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State v Minister for Justice & AG, Ex parte Citizens Constitutional Forum [2007] FJHC 104; HBJ 01.2005 (27 April 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBJ01 OF 2005

BETWEEN

THE STATE

v

MINISTER FOR JUSTICE & ATTORNEY GENERAL
First Respondent

RATU JOPE SENILOLI
Second Respondent

EX-PARTE:
CITIZENS CONSTITUTIONAL FORUM
Applicant

Ms T. Draunidalo with Mr. Willoughby - Counsels for the Applicant
Mr. S. Sharma - Counsel for the First Respondent
Mr. D. Sharma - Counsel for the Second Respondent

Date of Hearing: 17^th April 2007
Date of Ruling: 27^th April 2007

DECISION ON WHETHER TO GRANT CERTIORARI

In my judgment delivered on 28^th April 2006 I had made a finding of perception of bias and made a declaration to that effect. However I had left the issue of grant of certiorari to be considered after I heard the second respondent as it had serious implications for him.

My judgment had been appealed against by the first respondent so there has been a delay as a result. With the change in government the first respondent has I was told now decided to withdraw the appeal.

The applicant states that the court should exercise its discretion and grant the certiorari. It states that the second respondent has not produced any evidence of a life threatening illness now or at any relevant time in the past. Secondly it states that even though it is "not unsympathetic to the personal interest of the second respondent in remaining at liberty", it nevertheless submits that the public interest requires that persons sentenced to serve a term of imprisonment serve their sentences in full. The grant of certiorari would ensure that the executive breach do not undermine the sentences imposed by courts.

Facts:

The facts are succinctly set out in the affidavit of Reverend Akuila Yabaki sworn on the 22^nd March 2007. The second respondent was sentenced to imprisonment for a period of four years on 6^th August 2004. On 26^th November 2004 he was released from prison on a compulsory supervision order.

Prison Regulations:

If the second respondent were to serve his entire sentence then he would be entitled to release on 6^th August 2008. However, this is not usually the case. The Prisons Act makes provision for statutory one third remission of sentence for anyone imprisoned for a period in excess of one month - Section 63 of the Prisons Act Cap 86. On the basis of this provision, if no compulsory supervision order had been made, the second respondent would have been released from prison after thirty-two months that is on 6^th April 2007.

Further there are also provisions of Section 61 of the Prisons Act which gives the Controller powers to allow a prisoner to serve his last twelve months of sentence extra-murally.

Useful Purpose:

Mr. Sharvada Sharma, I am of the view, correctly submitted, that no useful purpose would be served by the grant of certiorari. His submission with which I agree is that certiorari is granted quashing a decision coupled with an order to reconsider afresh. The second respondent has now served his sentence, if his remission is considered. He is now free. With his remission he would have been released on 6^th April 2007.

For a compulsory supervision order to be considered the prisoner must be a serving prisoner and not one who has served his sentence. The passage of time has made the issue academic. In Semi Talawadua v. Commissioner of Police and Attorney General - ABU 54 of 2001 the Court of Appeal did not grant a certiorari as it considered that the passage of time rendered such order inappropriate.

Public Interest v. Prejudice to second respondent:

The second effect of the grant of certiorari, as the applicant states in paragraph 24 of its submissions, is that it would nullify the grant of compulsory supervision order. The relevant authorities would be then required to return the second respondent to prison.

In this situation I have to consider prejudice to the second respondent. The compulsory supervision order is granted on conditions to which a prisoner must comply. The conditions are set out in the Third Schedule to the Prison Regulations which inter-alia require the person concerned to report to his supervisor every month and being unable to change his place of residence without prior permission of his supervisor. He has complied with those orders.

People including those sentenced to imprisonment should be able to organize their lives and plan for the future. A grant of certiorari would cause uncertainty as to the second respondent's future. It would result in serious prejudice to the second respondent if he were now to be incarcerated and four years made to run from now on.

Public interest does not mean that I do not consider the interest of the second respondent.

Accordingly I refuse to grant the certiorari. I make no order as to costs in respect of this application because it was second respondent's lack of interest in the initial proceedings which resulted in court having to go through a second tier of hearing.

JITEN SINGH
JUDGE

At Suva
27^th April 2007