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Baleinamau v Commander of the Fiji Military Forces [2001] FJHC 126; Hbm0014.2001s (8 May 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

MISCELLANEOUS ACTION NO. 14 OF 2001

IN THE MATTER OF LIEUTENANT
PENAIA VETAUKULA BALEINAMAU

and

IN THE MATTER OF AN APPLICATION
FOR A WRIT OF HABEAS CORPUS AD
SUBJICIENDUM

Between:

PENAIA VETAUKULA BALEINAMAU
Applicant

and

COMMANDER OF THE FIJI MILITARY FORCES
Respondent

Ms. S.L. Waqanibeta and Mr. I. Tuberi for the Applicant
Capt. Sainivalati Navoti for the Respondent

JUDGMENT

By motion dated 6 March 2001, Elenoa Mokuro Baleinamau (the 'applicant') the wife of the Lieutenant Penaia Vetaukula Baleinamau (Lt. Penaia) has applied for a writ of habeas corpus subjiciendum seeking her husband's release from detention by the Commander of Republic of Fiji Military Forces (RFMF).
On the hearing of the application both counsel stated that they will rely on their written submissions. I then adjourned for judgment on notice.

Applicant's affidavit evidence

The circumstances in which her husband had been detained are set out in the applicant's affidavit in support, inter alia, as in paragraphs 4 and 5 of her said affidavit wherein she deposed:

"At 1530 hours on 27^th July, 2000 armed soldiers came home and arrested my husband. He was taken and detained at Nasinu Police Station and at 11.30 hours the next day taken to Queen Elizabeth Barracks (QEB) Nabua and was later transferred to Nabua Police Station. My husband was questioned and detained for a total period of 67 days.

On 5^th October, 2000 my husband was released by the Army but re-arrested on 11^th October, 2000. He has been in military custody since. My husband was not part of the unit that took part in the alleged mutiny at QEB on 2^nd November, 2000. To the best of my knowledge and belief, my husband has to date not been charged with any offence by the Army or the Police."

For the reasons she has given she is seeking his release from detention.

Respondent's affidavit evidence

In his affidavit sworn 2 April 2001 Lieutenant Colonel Jone Baledrokadroka, the Chief Staff Officer Operations of RFMF and in charge of the Intelligence Unit has stated, inter alia, that: 'from May 19th 2000 to this day, political situation in this country has not returned to normality'; Penaia commands a following and 'respect of the majority of the ex-CRW personnel and that they are capable of causing disaffection amongst the Forces and destabilize the nation'; Penaia was 'threatened twice when a weapon was cocked and pointed at his head on two separate occasions' on the day of the mutiny at the Queen Elizabeth Barracks ('QEB') namely, 2 November 2000. He said that given the animosity still prevailing, this is not the appropriate time for Lt. Penaia to be released back into the Force. He has advised the Commander, RFMF that 'it is prudent for the applicant to remain in his protective custody until such time I receive further reports that it is safe for him to be released.'

The Affidavit in Reply of Commander Josaia Voreqe Bainimarama (the Commander) sworn 2 April 2001 explains the circumstances giving rise to Lt. Penaia's detention and for its continuance. The Commander further states that the detention is not in breach of section 23 of the Fiji Military Forces Act Cap. 81 on the applicability of the Army Act 1955 as alleged and that as Major K.V. Tokelau, the QEB Camp. Commandant said in his affidavit, Lt. Penaia 'is being kept in camp for his own protection and safety and is well within the rules and regulations applicable to military personnel.'

The Commander further states that investigations into the mutiny are still in progress and that fifteen (15) weapons are still missing and that intelligence report reveals that a threat of an uprising still exists. Throughout his protective custody Lt. Penaia 'has been given full visitation rights, ample opportunities for physical exercise and still receives his full salary entitlement.'

The Commander has in his said affidavit set out his reasons for the detainment of the applicant in the following words:

(1) The applicant's activities during the 19^th of May 2000 illegal take over of parliament and specifically the unauthorised release of weapons were a threat to the RFMF and to the security of this country.

Being the OC of the CRW units, the applicant was answerable directly to me as the Commander of the RFMF. His responsibilities include the command, training, security, discipline, education, and health, morale and general efficiency of the troops under his command. An OC is also responsible for the immediate reporting to higher authority of all cases in which troops under his command are engaged in riots or disturbances. (Annexure L).

The applicant failed me in his duties and therefore put the security of this country at risk.

(2) That the applicant's subsequent activities following his release from military custody on the 5^th day of October 2000, showed me that he commands a following in the community and therefore can and may adversely influence members of the public. This threat is made worse by the fact that 15 weapons are still missing and I believe that the applicant can pose further serious threat to national security if he comes into contact with those in possession of these missing weapons.

(3) That after the cocking of weapon to the applicant's head on 2^nd November 2000, and following intelligence report that certain factors of the CRW units and loyalist forces are after the life of the applicant, I have an honest opinion that his life is in grave danger and it is in his best interest that he be kept in my protective custody until such time such a threat subsides.

(4) If released from my protective custody, I cannot guarantee his safety and given the nature of ill will that still exist among the members of the force towards him, I will not be able to control any harm done to his person."

On behalf of the Respondent an affidavit sworn 2 April 2001 in Reply has also been filed by Major Kelevi Vakuruivalu Tokalau, the Camp Commandant Q.E.B. at Nabua, charged with the responsibility of ensuring the safe and secure custody of all detainees at Q.E.B. He said that Lt. Penaia is in protective custody at Q.E.B. and this is lawful following detention procedure regulation. In this regard he makes reference to s.202 of the Army Act.

Applicant's submission

It is the learned counsel for the applicant Mr. Tuberi's submission that:

(1) the applicant was detained for 48 hours on 27 July 2000 under section 18(2) of the Emergency Decree (No. 4) of 2000. Thereafter he was kept in custody for 67 days before being released on 5 October 2000 under Rule 6 of the Rules of Procedure (Army) 1972.

After the alleged mutiny at RFMF on 2 November 2000 he was again arrested on 5 November 2000 and kept under 'protective custody' under the said section 202

(2) Counsel argues that section 202 only provides for detention for a period not exceeding seven days. He submits that by detaining him for a longer period the respondent is unlawfully detaining him.

Similarly, he submits that the Respondent has breached the provisions of section 18(2) of the said Emergency Decree (No. 4) by detaining him unlawfully from 5 November 2000.

The said section 18(2) provides as follows:

"No person shall be detained under this section for a period exceeding 24 hours except with the authority of a magistrate or the Commissioner of Police or the Officer Commanding on whose direction such a person may be detained for further period of 48 hours: Provided that if a magistrate is satisfied that the necessary enquiries cannot be completed within such further period of 48 hours, such magistrate may direct such a person to be detained for a further period not exceeding 7 days". (emphasis mine)

(3) Counsel further submits that now that the President of the Republic of Fiji has announced the dates for the General Election, 'the period for which the military could use its coercive power, ... has lapsed.' Therefore he says that the respondent is unlawfully detaining Lt. Penaia.

(4) Counsel also relies on section 27 of the 1997 Constitution of the Republic of the Fiji Islands (hereafter referred to as the "Constitution") which provides (in so far as it is relevant) that:

"27. (1) Every person who is arrested or detained has the right:

(1) to be informed promptly in a language that he or she understands of the reason for his or her arrest or detention and of the nature of any charge that may be brought;

(2) to be promptly released if not charged;

(3) .....

(4) .....

(5) to challenge the lawfulness of his or her detention before a court of law and to be released if the detention is unlawful; and

(6) ....."

Counsel's concluding remarks are that the respondent is 'illegally and unlawfully detaining' Lt. Penaia under the pretext of 'protective custody' which has no legal standing 'under the 1997 Constitution and Emergency Decree 2000'. Mr. Tuberi submits therefore that Lt. Penaia should be released immediately.

Respondent's submission

It is the respondent's submission that Lt. Penaia while holding the position of OC of the Counter Revolution Warfare Unit (CRWU) released weapons to assist members of his unit who were involved in the illegal take-over of Parliament on 19 May 2000. The release of these weapons was illegal and was without any proper authorisation. The officer's activation posed great security threat to the Nation, to the lives of those hostages in Parliament and for the security and unity of the RFMF.

The soldier was released on 5 October 2000 under Rule 6 of the Rules of Procedure (Army) 1972 because Lt. Penaia could not be held in arrest for more than 72 days. Rule 6 provides:

"RP.6 An accused shall not be held in arrest for more than seventy-two consecutive days without a court-martial being convened for his trial, unless the officer who could be responsible for convening the court-martial directs in writing that he shall not be released from arrest. When giving such direction such officer shall state his reasons for giving it." (emphasis added)

Because of certain alleged illegal activities he was re-arrested on 11 October 2000 but was free to go home and was ordered to report to 'barrack' at certain times.

Staging of the alleged mutiny was done on 2 November 2000 by a group of CRW soldiers previously under Lt. Penaia's command in an attempt to resist the lawful authority of Commodore Bainimarama. Eight soldiers were killed as a result of the mutiny and the suppression thereof. All this happened when Lt. Penaia was still under Control of Movement of Persons Order. His life was also threatened twice.

The respondent says that the investigation into the mutiny is still continuing.

The soldier is in Commander's 'protective custody' since 5 November 2000 under section 202 of the Army Act (1955) which in so far as it is relevant states that:

"202. (1) Where a person is in military custody when charged with, or with a view of his being charged with, an offence against Part II of this Act, it shall be the duty of the governor, superintendent or other person in charge of a prison (not being a military prison), or of the person having charge of any police station or other place in which prisoners may be lawfully detained, upon delivery to him of a written order purporting to be signed by the commanding officer of the person in custody to receive him into his custody for a period not exceeding seven days. (emphasis added)

Whilst in protective custody, the applicant is released after seven days and is subsequently brought back into custody shortly thereafter.

The learned counsel for the respondent dealt with the issues in this application in his written submission under captions: (a) whether the Commander has powers to detain military personnel and whether he has acted according to law, and (b) Commander's Powers of Protective Custody. He also gave justification for detaining the soldier.

Consideration of application for habeas corpus

I will set out the nature of writ of habeas corpus as I shall later be dealing with some questions of procedure in this matter.

'Habeas corpus' is a prerogative writ; and 'habeas corpus subjiciendum' is directed to a person who detains another in custody commanding him to produce or "have the body" of the person detained with the 'day and cause of his caption and detention' before the Court.

As stated by Earl of Birkenhead in Secretary of State for Home Affairs v O'Brien [1923] All ER Rep. H.L 442 at 444

"It is perhaps the most important writ known to the constitutional law of England, affording, as it does, a swift and imperative remedy in all cases of illegal restraint or confinement".

He further states:

"It (writ) is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege".

It is worth noting the interesting account of the history and the nature of the writ by Lord Wright in his judgment in Greene v Secretary for State for Home Affairs 1941 1 All ER 388 at 399 when he said:

"The writ of habeas corpus is an ancient common law writ, which, from about the end of the sixteenth century or the earlier years of the seventeenth century, came to be used as the normal procedure for protecting the liberty of the subject against unlawful arrests and detainments, in particular those by order of the executive".

His Lordship goes on to state at p.399-400:

"It is clear that the writ of habeas corpus deals with the machinery of justice, not the substantive law, except in so far as it can be said that the right to have the writ is itself part of substantive law. It is essentially a procedural writ, the object of which is to enforce a legal right. The writ is described as being a writ of right, not a writ of course. The applicant must show a prima facie case that he is unlawfully detained. He cannot get it as he would get an original writ for initiating an action, but, if he shows a prima facie case, he is entitled to it as of right. The first question, therefore, in any habeas corpus proceeding is whether a prima facie case is shown by the applicant that his freedom is unlawfully interfered with, and the next step is to determine if the return is good and sufficient".

The rules governing application for a writ of habeas corpus in Fiji are contained in Order 54 of the The High Court Rules 1988.

Subject to what I say hereafter, the case before me is that of an army officer who is subject to military law in contradistinction to laws applicable in civilian Courts of the State, he is governed by the Army Act 1955 (hereafter referred to as 'the Act') of the United Kingdom and Rules of Procedure (Army) 1972 ('RPA').
The Republic of the Fiji Military Forces (RFMF) is governed by the Royal Fiji Military Forces Act Cap 81 Vol 4 Laws of Fiji 1985 Revised Edition. This Act, as is stated in the Preamble, is an 'Act to provide for establishment, maintenance and regulation of Military Forces and for purposes incidental thereto'.

On the applicability of the Army Act, section 23 (referred to already) provides, inter alia:

"23(1) In relation to the government of and for the enforcement of discipline in the Forces the Army Act shall, subject to the provisions of this Act and any regulations made thereunder and with the modifications referred to in subsection (2), apply as if the Forces formed part of Her Majesty's Regular Forces -

(1) .....

(2) ....."

And in section 2 of Cap 81 'Army Act' is defined as meaning "the Army Act 1955 of the United Kingdom and includes all Acts amending, replacing or read in conjunction with the same and all rules, regulations and Articles of War made thereunder".

Lt. Penaia is of the view that he is detained without legal justification. He says that he is entitled to apply for his liberation and this is now being pursued by his wife who is the applicant herein.

I have stated hereabove the circumstances and the reasons advanced by the Respondent for Lt. Penaia's detention under 'protective custody' for 67 days before 5 October 2000 and ever since 11 October to date under section 202 of the Act.

The court is bound to examine the facts in an application of this nature and apart from the statutory provisions and regulations, 'in habeas corpus proceedings the court may examine any grounds for the detention, notwithstanding it was not necessary to give them' [R v Secretary for State for the Home Department, ex parte Iqbal (1979) 1 All E.R. 675 at 679].

The affidavit evidence reveals that this officer has been kept in detention and protective custody for an unusually long time. The affidavit of the Commander indicates that there was justification for the officer's detention in relation particularly to the alleged release of firearms to some members of Counter Revolutionary Warfare (CRW) to enable CRW to stage the coup of 19 May 2000 and also in relation to an inquiry into the mutiny at Queen Elizabeth Barracks on 2 November 2000.

The Queen's Regulations for the Army, 1975 (QR) applies to RFMF and the powers of arrest, charge and trial are contained in chapter 6 thereof. The arrest relates to members of the Army. In item 6.005 it is stated that 'if arrest is necessary the category of arrest is to be determined in the interests of the Service and by the nature of the alleged offence. Generally a person is to be placed under close arrest only when confinement is necessary to ensure his safe custody or to maintain discipline.'

It appears that because of the serious allegations against this officer he has been under 'close arrest'. The rights of the Respondent to detain him is not in dispute but his powers of detention are limited by time as already stated above in the various statutory provisions and regulations.

On the authority of R v O./C. Depot Battalion, R.A.S.C. Colchester Ex parte Elliott (1949) 1 All ER 373 at 379, that 'if there has been such delay, in bringing a man to trial as to amount to oppression, this court will interfere'. There it is stated:

"that it is in the discretion of the commanding officer to decide whether a man is to be kept under close arrest or under open arrest and the difference between close arrest and open arrest is not unlike the difference between the position of a man remanded in custody and a man remanded on bail. If a man is kept an unreasonable time awaiting trial to such an extent that this Court thinks it is oppressive, they can interfere..." (Lord Goddard C.J. at p379).

Here the Court is concerned only with the man's detention. It is said in Ex.p. Elliot (supra at p380) that:

"Whether or not there has been excessive delay let alone oppressive delay, must depend on the circumstances of each particular case. I need not stress how desirable it is, especially when a man is under close arrest, that he should be brought to trial at the earliest possible moment and as soon as a court martial can be convened".

I agree with the learned counsel Mr. Tuberi that said section 202 merely allows for detention 'for a period not exceeding seven days'. I hold that to release the officer after 7 days and then take him back in detention very shortly afterwards is not the mischief intended by the section. If that was the intention then this procedure could continue indefinitely and that would be in breach of a citizen's constitutional right under the said s.27 of the Constitution.

Even said s18(2) does not allow detention for more than 7 days. The onus is on the Respondent to prove that the continued arrest and detention of Lt. Penaia is lawful and it is for the Court to decide whether the Respondent had reasonable cause to detain. It is for the person detaining or arresting to give reasons for a new detention and at the first reasonable opportunity [Christie v Leachinsky [1947] UKHL 2; (1947) A.C. 573], this however has not been done at all or promptly. To detain for so many months without a charge is beyond comprehension. What is expected of the Respondent in a situation such as this has been well put by Rooney J at p108 in Nikhil Naidu (33 FLR 100) when he said:

"There had to be present at the time of the arrest and detention of Naidu a reasonable suspicion that he had acted or was about to act or was likely to act in any manner prejudicial to public safety or the preservation of peace or that he was about to commit an offence against the Public Emergency Regulations. His arrest and detention had to be reasonably justifiable for the purpose of dealing with the present situation".

On a point of law a similar situation as in the present case arose in Re Nikhil Naidu (supra) which was also a case of habeas corpus at a time when Public Emergency Regulations were in force during the Fiji coups d'etat of 1987. There Rooney J stated at p.105 that a certain witness is:

"under the impression that under the Public Emergency Regulations, the police and military forces have the right to arrest and detain any person with impunity and that the right to personal liberty guaranteed by section 5 of the Constitution no longer exists. He is mistaken. Fiji is not a police state where all are suspect unless proved otherwise".

Even the Emergency Decree 2000 (Interim Military Government Decree No. 4) of 2 June 2000 (which I understand is still in force) does not allow for indefinite detention.

These statement of Rooney J are pertinent to this case. Section 27 of the Constitution provides for the citizen's rights and this has to be heeded by all concerned. The rights of the subject under the Constitution and the common law principles on the subject of habeas corpus vis a vis various legal enactments restricting his rights in time of war or certain crisis are set out very well in the following passage from the judgment of Lord Atkinson in Rex v Halliday [1917] UKHL 1; (1917) A.C. 260 at 271 - 272, they are apt and are worth noting in the context of the present case:

"However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely national success in the war, or escape from national plunder or enslavement. It is not contended in this case that the personal liberty of the subject can be invaded arbitrarily at the mere whim of the Executive. What is contended is that the Executive has been empowered during the war, for paramount objects of State, to invade by legislative enactment that liberty in certain states of fact. It was also urged that this Defence of the Realm Consolidation Act of 1914, and the regulations made under it, deprived the subject of his rights under the several Habeas Corpus Acts. That is an entire misconception.

His Lordship goes on to say:

The subject retains every right which those statues confer upon him to have tested and determined in a Court of law, by means of a writ of Habeas Corpus, addressed to the person in whose custody he may be, the legality of the order of warrant by virtue of which he is given into or kept in that custody. If the Legislature chooses to enact that he can be deprived of his liberty and incarcerated or interned for certain things for which he could not have been heretofore incarcerated or interned, that enactment and the orders made under it, if intra vires, do not infringe upon the Habeas Corpus Acts in any way whatever, or take away any rights conferred by Magna Charta, for the simple reason that the Act and these Orders become part of the law of the land. If it were otherwise, then every statute and every intra vires rule or by-law having the force of law creating a new offence for which imprisonment could be inflicted would amount, pro tanto, to a repeal of the Habeas Corpus Acts or of Magna Charta quite as much as does this statute of November 27, 1914, and the regulations validly made under it". (emphasis mine)

Conclusion

To conclude, the Army Act, the Rules of Procedure (Army) and the Queen's Regulations are applicable to Lt. Penaia and there is no issue that habeas corpus application cannot be made. I am of the view that the length of time that he has been detained under the powers vested in the Respondent, the law no longer allows him to detain the officer any longer without deciding to lay a charge against him for an offence he may have committed. As I said before it is for the Respondent to prove that the arrest and detention of Lt. Penaia is lawful under the authority vested in him. In the present circumstances the detention is not justifiable for dealing with the existing situation as perceived by the Respondent. This perception merely amounts to a fear in his mind which should not be allowed to deprive the soldier of his liberty to which he is entitled in law without being charged for an offence.

Martial law does not prevail in Fiji at present to enable the Respondent to detain Lt. Penaia at Q.E.B. under the Act other than as provided in s18(2) and s202. The civil courts are still exercising uninterrupted jurisdiction. [D.F. Marais v The General Officer Commanding the Lines of Communication and the Attorney-General of the Colony [1901] UKLawRpAC 52; 1902 A.C. 109 P.C]. The Constitution of the Republic of the Fiji Islands is intact and operative as declared by the Court of Appeal on 1 March 2001 in the case of The Republic of Fiji, The Attorney-General of Fiji and Chandrika Prasad (Civil Appeal No. ABU0078 of 2000S) when it stated at page 49 of the Judgment that '(i) The 1997 Constitution remains the supreme law of the Republic of The Fiji Islands and has not been abrogated.' Therefore, on the facts and circumstances of this case s27 of the Constitution will apply to the officer particularly where it says that he is to be "promptly released if not charged". Also the purpose of the said Emergency Decree which is still operative is to maintain law and order but not to deprive a citizen of his constitutional right.

I have given due consideration to the Respondent's view that the country is still not out of the woods so to say and clear of danger and the investigation into the mutiny is still proceeding, but after 277 days of detention there is no indication when the investigation is going to end. The fact that it is incomplete, bearing in mind the length of time it is taking, is not sufficient enough reason in law to detain the officer any longer. I have given the greatest of respect to the Commander's reasons for detention and I have come to the conclusion to which I have come after mature consideration bearing in mind the law on the subject of habeas corpus and various Acts and regulations to which I have already made reference. May be because of the nature of the soldier's alleged involvement the matter has become complicated and one which the Commander finds it difficult to decide. But the delay is obviously too long that this Court ought to interfere. While no doubt what is being done in this case by detaining the officer for his own safety, a citizen is not to be deprived of his liberty and detained under or without arrest at RFMF merely because the Commander thinks it is in the officer's own good.

Therefore, whilst noting the reasons for continued detention of the officer by the respondent, the Court is not satisfied that the reasons advanced warrant the continuation of the detention under the law. Further detention will therefore be unlawful and unjustified.

For the reasons that I have given and in the circumstances of the officer a case has been made out for the writ. Hence I grant the application for a writ of habeas corpus and order Lt. Penaia's immediate release from detention and/or arrest.

D. Pathik
Judge

At Suva
8 May 2001