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Latasi v Attorney General [2015] TVHC 10; HC Civil Case 2.14 (23 March 2015)

IN THE HIGH COURT OF TUVALU
At Funafuti
HC. Civil. Case no. 2/14

Civil Jurisdiction

Between:

Hon. Kamuta Latasi
Hon. Apisai Ielemia
Hon. Willy Telavi
Hon. Kausea Natano
Hon. Pelenike Tekinene
Applicants

And:

Attorney General
1st Respondent

And:

Hon. Enele Sosene Sopoaga
Hon. Vete P Sakaio
Hon. Maatia Toafa
Hon. Faauoa Maani
Hon. Namoliki Sualiki
Hon. Taukelina Finikaso
Hon. Elisala Piita
Hon. Monise Laafai
2nd Respondents

BEFORE THE JUDGE

Ms. Filiga Taukiei for the Appllicants.
Ms. Laigane Italeli Maina for the Respondents.

Application for Declaration

A group of members of Parliament- are the Applicants. The first Respondent is the Attorney General. The second Respondents are group of another eight members of Parliament. The relief sought:

----declare that:

1. The appointment of the Acting Minister of Health is unconstitutional and therefore void.
   
2. In the event that (ii) above is declare, for the Court to make an order for the public fund used on this appointment should be refunded by the members of the cabinet consist of (there follow the names of the eight second Respondents)....
   

The parties have agreed facts:

1. That Hon. Leneuoti Maatusi MP from the Nui constituency is currently the Acting Minister for Health.."
   
2. Hon. Leneuoti Maatusi was appointed as Acting Minister of Education, Youth, Sports and Health Services on the 6th of January 2014.
   
3. The Appointment of Hon. Leneuoti Maatusi was made under section 69(1)(b)(ii).
   
4. During the last Parliament session on the 3rd – 7th of March, the Hon. Leneuoti Maatusi sat as the Acting Minister of Health and is currently carrying that portfolio.
   

In short, the Applicants ask whether the continuing, apparently indefinite appointment of the Hon. Leneuoti Maatusi as an "acting Minister" contravenes s. 62(3) of the Constitution:

(3) "The number of offices of Minister (other than the office of Prime Minister) shall not exceed one half of the total membership of Parliament."

There were already seven Ministers (beside the Prime Minister) before the appointment of the Hon. Leneuoti Maatusi. I pause to say that because a Minister is described as "acting" does not make him any the less a Minister carrying out duties in the same way as any other Minister.

Before I answer the question whether the appointment is a breach of the Constitution, there are four matters I canvass. I regret that I do not have the time to do other when mention them briefly.

First, the application seems to be a dispute between two groups of parliamentarians. The courts are most unwilling to interfere in internal parliamentary disputes. It is for Parliament to regulate its own procedures and make its own decisions without interference from the courts,

Second, it is inappropriate for individual members of Cabinet, as the second group of Respondents are, to be named as Respondents. The Constitution s.74:

"The Cabinet is collectively responsible to Parliament for the performance of the executive functions of the Government."

Third, the doctrine of immunity from process: is to the effect that Ministers are immune from proceedings, criminal or civil, for anything done by them in the course of their Ministerial duties.

Fourth, there is to be a general election next Thursday. The present Government is a "caretaker Government" pursuant to s.71 of the Constitution. Sub-s. (7) provides that "a caretaker government" goes out of office when a new election to the office of Prime Minister is completed." I expect that will be within the next few weeks. None of the Ministers whether described as temporary or otherwise will be Ministers after the Prime Minister is elected.

These proceedings, therefore, are verging on the futile.

I do not have time to canvass these questions in depth: only to mention them. I hope I have not set them out too widely or inaccurately.

Fortunately there is no need to come to conclusions on them in giving a decision on the main point.

I now answer the question whether the continuing appointment of the Hon. Leneuoti Maatusi is contrary to the Constitution.

I take judicial notice of a number of facts and also accept as factually accurate the helpful written submission and the ladies' oral submissions as well as the agreed facts.

The obvious interpretation of s.69 (1)(b) of the Constitution is that there may be an acting Minister only in two circumstances – when a Minister is out of the country or if for some other reason, such as sickness he cannot carry out his duties.

The Respondents say the Minister of Health was overworked and needed help. There is no suggestion that he couldn't do the work, only that he had too much of it. Perhaps, but that does not justify the appointment of another Minister to assist him. That is not be an acceptable interpretation of the provision. Apart from the appointment of an acting Minister, other ways may be found, such as re-allocating portfolios between Ministers to lighten the burden on some and increase it on others.

"Temporarily" is a word of inexact meaning. How long is something "temporary" before it becomes permanent? That depends on one's interpretation: one person's interpretation may not be another's.Tot homines, quot sententiae!

A line may be drawn between a something being temporary and it having gone on for so long that no sensible person, could argue that it is still temporary. No need to work out where the line is to do that. Easy to tell which side of the line the something is.

All I need say is that Leneuoti Maatusi's appointment has long crossed the line and become, to all intents and purposes, permanent. The gentleman's appointment is against both the spirit and the letter of the Constitution.

As well, the Hon. Leneuoti Maatusi's appointment is a breach of s.63(2) is it has brought the number of Ministers to 8.

In view of what I have said about procedural and other things, the four points, I do not propose to make a formal declaration pursuant to s. 5 of the Constitution nor do, I propose to make any other order including an order for costs.

Date 23rd day of March 2015.

_____________________
Hon. Robin Millhouse QC
JUDGE OF THE HIGH COURT OF TUVALU