Naba v State [2001] FJLawRp 51; [2001] 2 FLR 187 (4 July 2001)

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SAILASA NABA, PAULA KUBU, MACIU NAWAI, NIKOLA WAQA BAINIVALU & SIKELI SIVOI v STATE

Constitutional Law – fundamental rights – interpretation - Constitution a living instrument – Constitution sets a high standard and expectation of progressive development of human rights and fundamental freedoms - Constitutional Law - Trial within reasonable time – discussion of factors that constitutes reasonable time – complexity of case – conduct of the defence and prosecution – delay for prosecution is State's responsibility - non compliance of block at Natabua Prison with UN Standard Minimum Rules - treatment of applicant for 18 months amounts to cruel, inhuman and degrading treatment - breach of constitutional rights of presumption of innocence – 1997 Constitution preamble, ss2(1), 3, 7(2), 21(2), 21(4), 25(1), 27(1)(f), 27(4), 28(1)(a), 29(3), 43(2); Penal Code ss199 and 200; Prisons Act; Prisons Regulations reg. 121(f)

Bail - remanded accused awaiting murder trial – Principles in grant of bail – primary delay over 18 months – presumption of innocence - nature of evidence disclosed in the depositions - court's considerations of International Convention affecting the particular right under consideration - grounds - 1997 Constitution ss25(1), 41(1), 41(3); Criminal Procedure Code s108(4)

Five applicants, remanded on a charge of murder at the Natabua Prison Remand block for 1½ years prior to application, applied again for bail, on the basis that there was no evidence of murder, and the delay in the trial. An earlier application for bail had been refused, with the proviso that if the trial did not proceed expeditiously, the Court would have to reconsider the issue. As the application was based on the Constitution section 25(1), the Court invited the Fiji Human Rights Commission as amicus curiae. It also requested inspectors from the National Occupational Health and Safety section of the Ministry of Labour and Industrial Relations to inspect and report on their findings on the remand block. The Court also visited the complex to inspect conditions. It found that State submissions that the overcrowding situation was temporary untrue. The Court interpreted the bail provisions in light of fundamental human rights principles. The Court looked at the bill of rights provisions of the Constitution in a liberal and purposive way. It noted that the Constitution is a living document, and all other laws are measured against it. The Court examined case authorities on the right to a fair trial within a reasonable time and on bail. The Court analysed statistics of homicide cases filed at the Lautoka High Court and found that of 18 cases, 12 accused either pleaded guilty to manslaughter or were found guilty of manslaughter after trial. 6.3% of all cases resulted in life imprisonment sentences. The Court observed that the guideline United Nations Standard Minimum Rules for the Treatment of Prisoners (the Standard Minimum Rules) required minimum floor space and cubic content of air for each prisoner, adequate sanitary facilities, clothing which shall be in no manner degrading or humiliating, provision of separate bed and provision of food of nutritional value adequate for health and strength. From affidavit evidence the Court deduced that the conditions did not meet minimum standards. It affirmed previous findings of a 1980 Royal Commission on Treatment of Offenders. It queried the definition of 'prisoner' in the Prisons Act to include those unconvicted of any offence. The Court commented that even where derogations are allowed under the Constitution, such as a state of emergency, the law was invalid to the extent of any inconsistency. Concluding that the conditions offended the minimum standards as well as their constitutional rights under s28(1) of the 1997 Constitution, the Court recommended the closure of the Remand block at the Natabua Prison complex for the purpose of detaining persons awaiting trial.

Held–(1) The 1997 Constitution sets a high standard and expectation of progressive development of human rights and fundamental freedoms. It embodies the will of the people and must be allowed to develop with the values and aspirations of the people, including social and cultural developments, and understanding, promotion and content of particular human rights, while being sensitive to democratic values based on freedom and equality, and popular expectations. The right to trial within a reasonable time is a fundamental right recognised both in international conventions and in the 1997 Constitution. What is reasonable time or when is delay inordinate and subject to presumptions in favour of charged persons depends on the complexity of the case, the conduct of the defendants and the conduct of the prosecuting authorities. The State is responsible for the delays attributed to the prosecution or the Court, such as closure by the occupational and health and safety inspectors of the criminal courts, causing all criminal trials to be aborted, systemic delays such as understaffing, workload of the Court and shortage of resources.

(2) Bail for murder can be granted only in exceptional circumstances of delay, exceeding 12 months. Relevant considerations will include the presumption of innocence, whether or not it is probable that the accused will appear to stand trial, the nature of prosecution evidence weighed against a State submission of a prima facie case to answer, and a judicial discretion but each case must be looked at on its own facts.

(3) The treatment of prisoners and detainees on remand have not met the minimum guideline United Nations Standard Minimum Rules for the Treatment of Prisoners (the Standard Minimum Rules) for accommodation, where detainees are crowded 3 to a cell, there is insufficient natural light for reading, foam mattresses are thin and inadequately covered, blankets are inadequate, where detainees are released our of their cell 2 hours a day, where detainees use a bucket system for relieving themselves, where there is not provision for education or training and staff constraints result in a restriction of privileges. The treatment, together with the length of time detainees have been held pending trial, breaches the Applicants' Constitutional right to be free from cruel, inhumane, degrading or disproportionately sever treatment or punishment and the presumption of innocence guaranteed by s28(1). The Courts cannot condone breaches of the constitutional provisions ss27(1)(f) and (4) for a fair trial within a reasonable time and to be treated with humanity and inherent dignity.

Obiter dictum – On analysing the results of murder cases filed at the Lautoka High Court from 1995 to 2000, it is questionable why the Courts have deemed the charge of murder as a special category of offence, where 12 of 18 accused on murder charges either pleaded guilty to manslaughter or were found guilty of manslaughter after trial.

Each applicant granted bail on conditions: on his own recognisance for $500.00, with a surety each for $500.00; to report to their nearest Police Station once a week; to reside at a fixed address to be provided to Court and not to change their residence without informing the Police; not to communicate with or interfere with any Prosecution witnesses and to appear in Court at its next Criminal session.

[note: The accused were subsequently convicted and sentenced to 12 months imprisonment suspended for 2 years. A Bail Act 2002 26/02 has been promulgated, in close terms to a repealed Bail Decree 2000. A Prisons and Corrections Services Act 2006 2/06 was also promulgated. By section 2, the definition of 'prisoner' reads: "means all prisoners incarcerated in a Fiji prison, including unconvicted prisoners and civil prisoners." This case is commented on in (2005) 1 PHRLD 20.]

Cases referred to in Judgment
A Juvenile v The State [1989] LRC (Const) 774 Supreme Court of Zimbabwe
Abdolla v Netherland 20 E HRR 585
Adesh Singh & Ors. v The State (1988) 34 FLR 1
Bechu and Another v Reginam (1962) 8 FLR 240
Hunter v Southam Inc. Supreme Court (1985) 11 D.L.R.(Canada)
Minister of Home Affairs and Anor. v Fisheries & Anor [1979] UKPC 21; [1980] AC 319
Mukon v Cameron CCPR/C/51/D/458/1991
Nawaz Sharif v President of Pakistan [1993] PLD SC 473
NTN Pty Ltd and NBN Ltd v The State [1988] LRC (Const.) 333 Supreme Court of PNG
Orchin v UK 6 E HRR 397
State v Anthony Stephens and Apaitia Seru (1998) 44 FLR 165
State v Felix Keath Vusonitokalau HAC 0005/96S
State v Iowane Taroga and Tevita Rosadriwa HAC 0015/94S
State v Peniasi Kata [2000] HAC0009/94L 10 May 2000
State v Vijay Kapoor and Kailesh Chandra (1996) 42 FLR 58
Surya Prakash v Shirley Reshmi Narayan HBA 000IJ/99
Taito Rarasea v State (2000) 2 FLR 27
Timoci Naisake and Saula Matavucu v State [2001] HAM 001/00S Ruling 31 January 2001
Ziminernam & Steiner v Switzerland [1983] ECHR 9; 6 E HRR 17

Other materials considered in the judgment
Advisory Mission on the Treatment of Offenders (Fiji Legislative Council Paper 1 of 1967)
Article 19: The Interpretation of Fundamental Rights Provisions—international and regional standards in Africa and other common law jurisdictions, London. 1997 p2
Background Paper to a Review of the Prisons Act and Subsidiary Legislation (Fiji Law Reform Commission Paper No. 5)
Covenant Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Crime, Deviance and Delinquency in Fiji, Adinkrah M (1995) Fiji Council of Social Services in Association with Asia Crime Prevention Foundation, USP Fiji Prisons Service
Royal Commission on Treatment of Offenders Suva, Fiji 1980 Part I pp41-42
The Report of the Ombudsman (Justice Moti Tikaram). Into the Allegations of ill-treatment at Naboro Maximum Security Prison 31st May 1978 (Parliamentary Paper No 37 of 1978)
'Too Many Prisoners", English Parliamentary All-Party Penal Affairs Group Report, June 1980
United Nations International Covenant on Civil and Political Rights Arts.9(3), 10
United Nations Standard Minimum Rules for Treatment of Prisoners (Standard Minimum Rules) r.12
United Nations Universal Declaration Arts. 5, 11(1).

Kitione Vuataki for the Applicants
Davendra Prasad for the Respondent
Shaista Shameem for the Proceedings Commissioner, Fiji Human Rights Commission (Amicus Curiae)

This is an application for bail by the 5 Applicants. The 5 Applicants have been remanded at the Natabua Prison Remand block since 15 December 1999 for the charge of Murder-contrary to Sections 199 and 200 of the Penal Code. The applicants had earlier applied for bail in October 2000. That application was refused. The application was made on the basis that there is no evidence of murder in the depositions, and the delay in the Applicants' trial. In its ruling in October 2000 this Court had indicated that there were no special reasons to bail the accused persons then. However, the Court further stated: "if their trial does not proceed expeditiously in future the Court will have to reconsider, the issue" (p2).

The current application for bail is based on Sections 25(1) and 29(3) of the Constitution of the Republic of Fiji. Whether it is for a breach of constitutional rights or otherwise the High Court has jurisdiction to entertain any application for bail. Section 108(4) of the Criminal Procedure Code (as amended) states:

(a) in its original jurisdiction grant or refuse bail upon such terms as it considers just."
The High Court has under Section 41(3) of the Constitution "original jurisdiction: (a) to hear and determine applications under subsection (1)... Under Section 41 subsection (1):

"If a person considers that any of the provisions of this Chapter has been or is likely to be contravened in relation to him or her (or, in the case of a person who is detained, if another person considers that there has been, or is likely to be, a contravention in relation to the detained person) then person (or the other person) may apply to the High Court for redress."

The applicants are detained persons, that is, "persons deprived of personal liberty as a result of conviction of an offence" (UN Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment).

Due to the nature of the application, dealing as it were with the Bill of Rights provisions in the Constitution of the Republic of Fiji Islands, the Court, by consent of the parties, invited the Fiji Human Rights Commission (FHRC) to intervene as amicus curiae in proceedings. The Court is grateful for the comprehensive submissions made by the learned Counsel for the Applicants, and Dr. Shameem for the Fiji Human Rights Commission. The extensive materials on international instruments and other documents submitted by the FHRC greatly assisted the Court.

The Court has before it the Affidavits of Kemueli Qoro, a litigation officer, on behalf of the applicants. In response the state filed 2 affidavits - i) by Oliver Fisher, the Officer-in-Charge of the Natabua Prison; and ii) by Dr Petero Qauqau, a doctor of the Old People's Home at Natabua, who also visits the Natabua Prison once a week to examine prisoners.

In addition the Court had also requested the National Occupational Health and Safety Inspectors from the Ministry of Labour and Industrial Relations to inspect and report on their findings on the Remand block. The Court also visited the Prison complex to view the conditions in the Remand block.

In his affidavit on behalf of the Applicants (para 4) Kemueli Qoro complains the inhumane conditions faced by the applicants, in particular:

4.1 That one prison cell is shared amongst the three prisoners at Natabua Remand Block and

The officer in charge of the Natabua Prisons admits the above in his affidavit in reply. He further states: "That I verily believe that each cell block housing three prisoners is over-crowded and not suitable for healthy human survival."

In his submissions learned Counsel for the applicants relies essentially on two fundamental provisions of the Bill of Rights (Chapter 4) of the Constitution. These are:

"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."

"Every person charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time."

In interpreting these provisions it is evident that they need to be considered within the evolving human rights jurisprudence both in Fiji and internationally. Section 3 and Chapter 4 of the Constitution mandates us to promote democratic values based on freedom and equality. In our interpretation of human rights we are obliged by the Constitution to consider social and cultural developments, and developments in the understanding, promotion and content of particular human rights. The Court will now see the basis of constitutional and fundamental rights interpretation to consider the Applicants' complaints about the breach of their rights.

CONSTITUTIONAL INTERPRETATION AND FUNDAMENTAL RIGHTS
In Fiji and most Commonwealth countries the Constitution is the Supreme law. Our Constitution itself states: "This Constitution is the supreme law of the State" (Section 2(1). All institutions of the State - the Parliament, Executive and the Judiciary - are bound by it. The Bill of Rights provisions (Chapter 4) containing what are termed fundamental human rights are part of our Constitution. As the supreme law, reflecting the will of the people, the constitution is a document requiring special rules of interpretation. As the Privy Council declared, a constitution was:

"sui generis, calling for principles of interpretation of its own, suitable to its character ... without necessary acceptance of all the presumptions that are relevant to legislation of private law ...." (Minister of Home Affairs & Anor. v Fisher & Anor. Appeal from the Court of Appeal of Bermuda, [1980] ACS 19 at 329 (Lord Wilberforce).

"This is in no way to say that there are no rules of law which should apply to the interpretation of a constitution. A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and the usages which have given meaning to that language. It is consistent with this, and with the recognition that rules of interpretation apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full effect to those fundamental rights and freedoms with a statement of which the Constitution commences (opcit p. 329).

It is quite evident from perusing case law from the Commonwealth and jurisdictions having Bill of Rights provisions that interpretation needs to give fall to the fundamental rights, taking a very liberal and purposive approach. As the law the constitution is owned by the people. It does not change with governments, an election. It provides the framework for governance. It limits the powers of organs. All other laws have to be tested against it. Reflecting as it does the embodiment of the will of the people it must be allowed to develop with the values and aspirations of the people "taking into account new social and political realities which may whittle down the full recognition of their rights" (ARTICLE 19: The Interpretation of Fundamental Rights Provisions—international and regional standards in Africa and other common law jurisdictions, London. 1997 p.2).

"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is enacted and easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the exercise of governmental power and, when joined by a bill or charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed and amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions bear these conditions in mind" (Hunter v Southam Inc. Judgment of the Supreme Court of Canada (1985) 11 DLR (4th) 641 (SCC) at page 649 (Dickson J).

In interpreting the fundamental rights provisions of the constitution courts have to recognise that a constitution is a living instrument. As the High Court of Tanzania has stated: "A constitution is a living instrument which must be construed in the light of present day conditions" (Muhozya v The Attorney-General. Judgment of the High Court of Tanzania (DSM) Civil Case No 206 of 1993 (unreported) p2). The Supreme Court of Pakistan has further stated:

"...Basic or fundamental rights of individuals which presently stand formally incorporated in the modem constitutional documents, derive their lineage from and are traceable to the ancient Natural Law. ...They require to be construed in consonance with the changed conditions of the society and must be viewed and interpreted with a vision to the future" (Nawaz Sharif v President of Pakistan Judgment of the Supreme Court of Pakistan, PLD 1993 SC 473).

The whole tenor of the case law on the interpretation of fundamental rights emanating from constitutional cases around the Commonwealth is one of growth and development. The spirit of the constitution is to be adopted. The constitution is meant not only for this, but future generations. Its interpretation must reflect changes in society. What may have been condoned previously may not be condoned today. On a point of issue before this Court the Supreme Court of Zimbabwe observed:

"a penalty that was permissible at one time in our nation's history is not necessarily permissible today. What might not have been regarded as inhuman and degrading decades ago may be revolting to the new sensitivities which emerge as civilisation advances". (A Juvenile v The State, Judgment of the Supreme Court of Zimbabwe, [1989] LRC (Const) 774 at 787).

The philosophy adopted in our Constitution and the Bill of Rights chapter are very much in the tradition embedded in the case law summarised above. As the Constitution itself mandates, in the interpretation of a provision of the Constitution we need to take "...into account the spirit of this Constitution as a whole...". It further mandates us to regard "...the context in which this Constitution was drafted and to the intention that constitutional interpretation take into account social and cultural developments". More specifically in relation to human rights it mandates us to regard especially "developments in the understanding of the content of particular human rights; and developments in the promotion of particular human rights" (section 3). As far as the Bill of Rights (Chapter IV) is concerned "...the courts must promote values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law applicable to the protection of the rights set out in this Chapter" (section 43(2)).

The above specific mandates need to be situated in the wider context of the preamble to the Constitution which, amongst other things, acknowledges:

"Committing ourselves anew to living in harmony and unity, promoting social justice and the economic and social advancement of all communities, respecting their rights and interests, and strengthening our institutions of government": and

Reaffirming our recognition of the human rights and fundamental freedoms of all individuals and groups safeguarded by adherence to the rule of law, and our respect for human dignity..."

Further, in the Compact (Chapter 2) of our Constitution "The people of the Fiji Islands recognise that, within the framework of this Constitution and the other laws of the State, the conduct of government is based on the following principles:

"(a) The rights of all individuals, communities and groups are fully respected;...."

While the preamble and the compact are non-justiciable they do reflect the spirit and purpose of the Constitution. As Section 7(2), on the Application of Compact, states:
"In the interpretation of this Constitution or a law made under this Constitution, consideration must be given to those principles, when relevant".

The case law from around the Commonwealth take a similar approach see, for example, NTN Pty Ltd and NBN Ltd v The State (Supreme Court of PNG [1988] LRC (Const.) 333).

For the judiciary in Fiji the Constitution sets high standards and high expectations in the promotion and progressive development of human rights and fundamental freedoms. For us there is no luxury of a declaratory theory of law. We need to be dynamic and creative, sensitive to popular expectations and democratic values. As was stated by a professor of law:

"Adjudication, as a form of democratic power, stands tinged with incredible popular expectations. Magistrates and Judges are expected not just to use their power wisely and well; they are also expected to accelerate the pace of historic transformation in state and civil society". (Professor U. Baxi "On Being an 'Activist' Judge Not Just an 'Active' One"-a text of observations made at the Eleventh Triennial Conference of the Commonwealth Magistrates and Judges Association, Cape Town, South Africa, October 1997).

TRIAL WITHIN A REASONABLE TIME
The right to a fair trial within a reasonable time is a fundamental right recognised both in international conventions and in our Constitution. What is reasonable time or when is delay inordinate and subject to presumptions in favour of charged persons has considered by the Courts in different occasions. The Courts have stated that time must depend on all the facts of the particular case (see, for example, State v Anthony Stephens and Apaitia Seru HAC004 of 1997; State v Peniasi Kata Cr. Action HAC0009 of 1994L, unreported ruling of Townsley J. delivered on 10/05/ 2000).

In Peniasi Kata's case (supra) Townsley J outlined the factors that need to be considered. These include the complexity of the case, the conduct of the defendants and the conduct of the prosecuting authorities. A more rigorous standard applies when the defendant is in custody Abdolla v Netherland 20 EHRR 585. The State is responsible for the prosecution before the Court (Orchin v UK 6 EHRR 391. Neither the workload of the Court nor a shortage of resources is a sufficient justification for delay in a trial. Under the European Convention on Human Rights there is a duty on parties, regardless of costs, to organise their legal systems so as to allow the Courts to comply with the requirements of the European Convention, Article 6(1), requiring within a reasonable time (see Zimmerman and Steiner v Switzerland [1983] ECHR 9; 6 EHRR 17). Following cases emanating from the European Convention and other relevant Townsley J had declared in Peniasi Kata's case (supra)

"The position is that the authorities concerned with the administration of justice in the Lautoka High Court have not made the resources available to bring this matter to trial, thus breaching the Accused's constitutional right to be brought to trial within a reasonable time. The fact the authorities have not made resources available to try this accused is not his problem" (at page 18).

The situation of the Lautoka High Court has deteriorated since those statements made by Townsley J in May 2000. On 14 March 2001 the Occupational Health and Safety Inspectors closed the two Courts at the High Court complex. Since then all hearing of criminal trials have been aborted. No suitable alternative venues are available. It is not clear when the Courts will be re-opened again to continue hearing criminal cases. This will be listed after another murder trial which was aborted mid trial due to the closure of the Courts. It is unlikely that the trial of the Applicants will commence until August 2001, at the latest, if resources are made available by the authorities for the Court to comply with Occupational Health and Safety requirements. Otherwise it may be further delayed. Even prior to the closure of the Courts the problem of delay in the Lautoka High Court was described as systemic due to under-staffing (Peniasi Kata (opcit) page 6). The Applicants have now been in custody for 18 months, awaiting trial. In the Court's view this is excessive delay for which the applicants are not responsible.

Bail in Murder cases
It is quite clear from case law in Fiji that for a charge of Murder bail is only granted in exceptional circumstances. In the few cases where bail has been granted the exceptional centre on the issue of delay (see, for example State v Felix Keath Vusonitokalau (Cr. Case HAC0005 of 1996S; The State v Vijay Kapoor and Kailesh Chandra Cr Case No. HAC0006/94S, State v Iowane Taroga and Tevita Rosadriwa (Cr. Case HAC0015 of 1994S Timoci Naisake and Saula Matavucu v State (Cr. Case HAM 0010D.2000S). This court had in its earlier ruling (dated 26/10/2000) reviewed the authorities on the grant of bail in murder cases. There is no need to reiterate the principles exhaustively: It is quite clear from the decided cases in Fiji that once a delay of 12 months occurs in the setting of a trial the matter becomes an issue of concern. Though the Courts have also emphasized that there is no magic in a 12 month delay to trigger a grant of bail. Each case has to be considered on its own facts. In the cases cited earlier the period of delay has ranged from 12 months to 1 year and 9 months.

In both the leading authorities on the issue of bail, namely Bechu and Another v Reginam ((1962) 8 FLR 240) and Adesh Singh & Ors. v The State (34 FLR 1) the Courts have emphasised the basic principles for the grant of bail. These includes the presumption of innocence and the primary test whether or not it is probable that the accused will appear to stand trial on the charges against him. As was succinctly expressed by the then Chief Justice in Bechu's case: "There are other considerations which may affect the discretion of a Court in granting or refusing bail. In the first place, while a Court has, subject to statutory restriction, a discretion in granting bail, such discretion must be exercised judicially and in the light of the paramount principle that an accused person is presumed innocent until proven guilty. For that reason, he should not be deprived of his liberty merely because he is accused of a crime if he can satisfy the test that in all the circumstances he will appear in Court for his trial on that accusation." (emphasis added)

Courts have also emphasised the need to consider the nature of the accusation, including the nature of the evidence in support of the accusation. While the Courts have commented on the nature of the evidence contained in the depositions their assessment of the evidence is not the primary consideration. As this Court had stated in its earlier ruling: "The Court, at this stage, cannot consider its assessment of the materials in the deposition as superior to the State's submission that there is a prima facie case for murder" (see Ruling of 26/10/00 at p.3). Given the following discussions on the outcome of murder cases the Courts will need to reassess the consideration of bail in terms of the nature of evidence disclosed in the depositions. The presumption of innocence, which is a constitutional right, will need to be given the weight it deserves.

Outcome of Murder cases
The Court has undertaken an analysis of the results of murder cases filed in the High Court at Lautoka from 1995 to 2000. Altogether there were 18 cases in which persons were charged with murder. In two of these cases the accused pleaded guilty and were sentenced to mandatory life imprisonment. In only 3 cases were the accused found guilty of murder after trial. Amongst these three (3) cases, one case involved 4 accused persons - only two were found guilty for murder; for the other 2 the charges were withdrawn. In the rest of the cases there was one nolle prosequi, and one not guilty after trial. In the bulk of the cases, 12, the accused either pleaded guilty to manslaughter or were found guilty of manslaughter after trial.

In a study: Crime, Deviance, & Delinquency in Fiji by Dr. Mensah Adinkrah, a USP sociologist and criminologist, the data also suggest that the charge of murder does not reflect the outcome of the cases.

Case disposition	Number	Per cent
Non Prosecution	3	0.9
Granted immunity from prosecution and used as prosecution	1	0.3
Witness
Confinement to a mental hospital	3	0.9
Bound over	1	0.3
Suspended jail sentence	54	16.9
Committed suicide	10	3.1
Acquitted	76	23.8
Under 1 year imprisonment	4	1.3
1-5 years imprisonment	57	17.8
6-10 years imprisonment	50	15.7
11 -20 years imprisonment	9	2.8
Life imprisonment	52	6.3
TOTAL	320	100.0 (approx.)

Source: Adinkrah M (1995) Crime, Deviance and Delinquency in Fiji, Fiji Council of Social Services in Association with Asia Crime Prevention Foundation, USP Fiji Prisons Service.

In analysing the above data one needs to recognise that homicide cases, as discussed in Dr Adinkrah's study, includes murder, manslaughter and infanticide. As the author in his study the Police routinely classify all investigated homicide incidents as murder unless facts clearly indicate manslaughter or infanticide. During the period of the (1982-92) the bulk of the cases were originally classified as murder (220), manslaughter (37) and infanticide (12). While the data on case disposition and the charges are not fully compatible, the sentencing outcomes provided in the above study clearly indicate that the bulk of the charges of murder are reduced to manslaughter before trial. This is clearly unsatisfactory when considering the issue of bail where the initial information filed by the State is one of murder.

It is, therefore, questionable why the Courts have deemed the charge of murder as a category of offence where bail is so rarely granted in special circumstances. The mere fact that a charge of murder is proffered by the State does not reflect the outcome. Whatever the charge the presumption of innocence remains. One may reiterate the outcome expressed by the Royal Commission on Treatment of Offenders in 1980: "Are there too many custodial remands and are they justified by the outcome of the cases? Is convenience put before justice? (p40 emphasis added). As Madraiwiwi J stated in the case of Timoci Naisake and Another (opcit): "There comes a point when the applicants can no longer be held hostage to the process of criminal justice especially when the only bar to bail is the charge of murder" (p4, emphasis added).

The UN International Covenant on Civil and Political Rights Article 9(3) states:

"Anyone arrested or detained on a criminal charge shall be brought promptly before a judge...to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any stage of the judicial proceedings... (emphasis added).

Our Constitution (Section 29(3)) also guarantees to charged persons the right to have their case determined within a reasonable time. Justice delayed is justice denied. Principle 38 of the Standard Minimum Rules, discussed in the next section, also states: "A person on a criminal charge shall be entitled to trial within a reasonable time or to trial."

CONDITIONS AT THE NATABUA REMAND BLOCK
The Court will now consider whether the treatment of the Applicants at the Natabua block Remands amounts to cruel, inhumane, degrading or disproportionately severe treatment or punishment. In considering this human right of prisoners one needs to begin with the principal international human rights conventions. These include:

Article 5 of the Universal Declaration states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". This article is adopted in the Bill of Rights provision of our Constitution in Section 25(1). All the above UN prohibit torture, cruel, inhuman or degrading treatment or punishment without or derogation. Article 10 of the ICCPR, which is now considered part of international law, states:

"all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person."

This provision is also incorporated in our Constitution via section 27(1)(f) which states:
"Every person who is arrested or detained has the right to be treated with humanity and with respect for his or her inherent dignity."

It is pertinent to note that in the interpretation of the Bill of Rights the Courts must have regard to public international law applicable to the protection of the rights set out in Chapter IV. The Court's intervention is not dependent on Fiji's ratification of the relevant convention or treaty. It is the relevance of the international convention to the rights under consideration that the Courts have to consider (see also Surya Prakash v Siurley Reshmi Narayan Civil Appeal No. HBA 0001J of 1999L). The over-riding obligations must be to promote the values that underlie a democratic society based on freedom and equality.

As with the work of specialised UN agencies dealing with particular groups, for example, women, children, refugees and disabled persons additional international documents flesh out the human rights of persons deprived of their liberty. These provide helpful guidance as to how governments may comply with their human rights obligations. For prisoners the most comprehensive such guidelines are the United Nations Standard Minimum Rules for the Treatment of Prisoners (known as the Standard Minimum Rules). These were adopted by the UN Economic and Social Council in 1957. Although the Standard Minimum Rules (SMR) are not a treaty, they constitute an authoritative guide to binding treaty standards. The norms set out in the SMR explicate the broader standards contained in the principal human rights conventions mentioned earlier. The basic tenet of all human rights instruments dealing with prisoners clearly reaffirm the principal prisoners retain fundamental human rights. The classification of a person as a prisoner, convicted/unconvicted or otherwise, does not derogate from fundamental human rights attached to all human beings.

In 1992 the UN Human Rights Committee explained that states have "a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty". It further stated: "Not only may persons deprived of their liberty not be subjected to torture of other cruel, inhuman or degrading treatment or punishment .... But neither may they be subjected to any hardship or constraint other than that resulting from deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the ICCPR, subject to the restrictions that are unavoidable in a closed environment." A more significant pronouncement of the Human Rights Committee is that the obligation to treat persons deprived of their liberty with dignity and humanity is a fundamental and universally applicable rule not dependent on the material resources available to the state party. As the Human Rights Committee stated in Mukon v Cameroon (Communication No. 458/1991: Cameroon 10/08/94. CCPR/C/51/D/ 458/1991) "... the Committee observes that minimum standards regarding the conditions of detention must be observed regardless of a State party's level of development. These include, in accordance with rules 10, 12, 17, 19 and 20 of the Standard Minimum Rules for the Treatment of Prisoners. Minimum floor space and cubic content of air for each prisoner, adequate sanitary facilities, clothing which shall be in no manner degrading or humiliating, provision of bed and provision of food of nutritional value adequate for health and strength. It should be noted that these are minimum requirements which the Committee considers always be observed, even if economic or budgetary considerations may make compliance with these obligations difficult." (emphasis added).

Within the general category of prisoners special set of standards apply to "untried prisoners", that is, persons detained by the State who have not been tried or sentenced of a criminal charge against them. The rights of untried prisoners is premised on another fundamental human rights concept - the presumption of innocence. The UN Universal Declaration states in Article 11(1):

"Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."

This Universal right is reaffirmed in our Constitution under Section 28(1)(a) which states:

"Every person charged with an offence has the right: to be presumed innocent until proven guilty according to law."

It is clear from the affidavits that the applicants are sharing one cell among three detainees. The cells in the Remand block are quite small (9ft x 9ft and 11 inches). There is only one window per cell (3ft x 1ft 5 inches). It is clear from the Court visit that there is insufficient natural light to read, which is required under the Minimum Standard Rules. According to the UN Standard Minimum Rules for the Treatment of Prisoners 9(1):

"Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary over-crowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room". It is clear from in the case of the Applicants and in the Natabua Remand block the minimum standards are not being met. Most detainees sleep with at least two other prisoners routinely. When there is over-crowding 3 or more persons sleep in a cell. According to Prison officials two persons are not put together in a cell-it is either one or three persons.

The problem of overcrowding in our prisons appears to be have been a perennial problem since the 1960s. The Advisory Mission on the Treatment of Offenders (Council paper No. 1 of 1967) noted the problem in the 1960s. The Report of the Ombudsman (Justice Moti Tikaram). Into the Allegations of ill-treatment at Naboro Maximum Security Prison 31st May 1978 (Parliamentary Paper No 37 of 1978) stated that "Overcrowding and shortage of staff has been a perennial problem with the Prisons Service (p.30). As regards to Remand prisoners generally one cannot but quote the following observations by the English Parliamentary All-Party Penal Affairs Group in its Report: 'Too Many Prisoners" published in June 1980:

"Remand prisoners make a particularly heavy demand on the resources of the prison service because of the disproportionate amount of staff time spent on reception duties and in escorting them to and from Court. Furthermore, the May Committee described conditions for many remand prisons as a 'scandal'. Although un-convicted prisoners receive certain privileges not afforded to serving sentences (e.g. more frequent letters and visits and the right to have a greater of variety of articles sent in by relatives and friends), in other ways they are worse off than convicted prisoners. Work is not readily available for who wish to work, educational and recreational facilities are often minimal and they spend the majority of each 24 hour period locked in their cells. We that the location of, and conditions for, remand prisoners should be reviewed since it is particularly undesirable that persons who have not yet been found guilty of an offence should be subjected to such conditions" (Quoted from Royal Commission on Treatment of Offenders Suva, Fiji 1980 Part I pp41-42).

The Court cannot but reiterate and reconfirm those sentiments expressed in the 1980s in the U.K. in relation to the conditions at the Remand block in Lautoka in 2001. The detainees/unconvicted prisoners in the Remand block live in atrocious conditions, more so when the block is overcrowded. On the day of our visit there were 45 male persons in detention. According to the Officer-in-charge over the past 3 years, on average, there have been 45 persons in the Remand block at any given time. There are only 18 cells in the block. As such the submission by State Counsel that the overcrowding in Natabua Remand block is temporary is not correct. Most detainees, including the applicants, were housed 3 to a cell. They are locked in most of the time. The building is very old, built in 1920s. For three or more persons the cell is inadequate. The officer in charge himself admits in his affidavit that "I verily believe that each cell block housing three prisoners is over-crowded and not suitable for healthy human survival." There is insufficient natural light for reading. The type of light bulbs used are not conducive for reading in the overall structure of the block. The foam mattresses provided were thin and mostly inadequately covered. They are placed on the bare cement floor for sleeping. The blankets provided, especially for the cooler months of May - July are inadequate. Many were torn. Some detainees complained about these. It is clear that the provision of bedding does not comply with the SMR which requires that every prisoner be provided with "a separate bed with separate and sufficient bedding which shall be clean when issued kept in good order and changed often enough to ensure its cleanliness." The situation in the Remand block is the more distressing when one notes that convicted prisoners housed in the dormitory blocks at Natabua are provided with beds.

The remand prisoners are provided breakfast from 7:00-8.00a.m. which appears reasonable. Lunch is from 11:30 to 12.00noon which may be considered reasonable. However, the evening meal is provided from 4:00pm to 4.30. Unlike the convicted prisoners unconvicted prisoners take all their meals in their cells. It is not clear why.

However, this appears unsatisfactory when at least 3 persons are confined in a cell. There is no table or chairs in the cell. From 5pm all detainees are locked in their cells. They are then left with a bucket each for the needs of nature until 7.00am. Such a situation is inhumane and degrading in view of the fact that 3 persons are confined in a badly ventilated cell. This also breaches the SMR 12 which states: "The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner." By 8pm all lights are put off. Given the climatic conditions and the socio-cultural milieu in Fiji this locking up at 5pm is inhumane. Most persons in villages and settlements, where most detainees come from, are busy in outdoor activities from 5-7.00pm, for example, in sports, gardening, farming and other recreational activities. Very few persons in Fiji would, in normal circumstances, have their dinner at 4.00p.m.

The detainees in the Remand block are allowed one hour of exercise per day between Mondays to Fridays. This includes putting their beddings out and washing and drying clothes. Altogether, as the Applicants state, they are allowed two hours per day for fresh air breathing. According to the Prison Regulations section 121(c) an unconvicted criminal prisoner "may exercise daily during such period as the circumstances of the prison may allow." It is clear that this provision is not fully adhered to since there is no provision for any exercise on Saturdays and Sundays. It is also evident that on rainy days there are no provisions for exercise since there are no indoor recreational facilities at Natabua Prison. The availability of staff resources also restricts this exercise privilege of the detainees. There are no provisions to undertake any education or training, for example, through extension classes or correspondence at Natabua Prison. While the detainees may receive letters any day, they are allowed to write only once a week. This is contrary to Regulation 121(f). As the HRC submission states in general the laws of Fiji regarding the treatment of unconvicted prisoners are consistent with international law. What appears to be a problem is the enforcement of the appropriate regulations. In the Court's view in many areas, the regulations do not fully confirm to the Standard Minimum Rules. Where there is any conflict, under Section 21(4) of the Constitution, the Courts will need to read the statute or regulation to confirm with the requirements of the Bill of Rights.

It is clear from the Court's inspection of the Remand block and discussions with the Officer-in-charge that unconvicted prisoners do not have any favourable treatment to convicted criminal prisoners. In fact the conditions in the Remand block are inhumane and inferior to the dormitory blocks where certain class of convicted prisoners are kept. Much has to do with the allocation of staff and other resources. The Court is aware that a disproportionate amount of time and staff resources are required to remand prisoners to and from the Courts and the consequential administrative burdens. This is perhaps one of the reasons, among others, that the Prison authorities suggested the option that Remand centres be under the jurisdiction of the Police Department (see HRC submission p.30). This is a matter which the authorities concerned to consider. It is also evident that neither the Prison officers nor the prisoners are of the Standard Minimum Rules. According to Dr Shameem Fiji has never requested assistance from the relevant UN agencies to comply with the Standard Minimum Rules.

It does offend our sense of human decency to realise that persons who are presumed innocent are only allowed 2 hours out of their cells in a 24 hour period. Most of the time they are locked in a small cell with at least 2 other persons. That a bucket system is still used for the needs of nature is offensive in this day and age. That such persons are confined in a building built in the 1920s with ventilation and structures not conducive to human habitation does not accord with the sense of social justice and fairness our community expects. Remand centres are meant to keep detainees for short periods, awaiting trial. However, given the backlog of cases in our courts such persons spend more than a reasonable time awaiting trial. The breaches of the provisions for a fair trial within a reasonable rime and to be treated with humanity and inherent dignity cannot be condoned by the Courts.

It is clear that the Prisons Act (Cap 86) and the subsidiary legislations dealing with the treatment of prisoners needs to be reviewed. The definitional problem of 'prisoner' meaning "any person, whether convicted or not under detention in prison, or being taken to or from prison in which he may be lawfully detained' (Section 2) is but one aspect of the problem. There needs to be more updating in terms of the treatment of prisoners, especially those unconvicted of any offence, to meet the requirements of the Minimum Rules. The Fiji Law Reform Commission: Background Paper to a Review of the Prisons Act and Subsidiary Legislation (Commission Paper No. 5) presents some very useful background on penal legislation, penal policy and philosophy.

The State Counsel's rather bland oral submission that lack of resources is a problem does not address the issue. As discussed earlier resource constraint cannot be used to derogate from the provision of Bill of Rights in our Constitution. As s.21(2) itself states:

"The rights and freedoms set out in this Chapter apply according to their tenor and are subject only to the limitation under laws of general application permitted by this Chapter and to such derogations as are authorised under Chapter 14."

Chapter 14 derogations relate to a state of emergency. Interestingly, even emergency powers. Section 187(3)(d) states:

"A law made under this section that is inconsistent with the obligations of the State under an international convention or covenant is invalid to the extent of the inconsistency."

As such the rights of detainees to be treated with human dignity, provided for under the Universal Declaration, the ICCPR and the Covenant Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, cannot be compromised even under a state of emergency. One cannot but reiterate the remarks of Madraiwiwi J in the case of Taito Rarasea v State (Cr App HAA0027/2000S) which considered the rights of prisoners in the context of the Standard Minimum Rules. In considering the reduction of prison rations as a form of punishment Madraiwiwi J. stated: "The very idea that the state would employ such means is intrinsically unacceptable for the reason that it uses what is a necessity of life as a means to punish proscribed behaviour. This devalues persons such as the Appellant because it assumes that their status as prisoners justifies such sanctions. The short answer to the proposition is that they are no less human for being incarcerated an entitlement to an inherent dignity no bars or walls can violate." (p4, emphasis added). It is interesting that in this case Maraiwiwi, J went beyond the Standard Minimum Rules to conclude that the reduction in rations amounted to inhumane and degrading treatment. As he stated: "It must also be borne in mind that the Minimum Rules were first approved in 1957 and recognised that '...the rules cover a field in which thought is constantly developing". The concept of human rights has evolved since then and from the vantage point of the Constitution, which came into effect in 1997, has deepened in its scope." (p4).

CONCLUSIONS
In the Court's view the overall conditions and regime in the Remand block at Natabua Prison is inhumane. It dehumanises those within it. The regime maintained is for convenience rather than human centred. The detainees are not treated with humanity and with respect for their inherent dignity as required by Section 27(l)(f) of our Constitution. When one assesses the inhuman conditions pertaining to the unconvicted at the Remand block at Natabua Prison complex one wonders what is the presumption of innocence about. This coupled with the long delays in the trial for murder cases, as these applicants are facing, breaches the most fundamental human rights of a vulnerable group in society. Most studies suggest that prisons dehumanise human beings. It must particularly rankle those who are presumed to be innocent. If society is to be judged by how it treats its most vulnerable than at Natabua Remand block we have a test. One cannot but feel that the facilities and regime condoned by the concerned diminishes all those who are detained and those who detain them in sub human conditions. Such conditions cannot be condoned by all those who believe in the rule of law and fundamental human rights. One cannot reconcile such treatment the preamble to our Constitution which reaffirms "our recognition of the human and fundamental freedoms of all individuals and group, safeguarded by adherence to the rule of law, and our respect for human dignity..." Nor does it comply with the Compact in our Constitution recognising that "...the conduct of government is based on the principles" that "the rights of all individuals, communities and groups are fully respected" (section 6(a)).

Prisoners are not captives of Prison officers nor the Prison service. They are in prison due to a judicial determination. Most are in prison due to a conviction. The punishment is imprisonment. Their liberty has been restricted. That is the punishment. The circumstances of imprisonment should not be used as an additional punishment. The role of the Prison Service is to look after the welfare of the Prisoners while in State custody, of their social and cultural development. As for the unconvicted prisoners are to be presumed innocent until proven guilty according to law. Apart from being separated from convicted persons they are to be treated with humanity and with for his or her inherent dignity (Sections 27(1)(f) and (4) of the Constitution). They are to be treated in a special regime conducive to their status as innocent persons. For them life in prison should be made as close to normal life, in keeping with their social and cultural requirements.

The Court finds that the treatment of the Applicants in particular and other persons in the Remand block at the Natabua Prison at Lautoka does not comply with the UN Standard Minimum Rules. As such their Constitutional right to be free from cruel, inhumane, degrading or disproportionately severe treatment or punishment has breached. Their treatment is not in keeping with the presumption of guaranteed by Section 28(1) of the Constitution. Further, the length of time they been kept in custody awaiting trial further aggravates the inhumane and treatment they are subjected to. Their treatment amounts to punishment before are tried by a Court of law.

The Court recommends that the Remand block at the Natabua Prison complex be closed for the purpose of detaining persons awaiting trial. The authorities may use the block for storage and other administrative services but it should not be used to detain persons who are presumed to be innocent. If the facility is not closed forthwith this Court, in view of its findings in this case, and keeping with its obligations under Section 21(1)(a) and (3) of the Constitution, will consider granting bail to persons detained in the Remand Block and awaiting trial.

This Court cannot but express its grave disappointment with the Occupational Health and Safety Inspectors based at Lautoka. It is rare for government departments not to co-operate and comply with a request made by the Courts. This Court had requests for the Occupational Health and Safety Inspectors to undertake an Occupational Health & Safety Inspection to determine whether the Remand block complies with the Act. No reports were forthcoming from the Department.

ORDER
As far as the specific situation of the 5 Applicants are concerned their detention and treatment over the last 18 months amounts to cruel, inhumane and degrading The delay in their trial has not been due to their conduct. It is excessive and in breach of their constitutional rights. The presumption of innocence that they are entitled to under the Constitution has been violated. The 5 applicants are granted bail on the following conditions:

(i) Each applicant is granted bail on his own recognisance for the sum of $500:00, with a surety each for $500:00.

(iii) Each is to reside at a fixed address - to be provided to Court. They are not to change their residence without informing the Police.

(iv) They are not to communicate with or interfere with any Prosecution witnesses.

(v) They are to appear in this Court, at its next Criminal session on 6 August 2001at 9.30a.m.

Fiji Law Reports

Naba v State [2001] FJLawRp 51; [2001] 2 FLR 187 (4 July 2001)