Kiribati 1979 Constitution (reviewed 2013) - Page 6 of 12

Table of Contents

CHAPTER VI. THE JUDICIARY

Part I. The High Court

80. Establishment of High Court

There shall be a High Court of Kiribati which shall be a superior court of record with such jurisdiction and powers as may be prescribed by this Constitution or by any law in force in Kiribati.
The judges of the High Court shall be the Chief Justice and such number of other judges, if any, as may be prescribed.

81. Appointment of judges of High Court

The Chief Justice shall be appointed by the Beretitenti, acting in accordance with the advice of the Cabinet tendered after consultation with the Public Service Commission.
The other judges of the High Court, if any, shall be appointed by the Beretitenti, acting in accordance with the advice of the Chief Justice sitting with the Public Service Commission.
A person shall not be qualified to be appointed as Chief Justice or other judge of the High Court unless he has held office as a judge in any country or has been qualified for not less than five years to practise as a barrister or solicitor.

82. Oath of judges

Every judge of the High Court shall, before entering upon the duties of his office, take and subscribe before the Beretitenti an oath in the form set out in Schedule 1 to this Constitution.

83. Tenure of office of judges of High Court

Subject to the provisions of this section, the office of a judge of the High Court shall become vacant upon the expiration of the period of his appointment to that office.
A judge of the High Court may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be removed except in accordance with the provisions of the next following subsection.
A judge of the High Court may be removed from office by the Beretitenti in pursuance of a resolution of the Maneaba ni Maungatabu if the question of the removal of that judge has been referred to a Tribunal appointed under the next following subsection and the Tribunal has advised the Maneaba that he ought to be removed from office for inability as aforesaid or for misbehaviour.
If the Beretitenti considers, or the Maneaba resolves, that the question of removing a judge of the High Court from office for inability as aforesaid or for misbehaviour ought to be investigated, then—
1. the Beretitenti shall appoint a Tribunal which shall consist of a Chairman and not less than two other members, one of whom holds or has held judicial office; and
2. the Tribunal shall inquire into the matter and report on the facts thereof to the Maneaba and advise the Maneaba whether that judge should be removed under this section.
If the question of removing a judge of the High Court from office has been referred to a Tribunal under the preceding subsection, the Beretitenti may suspend that judge from performing the functions of his office, and any such suspension may at any time be revoked by the Beretitenti and shall in any case cease to have effect if the Tribunal advises the Maneaba that that judge should not be removed from office.

84. Commissioners of High Court

Whenever he is satisfied that no or insufficient judges of the High Court are available to attend to the business of the High Court, the Beretitenti, acting in accordance with the advice of the Chief Justice sitting with the Public Service Commission, may appoint a person who is qualified to practise as a barrister or solicitor in Kiribati to perform—
1. all or any of the functions of a judge of the High Court either generally or in respect of any particular case or class of cases; or
2. such functions of a judge of the High Court as it shall appear to the person appointed under this section require to be performed without delay,
subject to such limitations and conditions, if any, as may be specified in the instrument of appointment.
A person appointed under this section shall be called a Commissioner of the High Court, and all things done by him in accordance with the terms of his appointment shall have the same validity and effect as if they had been done by a judge of the High Court and in respect thereof he shall have the same powers and enjoy the same immunities as if he had been a judge of the High Court.

85. Oath of Commissioners

Every Commissioner of the High Court shall, before entering upon the duties of his office, take and subscribe before the Beretitenti an oath in the form set out in Schedule 1 to this Constitution.

86. Judge may sit after appointment has terminated

A judge of the High Court whose appointment has terminated otherwise than by reason of his removal from office may sit as a judge of that Court for the purpose of giving judgment or otherwise in relation to any proceedings commenced before him while his appointment was subsisting.

87. Seal of High Court

The High Court shall have, and use as occasion requires, a seal bearing on it the words “The High Court of Kiribati” and such device as the Maneaba ni Maungatabu shall approve.
Until such time as a seal is approved such stamp as the Chief Justice may authorise shall be used in place of a seal.

88. Jurisdiction of High Court in constitutional questions

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.
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.
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.
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.
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.
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—
1. the Beretitenti, acting in accordance with the advice of the Cabinet;
2. the Attorney-General; and
3. the Speaker.

89. High Court and subordinate courts

The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.
Where any question as to the interpretation of any provision of this Constitution (other than Chapter II) arises in any subordinate court and the court is of the opinion that the question involves a substantial question of law, the court shall refer the question to the High Court.
Where any question is referred to the High Court under the preceding subsection, the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal to the Court of Appeal or to the Judicial Committee, in accordance with the decision of the Court of Appeal or the Judicial Committee.

Part II. The Court of Appeal

90. Establishment of Court of Appeal

There shall be a Court of Appeal for Kiribati which shall be a superior court of record and shall have such jurisdiction and powers to hear and determine appeals as may be conferred on it by any law in force in Kiribati.

91. Judges of Court of Appeal

The judges of the Court of Appeal shall be—
1. the Chief Justice and the other judges of the High Court; and
2. such persons, possessing the qualifications prescribed in section 81(3) of this Constitution, as may be appointed from time to time by the Beretitenti acting in accordance with the advice of the Chief Justice sitting with the Public Service Commission.
An appointment under paragraph (b) of the preceding subsection shall be for a period of time or for the trial or hearing of particular causes or matters, as may be specified in the instrument of appointment.
The President of the Court of Appeal shall be appointed by the Beretitenti, acting in accordance with the advice of the Cabinet tendered after consultation with the Public Service Commission.
Any three judges of the Court of Appeal may exercise all the powers of the Court:Provided that the Court may have its judgment delivered by any one of its members who is also a judge of the High Court, and if there is no such member then through the Chief Registrar.
Any judgment of the Court of Appeal shall be in accordance with the opinion of the majority of the judges present.
A judge of the Court of Appeal shall not sit as a judge of the Court on the hearing of an appeal—
1. from any decision given by himself or any decision given by any court of which he was sitting as a member; or
2. against a conviction or sentence if he was the judge by or before whom the appellant was convicted.
Nothing in this section shall preclude the offices of Chief Justice and President of the Court of Appeal from being held by the same person.

92. Oath of office

Every person appointed under section 91(1)(b) of this Constitution shall, before entering upon the duties of his office, take and subscribe before the Beretitenti an oath in the form set out in Schedule 1 to this Constitution.

93. Tenure of office of judges of Court of Appeal

Subject to the provisions of this section, the office of a judge of the Court of Appeal shall become vacant upon the expiration of the period of his appointment to that office.
A judge of the Court of Appeal may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be removed except in accordance with the provisions of the next following subsection.
A judge of the Court of Appeal may be removed from office by the Beretitenti in pursuance of a resolution of the Maneaba ni Maungatabu if the question of the removal of that judge from office has been referred to a Tribunal appointed under the next following subsection and the Tribunal has advised the Maneaba that he ought to be removed from office for inability as aforesaid or for misbehaviour.
If the Beretitenti considers, or the Maneaba resolves, that the question of removing a judge of the Court of Appeal from office for inability as aforesaid or for misbehaviour ought to be investigated, then—
1. the Beretitenti shall appoint a Tribunal which shall consist of a Chairman and not less than two other members, one of whom holds or has held high judicial office; and
2. the Tribunal shall inquire into the matter and report on the facts thereof to the Maneaba and advise the Maneaba whether that judge should be removed under this section.
If the question of removing a judge of the Court of Appeal from office has been referred to a Tribunal under the preceding subsection, the Beretitenti may suspend that judge from performing the functions of his office, and any such suspension may at any time be revoked by the Beretitenti and shall in any case cease to have effect if the Tribunal advises the Maneaba that that judge should not be removed from office.

94. Judge may sit after appointment has terminated

A judge of the Court of Appeal whose appointment has terminated otherwise than by reason of his removal from office may sit as a judge of that Court for the purpose of giving judgment or otherwise in relation to any proceedings commenced before him while his appointment was subsisting.

95. Seal of Court of Appeal

The Court of Appeal shall have, and use as occasion requires, a seal bearing on it the words “The Court of Appeal of Kiribati” and such device as the Maneaba ni Maungatabu shall approve.
Until such time as a seal is approved such stamp as the President of the Court of Appeal may authorise shall be used in place of a seal.

Part III. General

96. Court officers

There shall be such registrars and other officers of the High Court and the Court of Appeal as the Chief Justice, subject to any law in force in Kiribati, may appoint, and every such registrar or other officer shall discharge such duties as may be prescribed by law or by rules of court or as a judge of the High Court or of the Court of Appeal may direct:Provided that a judge may, subject to any directions given by the Chief Justice, appoint a person temporarily to discharge, in relation to any case or matter, the duties of a registrar or other officer of the High Court or the Court of Appeal, and such person shall discharge such duties accordingly.
Any appointment made under this section may, at any time, be determined by the Chief Justice, acting after consultation with the Public Service Commission.

97. Rules of court

There shall be a Rules Committee, consisting of the Chief Justice, the President of the Court of Appeal, and the Attorney-General (who shall constitute a quorum) and such other persons, not exceeding two in number, as the Beretitenti may appoint, which may make rules of court regulating the practice and procedure of the High Court and the Court of Appeal, the admission of legal practitioners to practise in Kiribati, prescribing the fees to be paid in respect of any proceedings and generally for making provision for the proper and effectual exercise of the jurisdiction of the High Court and the Court of Appeal, including the procedure for the making and hearing of appeals to the High Court from subordinate courts and for the making and hearing of appeals from the High Court to the Court of Appeal:

Provided that rules prescribing or affecting the amount of any fees or the recovery thereof shall not come into operation unless approved, either before or after being made, by the Maneaba ni Maungatabu.