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Detenamo v Secretary for Justice [2007] NRSC 3; Civil Action No 7 of 2006 (26 June 2007)

IN THE SUPREME COURT OF NAURU

Civil Action No. 7/2006

BETWEEN:

VINSON DETENAMO, DEROG GIOURA,
KINZA CLODUMAR & ORS
PLAINTIFFS

AND:

SECRETARY FOR JUSTICE
DEFENDANT

Mr. Pres Nimes for the Plaintiffs
Mr. Robert Kaierua for the Defendant

Three separate applications for relief. The relief sought by all three applicants is best expressed in the application of Kinza Clodumar:-

"The relief sought is an Order of Certiorari to remove into this Honorable Court and quash the order of the Secretary for Finance, ---- directing outstanding salaries, work benefits and ancillary interests already vested in the Plaintiffs at the time of making the order, to be transferred carte blanch to the Bank of Nauru without proper authorization for payment by the said Bank."

A situation has arisen in which considerations of financial necessity have parted from observance of the Rule of Law.

In the last five or more years Nauru has fallen on hard financial times. The Government does not have enough money to carry out all its functions, not enough to pay public servants and others their salaries.

The named applicants have been Members of Parliament. Vinson Detenamo, Derog Gioura and Kinza Clodumar have each sworn affidavits. The affidavits are in similar form. I set out the first five paragraphs of the affidavit of Vinson Detenamo:-

"1. That I served in the Parliament of Nauru for the Constituency of Buada between 1983 and 2004.

2. That by the time I lost my office in October 2004, there were outstanding salaries that were still to be paid to me and others by Treasury.
   
3. That the period in which the relevant salaries were affected had been from November 2003 and to July 2004.
   
4. That the outstanding salaries (which) are payable to former members of Parliament as remuneration are provided under the statutory provisions of the Parliamentary Salaries and Allowances Act 1988.
   
5. That on Friday 22nd September the Chief Secretary issued a notice through a Departmental circular informing public servants that all pending salaries of public servants covering the period from 2003 to 2004 are to be transferred to the Bank of Nauru."
   

It is common ground that the Bank of Nauru is not functioning as a bank. It has no money. Cheques drawn on it are not met. [There may be a few small exceptions, so few as to be irrelevant.] Transferring moneys to the Bank of Nauru means that those entitled will not be paid in the foreseeable future.

Attached to the application of Kinza Clodumar is a copy of a news release in the Nauru Bulletin of 4th October 2006. Mr. Kaierua for the Respondent did not question its accuracy.

"Secretary for Finance, Mr. Jonathan Kirby met with NTV on Wednesday 4th October, to clarify details relating the 2003/2004 pending salaries.

As stated by the Secretary, pending salaries have been transferred to the Bank and in the process of opening accounts according to entitlements for each individual public servant.

Reasons to this, is that, the Government could not afford a large sum amount of payments by cash to individuals and found alternative means but to transfer these pending salaries into the bank for the use of paying out loans, bills and other requirements.

One may have access to his/her account through normal procedures, withdrawals are only by cheques.

Process of opening an account for each public servant may take up to two months, before access can be initiated."

The actions of the government, through the Respondent, are tantamount to depriving the applicants (and others) of their lawful entitlements.

Relevant to the three named applicants is the Parliamentary Salaries and Allowances Act 1995. The entitlements of the Speaker, Ministers, Members of Parliament and others are pursuant to Section 11 to "be paid from and charged upon the Treasury fund."

It is not spelt out in the Act because such a basic assumption that it does not need to be spelt out, that the amounts to be paid to each person entitled will be paid in a form which may be immediately realized and used, for example payment in cash, by deposit in a bank account upon which a recipient may draw cash, by cheque which will be met in cash on presentation. Whether the Government had any alternative to the actions announced by the Secretary for Finance, is not for the Court to say. Those are decisions of policy and administration, the responsibility of the Executive not the Judiciary.

However there is a correct way and an incorrect way to go about giving effect to decisions which Government makes. Effect must be given in accordance with Law.

Nauru enjoys a form of parliamentary democracy. The government is not all powerful, able to do what it likes. The government and all citizens are subject to the Constitution and the law, both common and statute law. The government has no legal authority – Mr. Kaierua could point to none – to act in the arbitrary way in which it has.

It seems that most people have accepted what has been done. That does not validate, make it lawful. The Applicants do not accept it. They have come to the court as is the right of all citizens and the court should give them any relief to which they may be entitled.

On 27th October the Registrar made an peremptory Order of Certiorari that should now be confirmed.

The situation could be – and, I suggest, should be – put right by obtaining Parliamentary approval at the earliest time for what has been done. Financial necessity and the Rule of Law will come together again. Until then the government is acting unlawfully.

I shall hear the parties as to the Orders I should make.

THE HON. ROBIN MILLHOUSE QC
CHIEF JUSTICE

26th June 2007