu during the election of Speaker, the method of voting used in the Maneaba ni Maungatabu during the selection of candidates for election as Te Beretitenti and the exclusion of himself and Dr Tetaua Taitai from a ballot during that selection.

Dr Tong seeks an order to stay the election of Te Beretitenti due to be held on Wednesday 17th October until this matter is disposed of.

The Hon the Chief Justice proposes to hear the application at nine thirty next Friday morning.

All persons who wish to intervene and be heard in the matter are to notify the Chief Registrar in writing no later than 4 o’clock next Wednesday afternoon, 10th October of their interest and are to be ready to present argument to the Court next Friday, 12th October.

No formal applications were received but the Chief Registrar did have three letters, two on behalf of Boutokan te Koaua Party in opposition to the application and one from eight persons in Banraeaba complaining that no member of the Opposition had been selected as a candidate for election as Beretitenti.

When the application had been mentioned on 8th October Ms Taoaba asked that I disqualify myself from hearing it even though that would mean postponing the election until after a judge could come from overseas.

[Ms Taoaba used the word "recuse". That is an Americanism I don’t much like. "Recuse" does not appear in the sense of disqualification in the eighth edition (1990) of the Concise Oxford. By the eleventh edition (2004) it had slunk into the language but "chiefly N. American and S. African"].

At the beginning of the hearing last Friday I asked Ms Taoaba if her instructions remained the same, that I should disqualify myself. Those still were her instructions.

Contrary to Mr Tekanene’s instructions on 8th October that his client, the Speaker, did not ask me to disqualify myself, last Friday the Solicitor General had the same instructions as Ms Taoaba: that I should disqualify myself based on the risk of perceived bias. If I were to hear the application there would be the appearance of bias: I would be seen as judge in my own cause.

Both parties having made the same request I disqualified myself.

Not from the whole application: only from that part concerning the election of the Speaker. I had no part in the selection of the candidates. There is no reason why I should be disqualified from hearing that.

The Solicitor General submitted that there really are two separate applications included in the same proceeding – first, the complaint about the election of the Speaker and the second, quite separate, the complaint about the selection of candidates for election as Te Beretitenti. The applications could and should be heard separately. Mr Lambourne further submitted that whatever the decision on the first application it would not affect the decision already made on the second: the second application could be decided before the first. Whatever the decision on the first application Taomati Iuta was Speaker when he presided over the selection of candidates. Even if it were to be found that his election had been invalid, what he had done when acting as Speaker would stand. The Solicitor General based his argument on the analogy of an MP who had sat and voted in Parliament but was later made to vacate his seat for some impropriety: Parliament would not revise the votes in which the MP had taken part: they would stand.

I accepted the Solicitor General’s submission and disqualified myself from hearing the application insofar as it concerns the election of the Speaker. The Solicitor General assured the Court that the Government will provide funds – the Judiciary has none – to bring a judge from overseas to hear it as soon as possible.

I say no more about that first part of the application.

As to the second the Solicitor General submitted that the application was misconceived. The relevant part of section 32 of the Constitution:-

(2) The Maneaba shall after the election of the Speaker nominate, from among members of the Maneaba, not less than three nor more than four candidates for election as Beretitenti, and no other person may be a candidate.

Section 38 of the Constitution:-

(1) The Chief Justice shall have superintendence over elections to the office of Beretitenti, which elections shall be conducted by the Electoral Commission.

(2) Any question which may arise as to whether –

• (a) any provision of this Constitution or any law relating to the election of a Beretitenti under section 32 of this Constitution has been complied with; or
  
• (b) any person has been validly elected under that section,
  

shall be referred to and determined by the Chief Justice whose decision shall not be questioned in any court.

The Solicitor General argued that in Section 38(2) the Chief Justice is not sitting as a judge of the High Court but is given the administrative task personally of deciding the matter: whatever decision he or she makes is final. The words "whose decision shall not be questioned in any court" are direct, unambiguous.

To the contrary Ms Taoaba pointed to section 137:-

No provision of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions under this Constitution shall be construed as precluding a court of law from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or any other law or should not perform those functions.

Whatever the significance of section 137 may be, it does not affect section 38. Section 38 does not provide "that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions under this Constitution".

The reason for S.38(2) is obvious. The Chief Justice personally is given the administrative task of making a final decision on any question arising during an election of Te Beretitenti. It must be assumed that the drafters of the Constitution realized that the Chief Justice was likely to be acquainted with those involved in the process. Yet the Constitution gives the decision to the Chief Justice, to no one else and it is a gift which the Chief Justice cannot refuse. He or she personally has the responsibility and can delegate it to no one else.

The process, as I have called it, begins with the selection of candidates. It is set out in Part II – Nominations – of the Election of Beretitenti Act.

After further argument I came to the conclusion that the second part of Dr Tong’s application concerning the selection of candidates is misconceived: this is not a justiciable question but one for the Chief Justice to decide personally. As required by section 38(2) I should make the decision myself but not sitting as a judge of the Court. The reason is obvious. The present situation is a good example why. So that an election may not be held up by legal proceedings which of necessity take some time, the administrative responsibility is given to an individual who may make a quick and binding decision.

The following are minutes of Order:-

1. The two parts of the application – the first concerning the election of the Speaker, the second concerning the selection of candidates to stand for election as Beretitenti and seeking a stay of the election of the Beretitenti – are to be separated, to be considered separately.
   
2. Having disqualified myself from hearing the first part, that part of the application adjourned to a date to be fixed for hearing by another judge.
   
3. Second part of the application dismissed.
   

I shall hear counsel as to the final form of the Orders.

Dated the 16th day of October 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice