IN THE HIGH COURT OF KIRIBATI 2020

CIVIL CASE NO. 56 OF 2020

IN THE MATTER OF SECTION 88(6) OF THE CONSTITUTION
AND
IN THE MATTER OF AN APPLICATION FOR THE INTERPRETATION OF 
SECTION 32(2) OF THE CONSTITUTION

TETIRO MAATE SEMILOTA
ATTORNEY-GENERAL
APPLICANT

Before:	The Hon Chief Justice Sir John Muria

10 June 2020

Mr Monoo Mweretaka for Plaintiff
Mr George Mackenzie for Speaker 

JUDGMENT

Muria, CJ:	By an Originating Summons filed on 28 May 2020, the 
Attorney-General has sought determinations of the following questions, namely:

1.	Is it constitutional for the Speaker of the Maneaba ni Maungatabu to accept only two candidates for the election of the Beretitenti, which is less than 3 candidates as required by section 32(2) of the Constitution.

2.	Is it constitutional for the Speaker of the Maneaba ni Maungatabu not to hear the agreement of the Parties in regards to their further nomination for the election of the Beretitenti so as to comply with section 32(2) of the Constitution.

2.	The application is said to be brought under section 88(6) of the Constitution, although not so stated in the Originating Summons.  
Mr Mweretaka’s submission clearly confirms that the application is brought under that provision.

3.	The Speaker is not made a party in this case.  However, as the application has arisen out of the Speaker’s decision on the application of section 32(2) of the Constitution, the Court felt that it would be right and proper that the Speaker be given an opportunity to be heard, if she so wishes, in the matter.  The Court, therefore, directed at the Direction Hearing on 2 June 2020 that the Speaker be accorded the opportunity to be heard and that papers be served on her.  Consequently Mr Mackenzie now appears for the Speaker.

Brief background

4.	Following her election as the Speaker of the Maneaba ni Maungatabu on 22 May 2020, the Speaker presided over the sitting of the Maneaba ni Maungatabu for the purpose of calling for nominations of candidates for the election of a Beretitenti of Kiribati pursuant to section 32(2) of the Constitution.  Immediately after calling for the nominations of candidates, the Member for Tamana, Mr Tekeua Tarati, for the Tobwan Kiribati Party (TKP) nominated 
Taneti Maamau as the Party’s candidate and Mrs Tessie Lambourne, Member for Abemama and Chairperson for the Boutokan Kiribati Moa Party (BKMP) nominated Banuera Berina.

5.	Since there are only two political party groupings in the House, the two nominees were the only candidates chosen.  The Speaker, obviously being mindful of section 32(2) of the Constitution, called for additional nominations so as to meet “the required number of nominations for candidates for the Beretitenti ….. the number cannot be less than 3 nor more than 4, so we still waiting”.  (Hansard Report, Friday 22nd May 2020).  No further nomination had been made.

6.	After a long silence from both political parties, the Speaker re-iterated that the number of candidates must be 3 nor more than 4 as required by law.  She then adjourned the House for 10 minutes’ break to enable the Members of the House to consider further nominations.

7.	Parliament resumed after 15 minutes when the Speaker again called for further nominations.  The Member for Tamana and Chairman of Tobwan Kiribati Party, Mr Tarati asked the Speaker to make a ruling that if Tobwan Kiribati Party nominated another candidate, then the other party Boutokan Kiribati Moa must also submit their additional candidate.  The basis for the request was that if Tobwan Kiribati Party made another nomination, that would satisfy the requirement of section 32(2) of three candidates and there was no assurance that Boutokan Kiribati Moa would field in another candidate since the minimum requirement of three candidates would have already been satisfied.

8.	There was still no further nominations from the Members.  The Speaker then indicated that if there were no further nominations for the candidates, then she would accept the two nominations already made.  After a number of exchanges from the Members and there were indications that the two sides to the House would come to some agreement on the further nominations to satisfy the requirement on the number of candidates.  The Members requested a further adjournment of the House.  The Speaker then adjourned the House for five minutes.

9.	The House resumed again after a five minutes’ break.  When the House resumed, the Chairman of Tobwan Kiribati Party, the Member for Tamana, said that they (Tobwan Kiribati Party) were ready to present their second nomination.  However, the Chairman of Tobwan Kiribati Party again requested the Speaker to rule that if Tobwan Kiribati Party were to present its second candidate, the other side of the House must also present their second candidate as well.

10.	The Member for Abemama, Mrs Lambourne then indicated that she managed to have discussion with the Chairman of Tobwan Kiribati Party and that they had come up with an agreement.  What was agreed on was not mentioned, although the Member for Abemama said that they were ready to present it.  There was no further nomination indicated on the part of Boutokan Kiribati Moa.

11.	Having heard the Members on both sides of the House, the Speaker was of the view that no agreement had been reached between the two sides of the House to satisfy the requirement of “not less than three nor more than four” candidates.  She further stated that she would not force the Members on both sides of the House to satisfy the required number of candidates.  She stated that, in her view, it is an important duty of the House to conclude the selection of the candidates and to let the people know who the candidates were for their Beretitenti for the next four years.  The Speaker then declared that the two candidates nominated for election as Beretitenti were Hon Taneti Maamau from Tobwan Kiribati party and Hon Banuera Berina from Boutokan Kiribati Moa Party.

The Court’s power under section 88(6), Constitution

12.	Before I deal with the issues raised for the Court to determine in this case, I feel that I should briefly consider what I perceive to be the proper application of section 88(6) of the Constitution.  In this regard, I think it is necessary to set out section 88.  That section states as follows:

“88. (1) Subject to the provisions of this Constitution, if any person alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are being or are likely to be affected by such contravention, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for a declaration and for relief under this section. 

(2) 	The High Court shall have jurisdiction, in any application made by any person under the preceding subsection or in any other proceedings lawfully brought before the Court, to determine whether any provision of this Constitution (other than Chapter II) has been contravened and to make a declaration accordingly: 

Provided that the High Court shall not make a declaration in pursuance of the jurisdiction conferred by this subsection unless it is satisfied that the interests of the person by whom the application under the preceding subsection is made or, in the case of other proceedings before the Court, a party to those proceedings, are being or are likely to be affected. 

(3) 	Where the High Court makes a declaration under the preceding subsection that any provision of this Constitution has been contravened and the person by whom the application under subsection (1) of this section was made or, in the case of other proceedings before the Court, the party in those proceedings in respect of whom the declaration is made, seeks relief, the High Court may grant to that person such remedy, being a remedy available against any person in any proceedings in the High Court under any law in force in Kiribati, as the Court considers appropriate. 

  (4) 	Nothing in the foregoing provisions of this section shall confer jurisdiction on the High Court to hear or determine any such question as is referred to in section 60 or 117 of this Constitution otherwise than upon an application made in accordance with that section. 

  (5) 	The High Court shall have jurisdiction to make a declaration as to whether any Bill referred to it by the Beretitenti under section 66 (5) of this Constitution, if assented to, would be inconsistent with this Constitution. 

 (6) 	Subject to the provisions of this Constitution, the High Court shall have original jurisdiction to hear and determine any question as to the interpretation of this Constitution: 
     
Provided that the following authorities only are entitled to make application to the High Court under this subsection— 

	(a) 	the Beretitenti, acting in accordance with the advice of the 			Cabinet; 
	(b) 	the Attorney‑General; and 
	(c) 	the Speaker”. 
[Underlinings added].

13.	Section 88(6) is crystal clear, plain and unambiguous.  Any reading of that provision and the words used therein in their “plain and ordinary” meaning (to use Counsel for the applicant’s words) would immediately alert the applicant that to come to this Court seeking a declaration under subsection (6) is wrong.  I need not delve into this point at all since subsection (6) of section 88 only mandate this Court to hear and determine a “question as to the interpretation” of the Constitution.  Seeking a declaratory order from the Court is the province of section 88(1), (2), (3) and (5) as shown above.

14.	What appears to be an application seeking a determination of a question as to “the interpretation” of section 32(2) of the Constitution is, in reality, seeking declarations as to the constitutionality of the Speaker’s decision.  That was clearly borne out in the submissions of Counsel for the applicant and declarations that are sought from the Court in paragraph 28 of Counsel’s submission which prayed for the following:
“28.	Based on the above, the Attorney-General prays to this court for the following declaration that:

(i)	Section 32(2) of the Constitution is very precise and clear and therefore should be given its plain and ordinary meaning or even its purposive meaning as both have the same meaning which is that there must be not less than 3 nor more than 4 candidates for the election of the Beretitenti; and

(ii)	it is unconstitutional for the Speaker of the Maneaba ni Maungatabu to accept only two candidates for the election of the Beretitenti, which is less than 3 candidates as required by section 32(2) of the Constitution, and

(iii)	it is unconstitutional for the Speaker of the Maneaba ni Maungatabu not to hear the agreement of the Parties in regards to their further nomination for the election of the Beretitenti so as to comply with section 32(2) of the Constitution”.

15.	I need also to point out, that at the Direction Hearing on 2 June 2020, Counsel expressly confirmed in Court that the applicant was not challenging the decision of the Speaker and that the applicant was only seeking an interpretation of section 32(2) of the Constitution.  That, of course, led the Court to simply direct that the Speaker be served with the papers in this case, without the need to have her being made a party to the case, and be given an opportunity to be heard, if she so wishes.

16.	Had it been made clear to the Court on 2 June 2020 that the applicant was seeking declaratory remedies against the Speaker, the Court very properly could have ordered that this application be struck out or amended and that the applicant be ordered to come properly before the Court and to have the Speaker made a party.  I do not think Counsel deliberately display a lack of candour in this case.  Perhaps this is more a case of slip than anything else.

17.	This is not the first time that this Court had to frown upon a party for using section 88(6) to seek declaration from the Court.  In 
Speaker –v- Attorney-General [1987] KIHC 1; [1988] LRC (Const.) 1 
(8 July 1987) the Court pointed out that actions for declarations can only be brought under subsections (1), (2) and (5), not under subsection (6) of section 88 of the Constitution.

18.	Coming to this court on the wrong foot would have been enough to justify this Court striking out the applicant’s application in this case.  However, I will ignore the declaratory orders sought in Counsel’s submissions and proceed on the basis of the two questions sought in the Originating Summons.  I feel that the issue of the proper interpretation and application of section 32(2) is too important to be left unattended to in the face of seemingly non-compliance with section 88(6) of the Constitution.  To that I shall now turn.

Section 32(2) of the Constitution

19.	Having dealt with the Court’s power under subsection 6 of Section 88, I now turn to the issues raised in this application on the interpretation of section 32(2) of the Constitution.  Section 32 states as follows:

“32. (1) Nomination for and an election to the office of te Beretitenti shall be held in such manner as is prescribed by this section and, subject thereto, by or under law—

(a) 	as soon as practicable after the first sitting of the Maneaba ni Maungatabu following a general election and before proceeding on any Bill; 
	(b) 	in the circumstances specified in section 35 (4) of this Constitution. 

           (2) 	The Maneaba shall after the election of the Speaker nominate, from among members of the Maneaba, not less than 3 nor more than 4 candidates for election as Beretitenti, and no other person may be a candidate”.  (Underlining added).

20.	Mr Mweretaka of Counsel for the Applicant submitted that subsection (2) is mandatory in that the number of candidates for the election of a Beretitenti must be “not less than three nor more than four” candidates.  Counsel urged that the words “shall be not less than three nor more than four candidates” must be given their “plain and ordinary” meanings which, Counsel submitted, the Speaker had not complied with.  The main thrust of Mr Mweretaka’s argument is that by accepting only two candidates for the election of a Beretitenti, the Speaker did not comply with the requirements under section 32(2) of the Constitution.  I agree with Counsel that the words referred to must be given their plain and ordinary meanings.  But the situation on 22 May 2020 was far from being plain and ordinary.  Hence the words “the Maneaba shall nominate not less than three nor more than four candidates” would have to be applied, not literally but in the context of what happened on 22 May 2020 in the House.

21.	Mr Mackenzie of Counsel for the Speaker, on the other hand, accepted that section 32(2) provides for the requirement of nominating “not less than three nor more than four” candidates.  Counsel, however, submitted that in the context of the present proceedings subsection (2) should be given a directory interpretation rather than mandatory.  The reason being, that the nomination was done by the parties rather than by the Maneaba as is envisaged under section 32(2).

22.	Clearly, section 32(2) contemplates that the nomination should be done by the “Maneaba”, in which case one can clearly see the reason why the subsection puts a limit to the number of candidates.  There are 45 members of the House, 44 of which were present at the first sitting of the House on 22 May 2020.  From that number, section 32(2) required the “Maneaba” to nominate “not less than three nor more than four” candidates.

23.	Unfortunately, in this case, the nomination of the candidates was not done by the “Maneaba” but by the two political groupings in the Maneaba.  The numerical groupings determined the number of candidates rather than the numerical membership of the Maneaba.  It was therefore a foregone conclusion that the two political parties would each nominate their preferred candidate, Taneti Maamau for Tobwan Kiribati Party and Banuera Berina for the Boutokan Kiribati Moa Party.  It should therefore be obvious that the “plain and ordinary literal” application of section 32(2) as contended for by Mr Mweretaka would present a practical difficulty.

24.	In the circumstances of this case, there were three possibilities that might be said, could have been done to fulfil the ordinary literal application of section 32(2).  First, the two political groupings should be disregarded so that the “Maneaba” could nominate, without any difficulty, the required number of candidates from among its 44 members present.  Secondly, to ensure that there were more than two political parties in the House, so that the minimum number of candidates is achieved.  Third, the two political parties in the House, in fairness to each other, should have two candidates each and thereby also achieving the maximum number of four candidates required under section 32(2).  However, there is no power vested in any body, including the Speaker, to force any of the three scenarios to be done.  The Speaker’s obligation is simply to call for the nominations and the House and Members to do what was properly required of them.

25.	The situation presented to the Speaker was that the Maneaba had only the two candidates nominated by the two political parties in the House.  There was no possibility at all that the “Maneaba” would nominate any other candidates because Members had already grouped and polarized into two political camps.  There was clear evidence from the Hansard Report that neither party was fielding another candidate easily for its side. Although the Tobwan Kiribati Party indicated their willingness to put in their additional candidate on the condition that the Boutokaan Kiribati Moa Party also fielded in their additional candidate.  Boutokaan Kiribati Moa party had not given any indication that it was going to nominate its additional candidate, although their Chairperson had simply indicated that they would “present” what they had agreed with the Chairman of Tobwan Kiribati Party.  That non-commitment by the Boutokaan Kiribati Moa Party led the Chairman of Tobwan Kiribati Party to insist on the Speaker to rule that if Tobwan Kiribati Party nominated another candidate, the Boutokaan Kiribati Moa Party should also put in their additional candidate.  Very properly, the Speaker declined to make such ruling to force a political party to nominate an additional candidate.

26.	Assuming, for argument’s sake, that the “proposed agreement” alluded  to by the Chairperson of Boutokaan Kiribati Moa Party was for the two parties in the House to nominate one more candidate each, in order to satisfy the numerical balance of two candidates for each party, and to achieve the maximum requirement of four candidates as required under section 32(2), there was no guarantee that both or one of the additional candidates would not opt out of the race in order to secure maximum benefit for their parties.  If and when that happens, then we have a situation when we have ‘dummy candidates’ (to use Mr Mackenzie’s words) fielded just to satisfy the letters of section 32(2) but with no real intention of staying in the presidential race.  That would also amount to a sham and one that cannot have been intended under section 32(2).

27.	Then there is the suggestion by Counsel for the applicant that the two parties had a ‘proposed agreement’ reached after the second break and that the Speaker had failed to consider the parties’ proposed agreement.  The evidence before the Court (from the Hansard Report) does not show that any such proposed agreement (if any) was put before the House at all.  What the evidence shows was that after the Member for Abemama and Chairperson of Boutokaan Kiribati Moa Party indicated that an agreement was reached, she resumed her seat at about 12:06:48 pm according to the time “Log Notes” kept of the Maneaba Proceedings.  The Speaker waited for about a minute and as no “proposed agreement” was put to the House, at 
12:07:22 pm, the Speaker made her Ruling accepting the two candidates for election as Beretitenti.  

28.	The translated version of the Speaker’s ruling states as follows:

	“It appears that there is no agreement achieved by both sides, now the Chair will deliver its ruling.  Given that I cannot force the law against you and to direct you to satisfy the requirement which is not less than 3 or more than 4.  And I believe that this is the important part of our duties, to wrap up this issue so that we could disclose the names for the people of Kiribati to hear, as to who will run for the next Presidency Election for the next four years term.  And I believe that if we are disputing over it, from my left side, while on my right side their demand is that if they present their nomination I will force the other side to present their nomination too.  I think that is not practical in our laws.  I, as a Speaker, have no authority to force you to comply with the law.

	Therefore, my ruling at this time, I declare to the people of Kiribati and accept the two candidates for the election of te Beretitenti from both Parties.  From Tobwaan Kiribati Party 
Hon Taneti Maamau and from Boutokaan Kiribati Moa Party, 
Hon Banuera Berina”.

29.	Very properly, as recognized by the Speaker, the people of Kiribati have a right to have a Beretitenti elected and in turn to have a Government in place, something that has been missing since the House dissolved in November 2019, some seven months ago.  It was therefore of paramount importance to resolve the issue over the nomination of the candidates for the election of Beretitenti.  That the Speaker had done and her decision was clearly supported by section 5(4) of the Election of Beretitenti Act (as amended by Act No. 11 of 2002) which is a law also to be applied as envisaged under section 32(1) of the Constitution.

30.	The suggestion that the Speaker “failed to consider the proposed agreement” of the parties finds no support from what actually transpired in the House.  That suggestion is rejected.

31.	It is not without significance that section 32(2) speaks of “the Maneaba” shall nominate the candidates from among members of the Maneaba.  There is no reference to the party politics in that provision.  This, in my view, reflects the historical genesis of the manner in which the Beretitenti is to be chosen as envisaged when the provision was adopted in 1979.  As Mr Mackenzie pointed out that there were no political parties then and the Constitutional Convention 1977 preferred “not less than three nor more than four” candidates to be nominated by the Maneaba for election as Beretitenti.  The political developments have moved on in Kiribati since 1979 and the political reality is that political parties or groupings have now emerged and predominantly featured in the House.  This, in my view, is all the more reason why section 32(2) should be given a wider contextual interpretation, as that applied by the Speaker in the circumstances of the present case.

32.	There is a further reason, in my view, which justifies giving section 32(2) a generous interpretation.  The word “Maneaba” is not defined as such in the Constitution.  However section 52 of the Constitution states that the “Maneaba ni Maungatabu” is the Legislature for Kiribati.  As such the ‘Maneaba’ referred to in section 32(2) is the legislature of Kiribati comprising of all the Members of the Maneaba, whether they belong to political parties or not.  In the present case, the Members of the Maneaba, expressing their collective wishes through their two political groupings in the Maneaba, have chosen two candidates for election as Beretitenti.

33.	What was the Speaker to do in the circumstances of the present case?  The Speaker must accept that the Members of the ‘Maneaba’ have nominated their chosen candidates and must declare them to be so.  The Speaker has no power to reject the selection made by the Maneaba under section 32(2).  For the ‘Maneaba shall nominate’ and the “Speaker shall declare”: Section 5 of the Election of Beretitenti Act (as Amended) (Cap 29A).

34.	In such a situation as obtained on 22 May 2020, how should the Speaker apply section 32(2) of the Constitution?  As I have already stated, in the circumstances as presented to the Speaker, it would not be practicable to apply the “ordinary literal” interpretation of section 32(2).  I would, therefore, incline to agree with Mr Mackenzie that the only sensible and workable interpretation to apply to section 32(2) in circumstances of this case would be a contextual one in order to achieve the purpose or objective of section 32 of the Constitution.  That purpose or objective is to ensure that the processes of nomination and election to highest Office in the land, the Office of Te Beretitenti, are carried out with certainty.

35.	This purposive approach to constitutional interpretation has been applied in many cases.  In Minister of Home Affairs –v- Fisher [1980] AC 319, it was there stated that the Courts should adopt a purposive interpretation of a constitution.  The Court of Appeal in Solomon Islands in 
Prime Minister –v- Governor-General [1999] SBCA 6; CAC No. 14 of 1998 
(1 September 1999) applied the case of Minister of Home Affairs –v- Fisher and went on to state:

“To the extent to which the provisions of the Constitution, as a result of the generality of those provisions, fail to deal specifically with a particular question, it is the task of this Court to determine the constitutional meaning by reference to the language of the Constitution, considered in the light of the relevant context and the objects of the Constitution itself”.

36.	Construing a constitutional provision having regard to the context in which the litigation is taking place, had also been reiterated in the Fijian case of Yabaki –v- President of the Republic of Fiji [2001] FJHC 116.  The Court in that case, clearly recognized also the need to ensure that the underlying purpose of such provision is so central that the Court must give effect to it.

37.	The two cases cited by Counsel for the applicant, Attorney-General of Fiji –v- DPP [1983] 2 AC 672 and Tokataake –v- Attorney-General [2003] 
KICA 1, also recognized the need to give generous interpretation to constitutional provisions.  Of course, where the plain or ordinary meaning of the words are obviously applicable, the courts must apply them.  However, where the plain or ordinary meaning of the words used is not practically possible to apply, the Courts must give flexible and generous interpretation to the constitutional provision so as to embrace the purpose or, what is sometimes referred to as, the ‘animating spirit’ of the constitution.

38.	Under the prevailing circumstances before her on 22 May 2020, the Speaker’s decision to declare the two candidates, Taneti Maamau and Banuera Berina, nominated by the Maneaba for election as Beretitenti was, in my view, constitutionally proper and acceptable.  By virtue of section 5(4) of the Election of Beretitenti Act (as Amended) (Cap 29A) the Speaker’s decision is final.

39.	It may well be that the time has come after 41 years of nationhood and political maturity that the process of selection of the incumbent of such a high office in the land be given consideration so as to ensure certainty.   However, until that is done, this court is tasked with a constitutional obligation to accord a workable application to section 32(2) of the Constitution, so as to achieve the purpose for which it was enacted.  In this case that workable solution is to accord section 32(2) a generous interpretation and application in the context of the events on 22 May 2020.

40.	For the reasons set out in this judgment I answer the questions posed in the Originating Summons as follows:

1.	Q.  Is it constitutional for the Speaker of the Maneaba ni 	Maungatabu to accept only two candidates for the 	election 	of the Beretitenti, which is less than 3 candidates as 	required by section 32(2) of the Constitution?

A.	Yes, in the circumstances of this case as obtained on 
22 May 2020.

2. Q.	Is it constitutional for the Speaker of the Maneaba ni Maungatabu not to hear the agreement of the Parties in regards to their further nomination for the election of the Beretitenti so as to comply with section 32(2) of the Constitution?

A.	Unnecessary to answer, since no agreement had been presented to the Maneaba on 22 May 2020.

41.	There will be no order as to costs.

42.	It remains only for me to thank both Counsel for their helpful submissions in this case.

Dated the 17th day of June 2020

SIR JOHN MURIA
Chief Justice