IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

HABEAS CORPUS ACTION NO. HBM 0003J OF 2003S

BETWEEN:

1.	27066	CPL. METUISELA RAILUMU
2.	24393	CPL. ISIRELI CAKAU
3.	26700	CPL. ALIKISIO ALAVA
4.	25572	LCPL. BARBADOS MILLS
5.	28390	PTE. POLICE NAMULO
6.	29551	PTE. JONA NAWAQA
7.	29200	PTE. BENIAME SOKIVETA
8.	29211	PTE. FILIMONI RAIVALU
APPLICANTS

AND:

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

COUNSEL FOR THE APPLICANTS: S.R. VALENITABUA
COUNSEL FOR THE 	)	: Lt. Col. A. MOHAMMED	) Army
1ST RESPONDENT		)	: W. CALANCHINI		) Legal
									) Services

COUNSEL FOR THE 2ND &	: K. KETECA - Attorney-General’s
3RD RESPONDENTS				  Chambers

DATE OF JUDGMENT		: 14 March 2003
TIME OF JUDGMENT		: 11.00 A.M.

JUDGMENT

The Applicants were released with conditions, pursuant to the Order of this Court on 24 December 2002. The Order followed their applications, (Case No. HBM 81J of 2002S) under the High Court (Constitutional) Redress Rules 1998, for a declaration that their constitutional rights guaranteed under Chapter 4 of the Constitution, and specifically their right to have their cases heard and determined within a reasonable time by a Court of Law had been breached. The Court agreed. It considered the 25 months detention without a hearing, a violation of their constitutional rights.

There were strict conditions attached to the Applicants’ release, bearing in mind the concerns raised by the Respondents. Contrary to media reports the proceedings in December last year, was not a bail application. Instead, the Applicants sought and successfully obtained their release through the enforcement provisions of the Constitution’s Bill of Rights. The Court declared that there has indeed been a contravention of the provisions of Chapter 4 of the Constitution that relates to the Applicants’ rights to have their case brought before a Court, including a military Court, within a reasonable time.

According to the affidavits filed by the Appellants, all of them were, as soon as the December hearing concluded, taken away to the Army headquarters at Nabua and charged with new offences specifically two count of murder.

This is a habeas corpus ad subjiciendum application. It is a prerogative writ intended to secure the release of a person who is unlawfully detained. It is in essence, a writ of right although not available as a matter of course. First, the Applicants have to show a prima facie case that they are being unlawfully detained. The Respondents on the other hand have the burden to justify the legality of the detention. In this regard, the Respondents attest that the detention is pursuant to the exercise of a statutory power, to whit: section 70 of the Army Act 1955, and section 199 of Fiji’s Penal Code, charging the Applicants with murder. Under these circumstances the onus is on the Applicants to establish that such powers had been invalidly exercised and therefore their detention is illegal. The standard of proof is the civil standard of the balance of probabilities.

The 1st Respondent in its affidavits confirmed that the Applicants have been charged with murder, the details of such charges are annexed to the affidavits.

APPLICANTS’ SUBMISSIONS

Counsel for the Applicants argues that the 1st Respondent does not have any legal authority to charge and try the Applicants with murder through a Court Martial proceedings. Counsel referred to the provisions of the Army Act 1955 and specifically to section 70, to support his arguments.

Section 70 of the Act deals with army personnel committing civil offences including those under Penal Code. The relevant provisions are contained in sub-sections (1), (2), (4) and (5) which state as follows:

“Civil Offences

70 –	(1) 	Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence under this section.

(2)	In this Act the expression “civil offence” means any act or commission punishable by the law of England, or which if committed in England, would be punishable by that law; and in this Act the expression “the corresponding civil offence” means the civil offence the commission of which constitutes the offence against this section.

(3)	……

(4)	A person shall not be charged with an offence against the section committed in the United Kingdom, if the corresponding civil offence is treason, murder, manslaughter treason – felony or rape or an offence of genocide or an offence under section 1 of the Biological Weapons Act 1974. In this and the following sub section the reference to murder shall apply also to aiding, abetting, counselling or procuring suicide.

(5)	Where the corresponding civil offence is murder or manslaughter or an offence of genocide consisting of the killing of any person, an offence against this section shall be deemed, for the purposes of the last foregoing sub section, to have been committed at the place of the commission of the act or occurrence of the neglect which caused the death, irrespective of the place of the death.”

Counsel for the Applicants in particular referred the Court to the interpretive Note 3(b) to section 70 of the Act which states that:

“In the normal case a person can be charged with committing an offence under this section anywhere in the world and the court martial for the trial of the accused can be convened anywhere, see s.91.

There are two exceptions to the general rule:-

(i)	a person cannot be tried by court-martial for the offences enumerated in sub-section (4) if committed in the United Kingdom; and

(ii)	a court-martial cannot be convened in the United Kingdom to try a person for having committed a grave breach of one of the Geneva Conventions of 1949, see GC Act 1957, 51(5).”

It is accepted by all the parties that the provisions of the (UK) Army Act 1955 (“the Act”) apply to Fiji by virtue of section 23 of our own Army Act (Cap. 81). Where therefore, Counsel for the Applicants argues, reference is made to the “United Kingdom” in section 70 as above-quoted, this should be substituted with “Fiji”.

According to Counsel, the application of section 70(4) of the Act, would deprive the 1st Respondent of any jurisdiction to try the Applicants in a military court.

COURTS-MARTIAL JURISDICTION

The history of section 70 of the Act is an interesting one for students of jurisprudence. It is the consequence of the efforts of the military authorities, no doubt with political support, to centralise the control of military personnel under one single authority. Obviously, to have them subject to both civilian as well as military jurisdiction for any civil offences they commit, would have resulted in uncertainty and confusion. Thus in order to have the military authorities have effective control over persons who are subject to military law, section 70 was enacted to make it a military offence for such a person to commit a “civil offence”. This means that persons subject to military law will be dealt with by a court-martial for any civil offence she or he may commit.

But section 70 is not intended to oust the jurisdiction of the civil courts altogether. In effect, this Court is of the view that nothing in the Act affects any jurisdiction of any civil court to try a person subject to military law for any offence. All that the scheme of section 70 does is recognise the courts-martial jurisdiction over persons subject to military law and once dealt with under the Act, such person is not liable to be tried subsequently by a civil court for the same offence. The reverse is equally true.
Sub-section (4) of section 70 provides an exception to the jurisdiction of the courts-martial. Counsel for the Applicants had highlighted in his submissions that under sub-section (4), the 1st Respondent does not have any powers to try any person subject to military law, for murder; “Murder” being one of the specified offences which are made exceptions to the application of section 70.

Note 18 to section 70 clarifies that:

“S – s(4) is intended to protect the jurisdiction of the civil Courts in England and Wales, Scotland, N. Ireland, the Isles of Man and The Chanel Islands; otherwise the jurisdiction of courts-martial is not fettered.”

In Regina v. Page [1954] 1 QB 170, the British Courts-Martial Appeal Court dealt with an appeal of a soldier convicted of murder of a non-British civilian outside of the United Kingdom, by Court-martial. The then equivalent of section 70, was section 41 of the Army Act 1881, which while very much similar to the newer section 70, had the following proviso:

“Provided that a person subject to military law shall not be tried by Court-martial for treason, murder, manslaughter, treason-felony or rape committed in any place within His Majesty’s dominions, other than the United Kingdom and Gibraltar unless such person at the time he committed the offence was on active service or such place is more than one hundred miles … from any city or town in which the offender can be tried by such offence by a competent civil court.”

In dismissing the appeal and holding that “a person subject to military law could be tried for murder by court-martial abroad whoever the victim and wherever the offence was committed” the Court commented on the proviso as follows:
(per Lord Goddard CJ at p.177):

“The object to the section and indeed, of the regulation as mentioned in the first part of the section, is to ensure that persons charged with these grave offences shall be tried where possible by a civil court and not by a court martial. It is to prevent any conflict of jurisdiction between civil and military courts. In our opinion, the plain meaning of the section is that a court-martial can try a person subject to military law for any offence wherever committed which would be an offence against the law of England, subject only to this, that the section provides for the trial of the prisoner before a civil court instead of a court-martial in the circumstances setout in the section and regulations.” (emphasis added)

Neither the Appellants’ Counsel nor the counsel for the other parties elaborated on the circumstances under which the courts-martial may indeed have jurisdiction in the category of offences under section 70(4), even if such offences are committed within Fiji. The Counsel for the Appellants view is that because of the use of “shall not” in sub-section (4), the prohibition is mandatory. This Court does not agree for the following reason.

The application of the Army Act 1955 to Fiji is covered under section 23 of the Army Act (Cap. 81). Sub-section (1) provides as follows:

“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 ……” (emphasis added)

It is clear from the wordings of section 23 that the Army Act 1955, while it continues to apply to Fiji, only does so, to the extent that it is not amended by the provisions of the Army Act (Cap. 81) and or any regulations made under it.

The United Kingdom Forces (Jurisdiction of Colonial Courts) Order 1965 which came into operations in Fiji on 10 June 1965 is such a regulation under the Army Act (Cap. 81). Section 3 restricts the jurisdiction of civil courts in “circumstances” which Lord Goddard CJ had alluded to in Regina v. Blake (supra). In particular section 3(1) (b) is relevant which states:

“3 – (1) Subject to the provisions of this section, a person charged with an offence against the law of the Territory shall not be liable to be tried for that offence by a Court of the Territory if at the time that the offence is alleged to have been committed he was a member of Her Majesty’s forces or a member of the civilian component of any of these forces and –

(a)	…

(b)	The alleged offence is an offence against the person, and the person or, if more than one, each of the person in relation to whom it is alleged to have been committed had at the time thereof a relevant association with Her Majesty’s forces;”

In this court’s view the United Kingdom Forces (Jurisdiction of Colonial Courts) Order 1965, and in particular section 3 (1) (b) thereof, effectively negates the application of section 70 of the Act in so far as it purports to apply to Fiji. This means that the category of offences specified in section 70 (4) that is otherwise excluded from courts-martial jurisdiction in the United Kingdom, can still be brought under its powers in Fiji.

In the result this Court finds that the 1st Respondent is able and indeed has the power to try a person subject to military law, with the offence of murder, provided the victim is also associated with the military. The Applicants’ submission that the courts-martial do not have the powers to do so, therefore fails.

ALTERNATIVE REMEDIES

Counsel for the 1st Respondent argues that Habeas Corpus application is misconceived and that the proper procedure available to the Applicants under the circumstance if this case is through judicial review under Order 53.

Without delving into the details of the processes involved, it is sufficient to say that it is well established law that the existence of alternative remedies does not oust the jurisdiction of the court to grant habeas corpus, although it maybe a relevant consideration for the Court in exercising its discretion to grant a remedy: see R v. Secretary of State for the Home Department ex P Mughal [1973] 1 WLR 1113 at 1116. In the circumstances of this present proceedings, the Court is convinced that the Applicants are entitled to come by way of habeas corpus. The liberty of the individual and the need to deal with the matter quickly overshadows the arguments in favour of alternative remedies.

HABEAS CORPUS APPLICATION

For the application to succeed the Applicants have to show a prima facie case that they are being unlawfully detained. Counsel’s argument that s.70 (4) of the Act deprived the 1st Respondent of the authority to detain and try the Applicants for the offence of murder, was intended to show that the detention was unlawful. Alternatively, that the detention pursuant to the 1st Respondent’s exercise of powers under the Act and the Penal Code, had been invalidly exercised making the Applicants’ detention illegal.

However having found that the law does in fact permit the 1st Respondent to try the Appellants for the offence of murder, the burden to justify the legality of the detention, given the affidavits filed by the 1st Respondents, is in the Courts’ view, discharged.

But even if the Court had ruled that the Appellants had been unlawfully detained, Counsel for the Appellants readily concedes that such period of detention ended on 13 February 2003, the date the Applicants were brought before the court-martial and charged for offences other than the offence of murder. The hearing is continuing.

The respondents’ Counsel argues that the Appellants are properly subject to the jurisdiction of the military court and so long as they are before it, this Court lacks the jurisdiction to intervene. Counsel referred to The King v. The Army Council Ex P Ravenscroft [1917] KBD 504 where the judgment of Viscount Reading CJ reiterated the established principles upon which the civil courts are prevented to intervene on matters military. The case was also referred to by Pathik J in Stevens v. The State & Ors. (2001) (Unreported).

While this Court readily concedes that “in matters of military conduct and purely military law affecting military rules for the guidance of officers or discipline generally” (per Viscount Reading CJ: in Ravenscroft (supra) at p.608), the Court may have no power to intervene or interfere, as far as Fiji is concerned, the provisions of the Constitution remains supreme. For example, under section 120, which gives unbridled original jurisdiction to the High Court, a person subject to military law, may have recourse to civil courts where her or his rights under Chapter 4 of the Constitution are alleged to have been infringed. As this Court stated in Railumu v. The Commander of RFMF HBM 81J/2002 (Unreported) as to the status of the Manual and the Queen’s Regulations:

“To the extent therefore they provide for the efficient administration and discipline of the armed forces, they remain valid and properly within the qualifications and or limitations provided under the Constitution. Where, however, in the exercise of the authority under them, actions flagrantly infringe on the rights of a person as an individual, then the issue of the validity or otherwise of such actions are and can properly be raised.”

In this present proceedings, the court-martial has been convened and the hearing has begun. While the Appellants have yet to be tried for the crime of murder, the Court finds that they are properly in the custody of the military by virtue of the charges that had previously been laid against them and for which they are presently before the Court.

The purpose of the habeas corpus proceedings was to release the Appellants from unlawful detention. But the Court, having found that the detention was made by the 1st Respondent in exercise of powers properly vested in him, plus the fact that the Appellants are already before the court-martial for other offences, finds the application if granted will be nugatory.

RULE OF LAW

There remains a disturbing aspect of this and related proceedings which is of grave concern to this Court.

This Court had ordered in HBM 81J of 2002S proceedings, the release of the Applicants on 24 December 2002 on conditions pending the Court-martial, if and when it was to be convened. They were soon apprehended by the 1st Respondent and taken to Q E Barracks at Nabua, where they were charged with the offence of murder and detained to the present day. According to the Counsel for the 1st Respondent the Appellants were released, albeit for a very short duration, thus fulfilling the Court’s order for the release of the Appellants, but re-arrested for the new charge of murder. The Appellants argue that what the 1st Respondent claimed to be the “release” amounted to no more than waiting outside the Court premises until they were re-assembled and transported back up to the barracks. Their re-location from Korovou prison to the Army barracks was completed and shown on the Discharge Book pages of the Prison Department, photocopies of which are annexed to the 1st Respondents affidavits. What exactly transpired on 24 December 2003 following this Court’s Order for the release of the Applicants, remains vague. What is however very clear is that the Appellants were re-arrested, charged with a new offence and continued in their detention.

According to the Counsel for the 1st Respondent, the new charge laid against the Appellants had taken a long time to be prepared as there were difficulties in locating and interviewing the many witnesses. Even when the charge was ready to be laid, the 1st Respondent in his affidavits stated that he did not wish to appear disrespectful to the Court during HBM0018.2002 proceedings, by laying new charges. When questioned whether the 1st Respondent had considered the possibility of amending the Charges and affidavits with leave, Counsel conceded that he was not aware of any discussion on the matter. At any rate, it is the duty of Counsel to disclose to the Court any matters that may have any influence to the proceedings before it. This regretfully, was not done.

The practice of laying fresh charges immediately following an Order of release is not new. Be that as it may, this Court takes a very dim view indeed of such a practice. Especially in situations where the new charge (s) if laid together with the others, may not have had a discernable effect on the Order the Court had made. Our system of justice cannot possibly condone a practice where the freedom of the individual is decided and curtailed by the arbitrariness of decisions of where and when new charges are to be laid following a judicial order for release. If need be, under this practice, prosecution if it so desires, may proceed to frustrate Orders of Court by deliberately holding back additional Charges until release. Such action in effect is an abuse and amounts to circumventing the judicial process. This, in the Court’s view, is sailing very close to contempt. It cannot be allowed to continue especially in the light of the elaborate scheme of the protection afforded the individual under Chapter 4 of the Constitution.

In the present case, it cannot surely engender confidence in our system of justice, if no less than the leading Attorney of the land was reportedly quoted in the media, as condoning if not agreeing to such a practice.

The principles of the rule of law and of equality before the law demands that justice should be administered impartially. It also means respect for, and confidence in, the Courts and its processes. Nothing is more important to the life of this nation, given the turbulence of recent years, then a clear and unequivocal demonstration that the rule of law exists. Its measure, to a great extent, lies not only in the respect and confidence in the system of the administration of justice, but equally in the reverence for and observance of, the individual’s rights and freedom.

The Magna Carta, from where many of our laws are spawned, provides at Chapters 39 and 40, the following classic statement on the rule of law:

“No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any way destroyed, neither will we set forth against him or sent against him, except by the lawful judgment of his peers and by the law of the land.

To no one will we sell, to no one will we refuse or delay right or justice.”

It is the duty of the Courts of this land to uphold the rights of its citizenry. It must remain the guardian and protector of individual liberty. Where there are grey areas to exploit and where usurpers indulge to the detriment of the individual, it is the function of the Courts to bring them to light and for the lawmakers to make amend.

In this case, while the Court agrees that the Appellants are now legally detained by the 1st Respondent subsequent to the proceedings of 24 December 2002, the procedure adopted by the military in laying fresh charges and re-arresting them, when in appears that such charges could easily have been laid together with the others, underlies a very real concern on the ethical consideration of such action. As far as this Court is concerned no action, be it of an ordinary citizen or that of any high office of the land, is unimpeachable as to be out of reach of its powers to intervene. While it is necessary for our armed forces, in the interest of discipline and efficiency, that they are made subject to different rules through legislations, it still requires of them to observe the fundamental principles of justice that are enshrined in the Constitution and for which this Court remains the ultimate arbiter.

For the reasons I have set out above, the application for habeas corpus is refused.

Each party to bear its own costs.

F. JITOKO
JUDGE

At Suva
14 March 2003