IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO.: HBM 90 OF 2006

BETWEEN

EMOSI QICATABUA
APPLICANT

AND

1. REPUBLIC OF FIJI MILITARY FORCES (RFMF)
2. COMMISSIONER OF PRISONS
3. ATTORNEY GENERAL & MINISTER FOR JUSTICE
RESPONDENTS

FIJI HUMAN RIGHTS COMMISSION
(AMICUS CURIAE)

ADDENDUM TO JUDGMENT

The Applicant had in filing the action joined Fiji Human Rights Commission as one of the respondents. I had ordered that Fiji Human Rights Commission be struck out as respondent and for it to continue as amicus curiae. The Fiji Human Rights Commission has therefore appeared as amicus curiae and not as one of the respondents. So there are only three respondents in this action. The correct citation is as in the heading above.

[Jiten Singh]
JUDGE

At Suva
6th June 2007

IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO.: HBM 90 OF 2006

BETWEEN

EMOSI QICATABUA
APPLICANT

AND

1.REPUBLIC OF FIJI MILITARY FORCES (RFMF)
2.THE COMMISSIONER OF PRISONS
3.THE ATTORNEY GENERAL & MINISTER FOR JUSTICE
4.FIJI HUMAN RIGHTS COMMISSION
RESPONDENTS
Ms B. Malimali for Applicant
Mr. K. Tuinaosara for First Respondent
Mr. G. Bai for Second and Third Respondents
Mr. U. Ratuvili for Fourth Respondent

Date of Hearing: 27th April 2007
Date of Judgment: 22nd May 2007

JUDGMENT

BACKGROUND:

[1] This action was heard together with HBM 96 of 2006 where seven applicants made a similar constitutional redress application. Mr. Vosarogo represents the applicants in HBM 96 of 2006. The respondents in both actions are same. The applicants are all soldiers. They were all convicted and sentenced by the Court Martial for offences relating to take over of Fiji
Parliament in May 2000 and/or mutiny at Queen Elizabeth Army barracks in November 2000. They were sentenced to various terms of prison sentences. They appealed against their sentences to the Court of Appeal but the Court of Appeal ruled that Section 30 of the Royal Fiji Military Forces Act did not permit appeal against sentence. The applicants are challenging the validity of Section 30.

ISSUES:

[2] The fundamental issue in the two consolidated actions is whether Section 30 of the Royal Fiji Military Forces Act contravenes Section 25, 28 and 38 of the Fiji Constitution. Section 30 of the RFMF Act limits the appeal by soldiers convicted by the Court Martial against convictions only. It does not provide for appeal against sentence. Section 30 provides:

"A person convicted by a court martial may, with the leave of the Court of Appeal, appeal to that court against conviction provided that the leave of the court shall not be required in any case where the person convicted was sentenced by the court martial to imprisonment for ninety days or more or to detention for ninety days or more."

APPROACH TO CONSTITUTIONAL ISSUES:

[3] The Constitution is the supreme law of the land. This means that all legislative, executive and administrative organs of the State are subservient to the Constitution. In the event of any inconsistency, the constitution takes precedence and any conflicting law or executive practice is rendered void.

[4] The Bill of Rights fixes certain minimum standards or norms with which the legislative and executive bodies must comply. The courts interpret these rights. In interpreting these rights, the court must take a purposive approach which promotes the purpose or objective of the particular provision in the context of the Constitution as a whole - Section 3 of the
Constitution. Further Section 43(2) of the Constitution mandates that the court must promote values that underpin a democratic society and also consider public international law. Human rights are universal; they do not know national boundaries. They are truly global rights. Accordingly Fiji is obliged to consider international covenants even though it may not have ratified them.

[5] The eminent human right jurist Justice Chaskalson in State v. Makwayane - 1995 (3) SA 391 at paragraph 88 suggested that a generous and purposive interpretation is to be given to a constitutional provision protecting human rights. In this process, the court should not take into account its own moral predilections or public opinion. Instead, it must consider the substance of the fundamental right at issue and ensure contemporary protection of it in the light of the evolving standards of decency that mark the progress of a maturing society. Justice Winter in State v. Leone Vakarusagoli & Others - HAC 23 of 2004 adopted this approach of contemporary marker and granted bail to remanded accused persons.

[6] The Honourable Justice P N Bhagwati in a paper titled domestic Application of Human Rights Norms presented at the Fourth Judicial Colloquium in 1991 recommended that the "approach of the judiciary in the interpretation of human rights should be creative and purposive and the judiciary must adopt an activist goal oriented approach in the interpretation of the fundamental rights embodied in the Bill of Rights or in statutory legislation".

IS SECTION 30 OF RFMF ACT INCONSISTENT WITH SECTION 25 OF THE CONSTITUTION?

[7] The applicants submit or simply assert that Section 30 violates Section 25 of the Constitution which gives a person freedom from cruel and degrading treatment. A term of imprisonment imposed by a Court Martial does not ipso facto render it a cruel, inhumane, degrading or disproportionate treatment.

[8] Section 25(1) provides:

"Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment." It encompasses torture, cruel treatment, inhumane treatment, degrading treatment, cruel punishment, inhumane punishment and degrading treatment. Article 1 of the UN Convention against Torture 1984 describes torture as

"Any act by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him ... a confession, punishing him for an act ... or intimidating him ... or for any reason based upon discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person acting in an official capacity."

[9] Suffering which arises from lawful sanctions is not generally encompassed by this definition. Section 23(1) of the Constitution allows a person to be sentenced to imprisonment by a court. A Court Martial is entitled by law to impose a prison sentence.

[10] Generally this species of right under the Constitutions of different countries is invoked to attack mandatory death sentences: Reyes v. R. (2000) 2 A.C. 259 or legislation which prescribes a minimum term of imprisonment for an offence: State v. Andie Pickering - HAM 7 of 2001 or treatment of convicted prisoners inside the prison: Harding v. Superintendant of Prisons - (2000) 3 CHRLC 128 which held shackling of a prisoner for long periods was unacceptable.

[11] Cruel, inhumane or degrading treatment is looked in terms of proportionality and whether the sentence as legislated would be startlingly or disturbingly disproportionate. To consider this the court would need to look at the offence, the circumstances of the offender and the offence. Article 25 of the Constitution is aimed at providing some measure of protection against punishment which is so disproportionately excessive as to raise serious concern about its propriety. I do not consider that Section 25 in any way assists the applicants.

IS SECTION 30 OF THE RFMF ACT INCONSISTENT WITH SECTION 28(1)(l) OF THE CONSTITUTION?

[12] Secondly, the applicants rely on Section 28(1)(l) of the Constitution. It provides that every person charged with an offence if found guilty has the right to appeal to a higher court.

[13] In the realm of criminal law, upon conviction the obvious concern for a person is what sentence he/she will get. Punishing offenders is one of the objectives of the criminal law but the punishment must be a measured response after considering the circumstances of the offender and the offence.

[14] I am of the view that the right to appeal means a right to full appeal about any issue with which an appellant takes exception with the decision of the primary court. I therefore hold that Section 30 is inconsistent with Section 28(1)(l) of the Constitution.

IS SECTION 30 OF THE RFMF ACT INCONSISTENT WITH SECTION 38 OF THE CONSTITUTION?

[15] I now proceed to consider Section 38 of the Constitution which says that "every person has the right to equality before the law".

[16] The source of this section lies in the American Constitution and the UDHR. Article 7 of the UDHR provides:

"All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination."

[17] Article 26 of the International Covenant on Civil and Political Rights also provides a similar message. It states:

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

[18] What our Constitution envisages is right to equal treatment in similar circumstances unless a discriminatory provision is based on a reasonable basis. By a reasonable basis is meant that the classification must be rational and not arbitrary. The classification must be based upon an intelligible differential which separates those who are grouped together from those who are excluded. That differential must have a rational explanation for the objective to be achieved by the law under challenge. Classification therefore, which is unreasonable, is open to challenge.

[19] Few professions are as dependent on discipline as the army. Though the army consists of a collection of individual soldiers, it is a single entity. The personal interests and concerns of individuals are subservient for the collective good, needs and purpose. Good leadership and discipline underpin the operational effectiveness of the army.

[20] The Royal Fiji Military Forces Act Cap 81 sets out the law regarding recruitment, discipline, trial and punishment of all serving soldiers. In Peni Naduaniwai v. The Commander, Fiii Military Forces & the State - HBM 32 of 2004 Justice Winter considered the relevant provisions of the RFMF Act and concluded that the UK Army Act 1955 together with all the amendments or replacements was to be taken as the contemporary law for courts martial in Fiji but these have to be seen through "the prism of the Fiji Constitution and RFMF Military Law to gauge their applicability for breach of Section 29". He was considering Section 29 of the constitution the right to fair trial provision. However his comments apply equally to any Bill of Rights provisions. What Justice Winter emphasized in his judgment was that no law in Fiji ought to contravene the Constitution.

[21] The Army Act provides that soldiers are liable for criminal offence committed by them - Section 70 of the Army Act. In addition they may be dealt with for numerous offences which are unique to the army - like mutiny, desertion etc.

[22] Section 39 refers to every person. It is not confined to Fiji citizens. Whoever is in Fiji be it temporarily or on a long term basis is entitled to the protection of this section. The Court Martial in terms of hierarchy, to use the term loosely, stands on par with the High Court. A person who is convicted and sentenced by the High Court for a criminal offence has right of appeal against both conviction and/or sentence to the Court of Appeal. It does not stand to reason that simply because a person happens to be a soldier and sentenced by a Court Martial, he should be given a lesser justice. As the Army Act stands now a soldier has no recourse to justice even if the sentence imposed is outrageously excessive or even if the Court Martial does not consider his mitigatory circumstances. Section 30 discriminates against a soldier purely because of his profession.

[23] I am of the view therefore that Section 30 of the RFMF Act is not compliant with Section 28 of the Constitution.

REMEDIES AVAILABLE:

[24] Having come to the above conclusion, what can the court do and what powers does it have. The answer lies in Section 41 (3)(a)) of the Constitution. It enables court "to make such orders and give such directions as it considers appropriate". These are general words and give broad powers to the court.

[25] Section 30 of the RFMF Act was considered by Justice Scott in Mosese Vakadrala v. the State - AAU 20 of 2004 and he found non availability of appeal against sentence a "most unfortunate lacuna in the law". He requested for a copy of the judgment to be forwarded to the Solicitor General and to the Fiji Human Rights Commission presumably in his firm belief that they would prompt the legislature to rectify the lacuna. Similarly the President of the Court of Appeal Justice Ward in Vakaceretini & Others v. Commander Royal Fiji Military Forces of AAU4/2005 also expressed grave misgivings about the non-availability of appeal against sentence to soldiers convicted and sentenced by Court Martial. He expressed his views in the penultimate paragraph as follows:

"Clearly the establishment of special military laws and courts is a necessary consequence of the special nature of military service and the need for strict and constant discipline means that many offences regarded as minor in civilian society must be treated more seriously in the armed forces. Consequently, the court of Appeal may not be considered the most suitable body to review the severity, as opposed to the propriety, of sentences passed by Courts Martial but, whichever is the appropriate body, it would be in accordance with the spirit of the Constitution to provide a right of appeal to an independent tribunal against sentence in cases tried under the RFMFAct."

He too requested for a copy of the judgment to be forwarded to the Solicitor General with recommendation for amendment.

[26] However, the section has remained unamended. There are two possible courses of action open to me - one is a declaration of incompatibility and second is to read into the legislation.

Declaration of Incompatibility:

[27] Section 41(3) of the Constitution, expressed in the broad language as it is, surely can encompass a grant of declaration. The declaration would state that Section 25 of the RFMF Act was incompatible with or contravenes certain named provisions of the Constitution. If this court could not grant such a declaration, that would be a constitutional dead end.

[28] I have to bear in mind the legislative inactivity since Justice Scott's decision delivered on 18th June 2004 in considering what remedy to provide.

[29] Counsel for the Attorney General expressed no reservations about the suggestions for reform expressed by the two appellate judges. He has not even told me if the matter was considered or debated at any level be it sector committee or cabinet. No urgent consideration appears to have been given to amendment. The matter was not complex. The chance for amendment has slipped and slipped badly. I am surprised that the legislature had not given consideration to the issue for such a long time.

[30] Now with the current political situation in Fiji, with Parliamentary sittings in an indefinite limbo, the declaration of incompatibility I believe will serve no purpose and will be meaningless as far as these applicants are concerned.

Reading in Words into Legislation:

[31] Can I take the bolder route of reading into the legislation? Counsel for applicants have invited me to read into the section "and sentence" after the word conviction in Section 30. The second and third respondents support such reading in. The first respondent, while conceding that soldiers in principle should be allowed to appeal against the sentence, nevertheless is of the view that such amendment should be done by legislature. Mr. Tuinaosara submitted that the case dealt with the peculiar situation of the military and none of the cases relied upon by the applicant's concerned military issues. He submits it is unwise to import legal principles from other jurisdictions without a detailed knowledge of their social conditions. In short, Mr. Tuinaosara says courts ought not to legislate.

[32] The Constitution in Section 2(2) provides that "any law inconsistent with this Constitution is invalid to the extent of the inconsistency". This provision acts both prospectively and retrospectively. Thus laws existing prior to the present Constitution have to be consistent with it. "Reading in" words into legislation is not a new phenomenon in Constitutional Redress applications. In Schacter v. Canada (1992) 93 DLR (4th) 1 the Supreme Court of Canada held that a court may in appropriate circumstances read words into a statute.

Section 43(2) requires a strong creative interpretation:

[33] Section 43(2) deals with interpretation of the provisions of Bill of Rights. It directs the court to consider promoting values that underlie a democratic society. It does not deal with amendment. The amendment of the primary legislation is left to the legislature. The Constitution maintains the separation of powers between the three arms of the State. Section 45 clearly provides that the power to make laws vests in the Parliament. Therefore interpretation of statutes is a matter for courts; the enacting and amending of statutes is a matter for Parliament.

[34] The real problem lies in deciding where interpretation ends and amendment begins. The line between the two is very thin indeed. The courts in the modern age take a purposive and more liberal attitude towards interpretation which in some cases may be considered as intruding into the realm of the legislature. In Re. S.(Care Order Implementation of Care Plan) (2002) 2 AC 291 at 313 Lord Nicholls of Birkenhead in considering the dividing line between interpretation and amendment stated that "a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate".

[35] If there were a multiple alternative policy considerations which were involved, then the court is not well equipped to choose between them. Any interference in such a case with the primary act would be amendment I believe.

[36] Section 43(2) and Section 3 of the Constitution enable or require courts to interpret legislation expansively or permissibly as far as Bill of Rights are concerned. The Spirit of Section 43(2) is captured if a court in proper cases were to read in words which change the meaning of a provision in a legislation to make it Bill of Rights and International Conventions compliant. I am of the view that the Section 43(2) demands of courts and imposes an obligation to take a stronger approach than mere purposive interpretation when interpreting Bill of Rights provision. The court can take a radical rather than a purely purposive approach when considering rights provisions. Justice Bhagwati advocated a creative and purposive and a goal oriented approach. The Court has a duty within the bounds of the Constitution to provide effective relief for infringement of any rights even if it means shaping innovative remedies. Without effective relief the values underlying the rights provided in the Bill of Rights cannot be promoted - National Coalition for Gay and Lesbian Equality v. Minister for Home Affairs (2000) (2) SA 1. There too the constitutional Court of South Africa consisting of eleven member panel used the device of reading into legislation to make it compliant with the Constitution.

[37] One of the limiting policy factors to be considered is whether the interpretation taken has serious budgetary considerations for the State.

"In National Coalition for gay and lesbian equality & others v. Minister of Home Affairs & others [1999] in upholding the applicants' appeal, it was held that:

(11) Where the invalidity of a statutory provision results from an omission it is not possible to cure it by national severance. The only appropriate remedy is to 'read in' words to cure the invalidity, keeping in mind the obligation not to trespass onto the part of the legislative field which has been reserved to the legislature (Knodel v. British Columbia (MEDICAL Services commission) (1991) 91 CLLC (Can BC SC) considered).

(12) Reading -in or severing words from a statutory provision must be consistent with the Constitution and its fundamental values and the result achieved must interfere with the laws adopted by the legislature as little as possible. In our society where the statute books still contain many statutory provisions enacted by a Parliament not concerned with the protection of human rights, the first consideration will in these cases often weigh more heavily than the second.

(13) Reading -- in ought not to be undertaken where it would result in an unsupportable budgetary intrusion, which should be determined by reference to the relative size of the group which would be added to the group already enjoying the benefits. Where reading-in would sustain a policy of long-standing or one that is constitutionally encouraged, it should be preferred to removing the protection completely (Tsotetsi v. Mutual & Federal Insurance Co Ltd 1995 (11) BCLR 1439 (SA CC) considered)."

CONCLUSIONS:

[38] Reading in the words "and sentence" will only promote full right of appeal for those sentenced by court martial; it will impose no additional burden on the State. The soldiers would on appeal be able to submit why they think their sentences are harsh or excessive and the state of course will have opportunity to put its view forward. All the parties agree that soldiers, should be allowed to appeal against sentence. The only difference is whether it should come through Parliament or whether the court can read into legislation. Given the historical state the Parliament is in at present, leaving the amendment to Parliament is to delay justice to the applicants. In fact the application would become meaningless as by the time the amendment, if it arrives, the applicants will have served their sentences. I conclude therefore that Section 30 of the RFMF Act by failing to provide an appeal against sentence is inconsistent with Section 28(1)(l) and Section 38 of the Constitution.

[39] Accordingly I read the words "and sentence" after the word conviction in Section 30 of the RFMF Act and to come into effect from this moment.

Jiten Singh
JUDGE
At Suva
22nd May 2007