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Teriaki v Kauongo [2009] KIHC 27; Civil Case 113 of 2009 (9 July 2009)

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

HIGH COURT CIVIL CASE 113 OF 2009

BETWEEN:

EREATA TERIAKI
ON HIS OWN BEHALF AND AS MAYOR OF MAIANA ISLAND COUNCIL
PLAINTIFF

AND:

URIAM KAUONGO
TEIMARAWA TEEWA
IONATAN TANIERA
ON THEIR OWN BEHALF AND ON BEHALF OF “TEBAU”
(AN ASSOCIATION OF THE OLD MEN OF MAIANA)
1ST DEFENDANT

AND:

ATTORNEY GENERAL IN RESPECT OF THE
MINISTRY OF INTERNAL AND SOCIAL AFFAIRS
2ND DEFENDANT

For the Plaintiff: Mr Banuera Berina
For the 1st Defendant: Ms Taoing Taoaba
For the 2nd Defendant: Mr David Lambourne, Solicitor General

Date of Hearing: 6 July 2009

JUDGMENT

An unfortunate situation has arisen on Maiana Island concerning the Island Council and “Tebau”, an association of old men.

Problems are political as well as legal. The Court must be careful in coming to decisions not to cross the line between legal questions and those which are the responsibility of the Executive and Legislature.

The facts may be set out briefly, no more than is necessary to decide the issues: not difficult as the outline of the facts is clear.

The plaintiff is the elected Mayor of the Maiana Island Council. The first defendants are members of Tebau, a group of the old men of the island, coming from the various villages. From the unsworn affidavit of Teimarawa Teewa (but adopted on oath as his evidence):-

TE BAU was established as a result of the unrest and disturbances that neither the Council nor the Police Service has failed to overcome. A general meeting was held at the main maneaba and was attended by all the people of Maiana and discussion of ways to resolve these unrest and disturbances were held. It was resolved that a body should be established to regulate and counteract these incidents. A body known as TE WII NI MAIANA was created and the regulators were chosen amongst the old men of each village. Generally speaking all Maiana people are members. This is the hierarchy of this body.

Uriam Kauongo is Tebau ni Maiana.

Tebau may be seen as a group of senior unimane and Uriam as the most senior of all. From his affidavit:-

2. I am .... one of the oldest men of Maiana known as a “batua”.
   
3. To understand the status of old men of Maiana it is best to know that there are two categories of old men in Maiana. The first category is known as “unimwane” and the second category is known as “batua” to which I belong.
   
4. The difference between the two is that within our custom greater respect is paid to the “batua” as compared to that of the “unimwane”.
   

A dispute arose within the Council between the Council Clerk on the one side and the Mayor and the majority of members on the other. Tebau became involved. One thing led to another and finally to the decision by Tebau that the Council should be dissolved, the councillors resign and not be eligible for re-election for four years.

Some but not all councillors have resigned. Ereata Teriaki has resisted the decision. He has come to the court asking for the following declarations:-

1. That TEBAU does not have any power to demand the resignation of duly elected Councillors of Maiana Island Council or to declare the dissolution of Maiana Island Council.
   
2. That the demand of the 1st Defendants for the resignation of the Councillors of Maiana Island Council was unlawful.
   
3. That the resignations of the Councillors who clearly stated in their letters of resignation that they were resigning because they were being forced to do so by the First Respondents were invalid.
   
4. That in the circumstances it was not lawful for a Police Inspector and for an Electoral Officer to encourage the Kauoman Mayor and the Mayor, respectively, to resign so that the problem between TEBAU and the Council may be easily solved.
   
5. That the 1st Defendants were acting in contravention of the Plaintiff’s right of movement as protected by the Constitution when they decide that the Plaintiff and his family must leave Maiana as a penalty for his refusal to resign.
   
6. That the decision of the 1st Defendants requiring the Plaintiff and his family to leave Maiana was unlawful.
   
7. That the 2nd Defendant has a duty to ensure that Maiana Island Council was not unlawfully handicapped from carrying out its functions and duties under the Local Government Act.
   
8. That the 2nd Defendant, as the government Ministry responsible for the administration of the Local Government Act, has a positive duty to protect the Councillors and the Mayor from the threats and intimidations that were being carried out by the 1st Defendants against them.
   
9. That in the circumstances the 2nd Defendant did not act in the lawful discharge of its duty when it allowed the 1st Defendants to demand the resignation of the Councillors without doing anything to stop them apart from saying the 1st Defendants have no power to demand the resignation.
   
10. That in the circumstances the 2nd Defendant did not act in the lawful discharge of its functions in setting up election notices for the vacancies created as a result of the forced resignation of members of the Council without examining the circumstances surrounding the resignations especially when the Councillors who did resign clearly stated in their letters of resignation that they did so because they were forced by the 1st Defendants.
    
11. That the 2nd Defendant has a duty to cause an investigation to be carried out by the Police Service into the possible breaches of the laws of Kiribati that may have been committed by the 1st Defendants.
    
12. That the Plaintiff can claim damages for the wrongful and unlawful acts committed against him by the 1st Defendants.
    

The Court heard the evidence of Ereata Teriaki, Uriam Kauongo and Teimarawa Teewa (who was not cross examined on his unsworn statement).

It appeared clearly from Uriam Kauongo’s evidence that he and Tebau are intransigent. Tebau has made a decision. The Council is dissolved. That is that:-

Everything is up to Ereata: if he is remorseful etc. Tebau has already dissolved Council: decided councillors can’t stand for four years. The ruling of Maiana has already been made: Maiana seems not to follow the rules of Kiribati. Maiana does not recognize the laws of Kiribati. It’s in the hands of the mayor. He must be remorseful and apologize and accept he cannot stand for four years. Would resolve the problem. (Cross examination by the Solicitor General).

Uriam said that the decisions of Tebau ni Maiana are above every law. It has been so since time immemorial.

Section 2 of the Constitution of Kiribati:-

This Constitution is the supreme law of Kiribati and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.

The Local Government Act, enacted by the Maneaba ni Maungatabu provides for the establishment of councils. It provides, sections 9, 10, 11 and 11(a), for the election of councillors, their terms of office and for the removal of a councillor. Section 15 provides for the election of the Mayor.

Island Councils are the creatures of the Local Government Act. The Act is a complete code for their establishment, election of members and termination of office. The Act makes only one acknowledgment of custom (on which the defendants rely to justify their actions): the unimwane in a council area may nominate a special member to the Council.

Section 2(1) in part:-

‘Special Member’ means a member of a council nominated by the Te Botaki ni Unimaane;

‘Te Botaki ni Unimaane’ means an association, group or body of elderly men recognised by the council as representing the people of the island within which the area of authority of such council lies.

Section 8 provides that “every special member shall become a member of the Council”.

Section 12A provides for the cesser of membership of a special member.

Apart from that, custom, in law, has no part in the establishment, election of members etc. of councils. I do not overlook, in coming to that conclusion, paragraph 4 of the Preamble to the Constitution (“we shall continue to cherish and uphold the customs and traditions of Kiribati”) and Section 5 of the Laws of Kiribati Act.

Accordingly, as a matter of law, Tebau has no right or authority to dissolve the council or to oblige the resignation of members. In making the decisions it has, Tebau has acted outside the law.

What relief, if any, then, may the Court give?

The Solicitor General cited the decision of Maxwell CJ in Teitinang v Ariong and Others ((1987) LRCC (Const) 517 especially @ 527 et seq). In his judgment my learned predecessor expressed several opinions with which, after careful consideration, I feel I must respectfully disagree.

First, I can see no reason why, even though Rules of Court have not been made, a successful application for redress for breaches of sections 3 to 16 of the Constitution should not be made. Section 17(5) of the Constitution providing for the making of Rules of Court is permissive not mandatory: there need not be Rules.

Secondly, as time has passed the courts have given provisions for the protection of rights broader, more liberal interpretation. This is so particularly in the last 20 years since Maxwell CJ expressed his opinion. Courts should be prepared to make declarations protecting rights unless there is most persuasive reason why not.

Thirdly, for the same reason, I cannot see why, in this day and age, the protection of human rights should not extend to protection of a right by one citizen against another.

[I refer to the interesting discussion on the subject by Associate Professor Jennifer Corrin of the University of Queensland in her research paper No. 08-15 2008 “From Horizontal and Vertical to Lateral: Extending the Effect of Human Rights in Post colonial Legal Systems of the South Pacific” to which the Solicitor General referred me. I also refer to the decision of the Court of Appeal in the Solomon Islands, Loumia v Director of Public Prosecutions (1985-1986 LILR 158) to which Mr Berina referred me.]

However I do, subject to future argument, as a matter of law, respectfully agree with the learned Chief Justice in his saying at 529-530:-

“The defendants, by preventing the plaintiff’s children from attending the primary school in Buota village and by denying the plaintiff access to his land and babai pits, and access to the bridge linking Buota village and Tanaea, have committed an actionable wrong, that is, the Tort of unlawful interference with the exercise of his legal rights ----- Neither the defendants nor the old men of the village have any legal right to prevent the plaintiff and his family from enjoying their legal rights in the community”.

I shall make a declaration but in case I were to cross the line I mentioned at the beginning I should not make the declarations for which the plaintiff has asked. Instead I should merely declare that in purporting to dissolve the Maiana Island Council and in obliging council members to resign and not to stand for re-election for four years, the defendants have not acted in accordance with law: their decisions have no effect in law.

Declaration accordingly.

Dated the 9th day of July 2009

THE HON ROBIN MILLHOUSE QC
Chief Justice