| Fiji Islands - The State v Decision of the Disciplined Services Commission, Ex parte Vakarauwale - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW
HBJ NO. 10 OF 2000
STATE
-v-
DECISION OF THE DISCIPLINED SERVICES COMMISSION
ex parte ILIESA VAKARAUWALE
Counsel: r V. Tuberi for Applicant
Mr K. Keteca for Respondent
Hearing: 9th May 2000
Judgment: 20th June 2000
JUDGMENT
On 9th February 2000, leave to apply for judicial review for decisions made by the Commissioner of Police and the Disciplined Services Commission,
dismissing Iliesa Vakarauwale (the Applicant) from the Police Force.
The application is supported by the affidavit of Iliesa Vakarauwale sworn on 8th February 2000.
On 16th March 2000 the Respondents filed the affidavit of a Senior Superintendent Sada Nand, in response. The hearing which proceeded on
the basis of written and oral submissions, was held on 19th May 2000. Both counsel made helpful submissions which assisted the court.
The facts of the case are laid out in the affidavit material. The Applicant was appointed a police constable in March 1995, after
graduating from the Police Academy. In October 1998 he was posted to the Command Centre at the Nabua Police Station and to the Traffic
Section at the Central Police Station.
In December 1998 the Applicant was on sick leave from 29th December to 31st December inclusive. On 30th December, whilst on sick leave, the Applicant travelled by boat to Ogea. He returned to work on 4th January 1999 and became ill again.
He was given a default charge of malingering as a result of his trip to Ogea. He was dealt with on this charge but was also charged
with Neglect of Duty under the Police Regulations. He pleaded guilty.
On 14th May 1999, he was asked to show cause why he should not be discharged from the Police Force. On 21st July 1999 after the Applicant had made representations showing cause (Annexure E to the Applicant’s affidavit) the Divisional Police
Commander Southern informed the Officer in Charge of the Central Police Station that the Applicant had been dismissed from the Force.
On 28th July 1999 the Applicant asked the Commissioner to reconsider his position.
On 29th July 1999, the Commissioner wrote to the Disciplined Services Commission in the following terms:
“The above-named constable was defaulted on a disciplinary charge of Neglect of Duty, contrary to Regulation 12(36) of the Police
Regulation, Cap.85. The tribunal found the constable guilty of the offence charged and recommended a forfeiture of 2 days pay.
Having regards to this constable’s disciplinary record within a period of 3 years, he was on 14/05/99 asked to show cause as to why
he should not be discharged from the Police Force.
On 21/05/99, this constable made his representation expressing his regret of his past records. He also felt a deep sense of remorse
towards his past and promised that this will never happen in future.
The Commissioner of Police having viewed his representation and taking into consideration his past records, dismissed PC 2524 Iliesa
Vakarauwale from the Police Force under the provisions of Section 32(1)(A)(b) of the Police Act with effect from 16/07/99. The concurrence of the Police Service Commission is hereby sought to finalise the dismissal.
PC Iliesa joined the Fiji Police on 01/04/96 and his last posting was at Nasinu Police Station. Within three years of service, he
has been convicted on four (4) disciplinary charges excluding the current charge. Please refer to pages 30 and 31 in the Service
Register. The officer did not change after all the opportunities he was granted.
I shall be grateful for the concurrence of the Disciplined Service Commission in this matter at the earliest, please. The Personal
File and the Service Register of this constable is submitted herewith for your necessary action and return in due course, please.”
On 1st September 1999 the Applicant’s former solicitor wrote to the Commission telling the Secretary that the Applicant’s dismissal was
contrary to the Constitution 1997 and the Police Act.
On 11th November 1999, the Commission concurred with the Commissioner’s decision to dismiss the Applicant but said that the effective date
of dismissal was 20th September 1999. The Applicant’s salary from 16th July to 20th September was refunded to him.
However on 15th November 1999, the Commissioner wrote to the Applicant saying (Annexure L):
“This is to advise that the Commissioner of Police on 1/09/99 wrote to the Disciplined Services Commission recommending your Dismissal
from further services under the provisions of Section 32(1)(A)(b) of the Police Act Cap. 85.
The Disciplined Services Commission at its meeting on 27.10.99 having perused your file concurred with the Commissioner’s recommendation
to dismiss you from the Fiji Police with effect from 27.10.99.
You are to hand over all the kits and equipment issued to you to the Station Officer.”
The Applicant seeks to review this decision on the following grounds:
1. That the Commissioner’s dismissal of the Applicant on 16th July 1999 was ultra vires;
2. That the Commission’s decision to concur with the Commissioner’s decision was ultra vires and in breach of section 153(2)(a) of the
1997 Constitution;
3. That the Commissioner failed to give the Applicant the opportunity to be heard before he was dismissed;
4. That the penalty imposed on the Applicant under section 32 of the Police Act, Cap. 85, was arbitrary and unreasonable.
The dismissal of 16th July 1999
Section 14(1) of the Police Act Cap 85 provides:
“Any police officer other than a gazetted officer, may be discharged by the Commissioner at any time .....
(c) if the Commissioner considers that he is unlikely to become or has ceased to become an efficient police officer or that it is desirable
in the public interest that he should be discharged from the Force:
Provided that the discharge under the provisions of this subsection of any such police officer shall be subject to the concurrence
of the Police Service Commission.”
The former Police Service Commission has now been replaced by the Disciplined Services Commission, provided for by section 153 of
the Constitution Amendment Act 1997. Section 153(2)(a) of the Constitution provides that:
“The exercise by the Commissioner of Police of his or her powers to:
(a) remove a person from the Fiji Police Force requires the concurrence of the Disciplined Services Commission.”
It is not clear from the police correspondence, whether the Applicant was dismissed for neglect of duty under section 32(1)(A)(b)
of the Police Act, or that the Applicant had ceased to be an efficient police officer under section 14 of the Act.
However, counsel for the Commissioner submits that the reference to section 14 was an error on the part of the Director of Complaints
and that the dismissal was actually effective under section 32 of the Act.
Neglect of Duty is an offence under Regulation 12(36) of the Police Regulations. The Applicant pleaded guilty to this charge on 16
March 1999. The particulars of the offence (at Annexure B to Sada Nand’s affidavit), are that “on 14.1.99 between 0700 hrs to 1500
hrs, whilst being granted sick leave failed to inform your Unit IC prior to proceeding on sick leave as required by FSO 83(3) an
offence under Regulation 12(36) of Cap 85.”
The Tribunal recommended forfeiture of 2 days pay as the appropriate penalty.
Section 32(1)(A) of the Police Act provides that the Commissioner shall have power to impose punishments in the case of subordinate officers as follows:
(i) admonishment;
(ii) reprimand;
(iii) severe reprimand;
(iv) confinement to quarters for any period not exceeding fourteen days, with or without extra grounds, fatigues or other duty;
(v) a fine not exceeding seven days pay;
(vi) reduction in rank;
(vii) dismissal.”
Section 32(1)(A)(b) provides that the punishment of dismissal shall be subject to the concurrence of the Police Service Commission.
It is clear from the wording in section 32 of the Police Act, that a decision to dismiss a subordinate officer is invalid without the concurrence of the Disciplined Services Commission.
Counsel for the Respondent concedes as much, but says that the invalidity was cured because the date of dismissal is accepted to be
the date on which the Disciplined Services Commission concurred with the dismissal. That may be so.
However, it is clear that there was no effective dismissal on July the 16th, and that insofar as the 1st Respondent purported to so dismiss the Applicant from 16th July 1999, in its memorandum to the Officer in Charge of the Central Police Station (Annexure “F” to the affidavit of the Applicant),
that dismissal was ultra vires and invalid.
The dismissal of 20th September 1999
On 29th July 1999, the 1st Respondent obviously realising that it needed the concurrence of the Disciplined Services Commission, wrote to the Commission seeking
concurrence “to finalise the dismissal.” The Commission met on 20th September, and concurred as it had power to do, under section 153 of the Constitution. The Commission informed the Commissioner,
that the Applicant would be reimbursed his salary from 16/7/99 to 19/9/99.
The Applicant says that in reaching this decision, the Commission failed to give him an opportunity to be heard. Counsel cited the
recent decisions of the Fiji Court of Appeal in Permanent Secretary for Education and the Public Service Commission ex parte Epeli Lagiloa Civil Appeal No. ABU 0038 of 1998 and Permanent Secretary for Education ex parte Lepani Matea Civil Appeal No. 0016 of 1998 to support his submission that before imposing any penalty a disciplinary tribunal must provide the
officer with the opportunity to be heard on penalty.
That proposition is unarguable. However, in this case the Applicant was given an opportunity to make submissions before penalty was
imposed, and he took that opportunity to write representations to the Commissioner once, on 21st May 1999 and then on 28th July 1999. These very full submissions in which he expressed remorse for his weakness for alcohol and “wrong company”. These submissions
were considered by the Commissioner (Annexure H to the Applicant’s affidavit), and it appears, by the Commission which perused the
Applicant’s personal file at its meeting of 20th September 1999. In particular, his Service Register which showed the four disciplinary offences he had been convicted of (excluding
the immediate charge) was forwarded to the Commission.
The question is, should the Commission have given the Applicant further opportunity to be heard? The facts of this case show that
a police disciplinary tribunal was set up to hear the charge against the Applicant for Neglect of Duty. That tribunal recommended
(and it is not clear whether the Applicant was given an opportunity to mitigate before the Tribunal) forfeiture of two days pay.
The Commissioner who wished to pass a heavier penalty gave the Applicant the opportunity to “show cause” why he should not be dismissed.
Although the Police Act is silent on the need to give that opportunity, rules of procedural fairness require this step to be taken. The right to be heard
does not necessarily mean the right to an oral hearing (unless statute provides for one). In this case, I consider the Commissioner
to have acted fairly in giving the Applicant the opportunity to make full written representations twice. Indeed the second set of
representations post-dated the purported “dismissal” of 16th July, which suggests that all parties were aware that the dismissal was not yet set in stone.
Having followed these procedures, and having forwarded the Applicant’s representations to the Commission, was the Commission required
to give the Applicant opportunity to be heard?
The answer lies in the nature of the discretion exercised by the Commission. The Oxford Advanced Dictionary of Current English defines
the word “concur” as “agree” or “expressly agree.”
There is no doubt that the Commission’s power to agree to the Commissioner’s recommendation to dismiss, was a power which had the
potential of adversely affecting the Applicant’s interests. There is also no doubt, that the Disciplined Services Commission is
a public body performing public duties, and therefore has a duty to perform those functions fairly. What constitutes fairness, in
the absence of a constitutional or statutory procedure is a matter for the court to decide. As Woolf LJ said in R -v- Panel on Takeovers and Merges, ex p Guiness (1990) QB 146, “the court is the arbiter of what is fair.”
It was said in Wiseman -v- Borneman (1971) AC 297 308, that natural justice:
“requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances ..... For a long
time the courts have without objection from Parliament, supplemented procedure laid down in legislation where they have found that
to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure
is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.”
The Fiji Court of Appeal in Public Service Commission -v- Lepani Matea (CA 16/98) said:
“The requirement that a person be given a fair opportunity to be heard before a body determines a matter that affects him adversely
is so fundamental to any civilised legal system that it is to be presumed that the legislative body intended that a failure to observe
it would render the decision null and void. If there are no words in the instrument setting up the deciding body requiring that such
a person be heard the common law will supply the omission. It will imply the right to be given a fair opportunity to be heard.
While the legislative body may exclude limit or displace the rule it must be done clearly and expressly by words of plain intendment.
The intention must be made unambiguous/clear. Finally we add that what is a fair hearing will depend upon the circumstances of
each case; it does not mean that in every case a right of personal appearance must be given.”
In this case the Applicant was exposed to the possibility of the severest penalty possible under the Police Act. Although he was heard by written representations before the Commissioner’s recommendations were sent to the Commission, he was
given no further opportunity to ask for a lighter penalty before the Commission.
Although his personal file was sent to the Commission, there is no evidence that his representations were read and considered by the
Commission. There is no specific evidence of the contents of the Applicant’s personal file, especially regarding his previous disciplinary
convictions, nor is there evidence that the statements of witnesses in respect of the Neglect of Duty charge were disclosed to the
Commission. Finally there is no evidence that the Commission read any of the documents on the Applicant’s file.
In the circumstances I am of the view that the Commission failed to act fairly. Fairness required the Commission to inform the Applicant
that it was considering agreeing to the Commissioner’s recommendation for dismissal, that it had perused his representations, his
previous convictions and the circumstances of the Neglect of Duty charge, and that he had an opportunity to make further representations
to the Commission. Concurrence is not a rubber-stamp. It is the exercise of a discretion with potentially adverse consequences
on the person affected.
The failure of the Commission to act in a way that was procedurally fair, was in my view, fatal to the decision to dismiss. The dismissal
of the Applicant of 20th September 1999 is quashed.
It is therefore not necessary to consider the other grounds argued by the Applicant, of arbitrariness and unreasonableness.
The Respondents must pay the Applicant’s costs which I set at $400.
Nazhat Shameem
JUDGE
At Suva
20th June 2000
HBJ0010J.00S
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