Fiji Law Reports

I am nnvinced in thin the belief honestly held by a number of my colleagues that the learned Magistrate has a number of shortcomings and which include:-

i0;  ټ ټ th0; that there is a is a demonstrable lack of knowledge and appreciation of trite principles of law andtice rticuertaining e rul evid principles of evidence; onus of p of proof,roof, burd burden ofen of proo proof,

ii)  &##160;ـ< < & ; t1at&#here is a is a perceperceived outward hostility towards lawyers who make it plain the preiveds helthe Mrate t only untenable but outwardly erroneous;

iiip>iii)&#16)&#160 &< &160;&#160 ¦҈&< < n&#the arrogant attituttitude and impatience displayed towards Counsel and accused persons;

iv);&# &ـ҈  ټ the lack lack of understanrstanding ding and aand apprecppreciation of difficulties of Counsel witultanengags in igh Court or Fiji Court of Apof Appeal;

v)  t &#160  n&##10;& &#1ack of undersnderstandinanding o private practice generallerally;

vi) ـ&##160;;ټ&#160 ـ&; g cts ents and asnd aski asking qung questioestions prns prejudiejudicial to the defence and giving the ouhe outward appearance of being pro prosecu
&

viip)&#1i) &##10;& &##1600;&#1eporteportfrequerequenting ting the othe officeffices of the Director of Public Prosecutions.

I have as a focollecolleague and as a pract lawyised issues directly with MagisMagistratetrate in C in Chambers earlier this year in the hope that there would be some improvement in the forseeable future. ttably, this has not been teen the case. The details of that meeting I will not document but needless to say the foregoing points encapsulate in summary form the issues that I had raised.”

Subsequently a meetin awas arranged which is described in applicant Mehboob Raza’s affidavit at paragraph 5 as follows:-

“5. ; < That becof the continuooblproblem faced by the other Counsels a peta petition was sent to the Chief Magistrate and on or about 22 October 199eetin held the Chief Magistrate, Dr. Ilangasingheinghe together with solicitors Mr. Suruj Pruj Prasadrasad Sharma, Mr. Tevita Fa, Mr. Haroon Lateef, Ms. Tamara Jayatilleke and myself. That at that meeting specific allegations were outlined with full particulars by all the solicitors present and Dr. Ilangasinghe was given an opportunity to explain and respond to the allegations.”

The problems that hasenrisen between the applicants and the learned Magistrate could have been avoided if everyone had acted strictly objectively and professionally in the interest of the judicial system. With some reluctance I must say that the Chief Magistrate and the learned Magistrate were not entirely free from blame for the sorry state of affairs that had occurred. I feel certain they could have helped to resolve the problem if they had taken decisive action in what should have been a straightforward procedural matter. It got out of hand because the question of transferring cases from one magistrate to another was treated somewhat loosely or rather informally when proper observance of court procedures and practice was called for. Both judicial officers concerned in this matter should have required all applications for transfer of cases to be dealt with by motions and affidavit. This would have allowed the merit of each application to be properly examined and ruled upon. This would have allowed an aggrieved person from any such ruling to take the matter further on appeal and thereby vindicate the integrity of the legal process and the judicial system. Apart from this there was also the well-established court procedure enabling an application to be made calling on a magistrate to disqualify himself or herself from taking on a case upon proper cause being shown. The appeal process was there to ensure further judicial scrutiny of controversial issues. The importance of following proper court procedure and practice cannot be overemphasized as the circumstances disclosed by the present case clearly demonstrate.

As re the allegations oons of incompetence and misconduct against the learned Magistrate, these also could have been directed to folloper channels which in this case would be through the well-established disciplinary proceduocedures administered by the Judicial and Legal Services Commission. It was clearly quite inapt for those allegations to have been directed to the Chief Magistrate who lacked the disciplinary powers to act positively and effectively in the matter. It was against this background of hostility against him that had no doubt prompted the learned Magistrate to exercise his judicial power and issued his Ruling on 10 December 1996, the subject of this application. No one except the learned Magistrate had known beforehand about the preparation of that Ruling. As it turned out the Ruling adjudged the applicants guilty of the offence of contempt of court. The applicants were not given any notice about the likelihood that those findings would be made against them nor any opportunity given to them to contest the findings. The Ruling which ran into 21 pages dealt with extensively with the procedure for transferring cases within the magistracy and concluded with the findings that the applicants had committed acts of contempt within section 136 (1) (h) and (m) of the Penal Code.

The que may well be aske asked why the learned Magistrate decided to exercise his judicial power to make those findings in the manner he did. It is possible he may havn actuated by his concern and disappointment over the persipersistent hostility of the applicants and other lawyers towards him and towards the performance of his duties. Be that as it may, and much as one may understand his difficulties, it was however no reason for him as a judicial officer to adopt a modus operan hi/i>his Ruling that was contrary to law. In these circumstances I would have to agree with the general sentiment expressed somewhat loosely in the grounds for judicial review filed pporthe application whon which were as follows:-

&#8i) &#160t tha said Ruling of t of the said learned Magistrate is null and void and of no effect on the basis that the learned Magistrate failed to accord to tplicarocedfairness berminheir guilt without hout any oany or anyr any real real oppo opportunity to present their answer and defence to the charge as found proved beyond reasonable doubt pursuant to s136(h)(m) of the Penal Code Cap 17.

(iip < Thatsaid Ruling of the saie said learngistrate is void and in excess of the jurisdiction conferreferred upon the learned Magistrate under the Magistrates Court Act, Cap 14, the&#160ref="//wwwii.org/fj/legis/consol_act/_act/pc66/pc66/">Pen">Penal Code; Cap 17 and the Criminal Procedure Code, Cap 15, thereby rendering it a nullity;

(iii) &ـ T6atsaiatsaid Ruli Ruling of the said lead learned Magistrate is null and void in that it is based on alleged factual premises which fails to identith pion oall tecise acts or conduct of the the AppliApplicantscants whic which gave rise to the finding of contempt;

(iv)ټ < That the ed Magistrate acte acted in bad faith by his clear abrogation of the Rules of Natural ce in his determination to charge and hear the proceedings and publish his Ruling as he dide did;

(v0; Tha reasons given in the Rthe Ruling are tantamount to no reasons on account of it literally being festooned with thrned trate7;s pcupato makitrary, capricious, unfair, unreasonable, irra irrationational andl and mali maliciouscious find findings with respect to the Applicants such findings having no basis in fact or law and thus in excess of jurisdiction such to render them a nullity;

(vi60; &160; That the said ed Magistratstrate erred in taking into account irrelevant considerations and faito take into account relevant considerations;

(ix) <;
h0; Thet the said learneearned Magistrate was actuated by malice and/or bias and/or had predetermined the matter pertaining to the Applicants;

(x)ⶌ&##160;;160;; That the thd said learnlearnlearned Magistrate had acted contrary to the legitimate expectations of the Applicants.

As re the nt aption then the court is not concerned with thth the merits of the Ruling itself. It is t is concerned only with the manner, that he decision-making process by which the learned Magistrate arrived at his findings in his Rhis Ruling. In my view it was mainly in that respect that the learned Magistrate misdirected himself in his adjudication against the applicants. He breached the rules of natural justice by not giving proper notice to the applicants of his intended action as encapsulated in his Ruling. Nor did the learned Magistrate accord the applicants any opportunity to defend themselves against his findings which were clearly adverse to their interests. The learned Magistrate was under a legal duty to afford them such an opportunity. The essence of judicial review is to ensure that the decision-making process by a court or tribunal was done according to law. Basic to this concept is the requirement that every person who becomes the subject of judicial or administrative scrutiny must be accorded procedural fairness. As was said in the case of Chief Constable of North Wales Police v. Evans [1982] ER 141 at 143:<143: