IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBM0002 of 2003

BETWEEN:

24622 SERGEANT ATONIO CELEASIGA
26286 SERGEANT ESORI GAUNAVINAKA
23231 CORPORAL APIMELEKI MADRAITABUA
23570 CORPORAL PONIYANI CAGILEVU
26572 CORPORAL SETITAIA LAKEPA BUADROMO
26650 CORPORAL KAMINIELI VOSAVERE
28487 CORPORAL JESE ULAICAKE
28635 CORPORAL SAILOSI KOLIKOLI
24484 LANCE CORPORAL RAFAELE NAVITALAI TIRITABUA
25191 LANCE CORPORAL PENI RERE
25949 PRIVATE SOLOMONE CAMA
29063 PRIVATE PAULIASI VAKACEREITAI
29160 PRIVATE ILIESA RATUMAINABOUWALU
29426 PRIVATE USAIA SAUKURU
29679 PRIVATE MATAIASI ULUIMOALA
27149 PRIVATE JITOKO SOKO
Applicants

AND:

THE COMMANDER REPUBLIC OF FIJI MILITARY FORCES
THE MINISTER FOR HOME AFFAIRS
THE ATTORNEY-GENERAL OF FIJI
Respondents

Mr. S. Valenitabua for the Applicants
Ms. D. Chan for the Respondents

JUDGMENT

The 2 issues in this case are:

(a)	whether a period of detention of 29 months prior to trial or court martial violates the provisions of Section 29 of the Constitution (the right to trial within reasonable time and right to a fair trial).

(b)	whether laying of further charges after applicants had been held in custody for 24 months is unreasonable and an abuse of process.

The application was made pursuant to High Court (Constitutional Redress) Rules 1998 and Chapter 2 paragraph 13 of the Manual of Military Law. A number of declaratory orders were applied for but except for above two issues the rest were abandoned.

FACTS:

The applicants are soldiers with the Republic of Fiji Military Forces (RFMF). They were all taken into custody by the RFMF at Queen Elizabeth barracks between 2nd November 2000 to 5th November 2000 except for 6th applicant who was taken into custody on 14th July 2000. At the time of swearing of the affidavit on 18th January 2003 they say they did not know when court martial would convene. They also allege that it is unlikely that any court martial would be convened within next two to three months. They had additionally asked for release pending court martial.

The respondents filed an affidavit in reply. It was sworn by Colonel Iowane Naivalurua who is a Commander – Land Force Commission. He deposed that the applicants detention was the result of applicants’ involvement at Parliament Complex in May 2000 and other unlawful acts both prior to and after takeover of Parliament. He alleges that a General Court Martial did convene on 20th March 2003 and it was adjourned by consent to 16th May 2003.

This meant that the events had overtaken the application and any decision is a theoretical exercise. The respondents submit that the declaration if made would serve no useful purpose as it would not result in release of the applicants as they are now under the jurisdiction of General Court Martial and any application for release from detention should be made there. They submit that the release sought is a discretionary relief and before the court grants such relief it must consider whether any useful purpose would be served by grant of such relief.

The court had asked the counsel for the applicants whether any useful purpose would be served seeing that a General Court Martial had been convened.

LAW:

In Rev. Akuila Yabaki and others v. The President of the Republic of the Fiji Islands and The Attorney General Civil Appeal 61 of 2001S on page 13 the Court of Appeal (Justice Barker and Justice Ward) said:

“Even the recent line of authority on standing for declarations in public interest cases shows that there is normally to be sought from the Court a ruling on the legality of something live: either the Court is asked to declare illegal something which is to happen or to declare illegal something which has happened in circumstances, usually, where a return to the status quo is feasible, even although inconvenient”.

I agree with the respondents submissions that no useful purpose would be served in making the declarations sought. The Court Martial has convened. The criminal proceedings have commenced and any declaration would be an interference with those proceedings. Something extraordinary must happen before a court would interfere.

In Sankey v. Whitlam (1978) 142 C.L.R. 1 at page 26 Gibbs A.C.J. put the position as follows :

“For these reasons I would respectfully endorse the observations of Jacobs P. (as he then was) in Shapowluff v. Dunn, that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reasons it is necessary in the interests of justice to make a declaratory order.”

Further I am of the view that the High Court may not have the powers to give directions or review decisions of the General Court Martial under Section 30 of the Fiji Military Force Act Cap 81 under which appeals from convictions by general court martial lie to the Court of Appeal and not to the High Court. So the general court martial is not a court inferior to the High Court. In The King v. The Army Council Ex-parte Rawenscroft [1917] 2 KBD 504 at 508 Vicount Reading CJ stated:

“I have no doubt that this court has no power to interfere with matters of military conduct and purely military law affecting military rules for the guidance of officers or discipline generally. I agree with what was said by Willies J in Dawkin v. Lord Rokeby (1): “It is clear that, with respect to those matters placed within the jurisdictions of the military forces, so far as soldiers are concerned, military men must determine them!”

CONCLUSION:
For above reasons I see that orders sought by the applicants would produce no foreseable useful consequence. The applicants are merely seeking advice from this court.

Having come to this conclusion there is no need for me to consider whether the constitutional provisions have been breached and a fair trial impossible.

The application is dismissed with costs to be taxed if not agreed.

[Jiten Singh]
JUDGE

At Suva
10th July 2003