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In the Matter of the detention of Uti Siose under Article 5 of the Constitution of Nauru [1982] NRSC 2; [1969-1982] NLR (A) 202 (5 February 1982)

[1969-1982] NLR (A) 202

IN THE SUPREME COURT OF NAURU

Miscellaneous Cause No.8 of 1981

IN THE MATTER OF ARTICLE 5 OF THE CONSTITUTION OF NAURU

AND

IN THE MATTER OF THE DETENTION OF UTI SIOSE

5th February, 1982.

Opinion on case stated - section 52 of the Civil Procedure Act 1972 - opinion should not be sought in respect of matter where a remedy is available or a right may be declared through the normal processes of the Courts.

Constitution - provision for arrest of persons on bail who are about to abscond - ultra vires - Article 5 of the Constitution.

Opinion of the Court sought on agreed facts under section 52 of the Civil Procedure Act 1972. S., a Tuvaluan employee of the Nauru Phosphate Corporation, was charged with attempted murder and released on bail. The Director of Public Prosecutions received information that the Corporation had dismissed S. from its employment and was about to repatriate him to Tuvalu. He, therefore, ordered a police officer to arrest him under the provisions of section 87 of the Criminal Procedure Act 1972.The opinion of the Court was sought as to the legality of the arrest.

The relevant part of Article 5 reads-

"5. (1) No person shall be deprived of his personal liberty, except as authorised by law in one of the following cases:-

(a)

(b)

(c) upon reasonable suspicion of his having committed, or being about to commit, an, offence;

(d) to (h)."

The relevant part of section 87 of the Criminal Procedure Act 1972 reads-

"87. (1) A police officer may arrest without warrant any person who has been admitted to bail-

(a) if the officer has reasonable grounds for believing that that person is likely to break the condition that he will attend at the time and place required......

(b)..."

By the Court: (1) An opinion should not be given under section 52 of the Civil Procedure Act 1972 where the subject matter relates to a matter in respect of which a person may be able to obtain by the normal processes of the Court a remedy or a declaration of a right.

(2) Section 87 of the Criminal Procedure Act 1972 is ultra vires Article 5 of the Constitution, as at present absconding from bail is not an offence. It will be intra vires if the Penal Code Bill is enacted as drafted at present, i.e. with provision making absconding from bail an offence.

Mrs. M.L. Billeam for Uti Siose
Director of Public Prosecutions (Mr.D.G.Lang) in person

Thompson CJ.:

These are somewhat unusual proceedings. Uti Siose, a Tuvaluan employed by the Nauru Phosphate Corporation was charged with attempted murder; the alleged intended victim was another Tuvaluan also employed by the Corporation. Both men resided in the Location in accommodation provided by the Corporation. Uti was brought before the District Court after his arrest; he was remanded in custody for the preliminary inquiry to be held. Somewhat surprisingly in view of the seriousness of the offence alleged, he was subsequently released on bail; he went to live with another Tuvaluan who resided outside the Location. The preliminary inquiry proceeded slowly with several rather lengthy adjournments; on each occasion Uti's bail was extended. On 9th November, 1981, he was arrested and brought before the District Court; he was then remanded in custody by the Court until the next date of the preliminary inquiry, 11th November, 1981.On 11th November he was committed for trial in the Supreme Court and remanded in custody pending his trial.

The precise circumstances leading to Uti's arrest on 9th November are not agreed; however, a police officer, acting on the instructions of the Director of Public Prosecutions, arrested him in pursuance of the provisions of section 87 of the Criminal Procedure Act 1972, that is to say to prevent him departing Nauru and so absconding from his bail. It is agreed that, when Uti was brought before the District Court, the Director of Public Prosecutions informed the Court that he had directed that Uti be arrested because he believed that the Nauru Phosphate Corporation had terminated his employment and was about to repatriate him to Tuvalu. He also informed the Court that he was personally satisfied that there was no substantial risk of violence being committed by or against Uti if he were to remain on bail but that he might have nowhere to reside. The District Court thereupon, as already stated, revoked the order for bail and remanded Uti in custody.

That same day these proceedings were commenced as a complaint to this Court under Article 5 (4) of the Constitution that Uti was unlawfully detained. The complaint came before the Court for hearing on 13th November, 1981.Mrs Billeam, representing Uti, immediately conceded that Uti's detention was no longer unlawful and had not been unlawful since the time of his committal for trial. This Court was, therefore, not asked to order that he be released. However, Mrs Billeam submitted that the events which gave rise to the complaint raised important issues relating to the human rights provisions of the Constitution of Nauru. Eventually she and the Director of Public Prosecutions ascertained that they were in agreement as to the facts and they decided to ask this Court to give its opinion on seven questions based on those facts.

The facts agreed by Mrs Billeam and the Director included a number which related to action taken by Nauru Phosphate Corporation. Some of the questions on which the opinion of this Court was sought involved imputations of impropriety against the Corporation. Clearly no opinion on such questions could be given unless the Corporation were made a party to the proceedings and agreed with the facts, or any amended version of them which Mrs Billeam and the Director might be willing to agree to. In the event the Corporation and the Director were unable to reach agreement. The Director and Mrs Billeam were accordingly informed by me that the opinion of this Court could not be given on the questions relating to the conduct of the Corporation. The questions which remained to be considered were:-

(1) Does section 87 of the Criminal Procedure Act 1972 require an intention on the part of the person bailed to breach the condition on which he is admitted to bail, in order for an arrest under this section to be lawful?

(2) Is an admission to bail pursuant to section 80 of the Criminal Procedure Act 1972 an order within the meaning of Article 5 (1) (b) of the Constitution?

(3) Was the detention of the accused from 9th November, 1981, to 11th November, 1981, ultra vires Article 5 (1) of the Constitution?

(4) Is section 87 of the Criminal Procedure Act 1972 good law?

The jurisdiction of this Court to give an opinion on a case stated to it is founded on section 52 of the Civil Procedure Act 1972.It is a jurisdiction which the Courts in England and in many other common law countries do not have. It is obviously a jurisdiction which should be exercised sparingly and only in cases in which the parties require the opinion as the basis for their future actions. All that is given is an opinion, not a declaration of the law or of the rights of the parties. Where events have occurred which may entitle a person to obtain in the Courts a remedy against another or a declaration of his rights, he should seek that remedy or that declaration by making an appropriate claim in appropriate proceedings. At the end of the day his entitlement to the remedy or the rights which he seeks to have declared will have been finally determined. It is not so in respect of a mere opinion; the fact that an opinion has been given does not preclude a claim being made afterwards for the remedy or the declaration. The opinion has decided nothing; the Court dealing with the claim must deal with the issues afresh. In Nauru that would mean bringing in another judge, at considerable expense to the Republic, to hear and determine the claim.

Question 3 seeks an opinion on whether the actual detention of Uti Siose was unlawful or not. For the reasons which I have just given, it would not be proper for this Court to give such an opinion. That question will, therefore not be answered. However, the argument of the issue by Mrs Billeam and Mr Lang has brought out very clearly the unsatisfactory situation which exists when a person who is not entitled as of right to reside in Nauru is charged with a criminal offence and a Court, a magistrate or a police officer has to decide whether he should be admitted to bail. If the person concerned has given his employer grounds under section 9 of the Workers (Contracts of Service) Ordinance 1922-1967 for terminating his employment, e.g. by striking a fellow-employee or by exerting a bad influence on other workers, and his employment has been terminated, the employer is apparently not legally obliged to continue to provide accommodation for him. That certainly appears to be the effect of the omission of the words "or termination" from section 42 of that Ordinance, which appears to be a deliberate omission as they are included after the word "expiration" in section 41. Indeed, it is not difficult to envisage a case in which the continued residence of a dismissed employee in the Location could have serious consequences not only for the employer, but also for the economy of Nauru or its peace and good order. Such persons cannot rely on being able to stay in the Districts. They may not know anyone there who is willing to accommodate them. If they do, it is the Government's policy not to allow them to live there unless the Nauru Local Government Council approves. The Council may well feel in some cases that the interests of the Nauruans would not be well served by granting such approval. There are, of course, the hotels; but few expatriates could afford to stay at them for any length of time while not in receipt of a salary or wages, and the less well-paid workers would be unable to do so even when in receipt of their full wages.

So the Court, magistrate or police officer is faced with the fact that for some persons charged with offences and dismissed from their employment the gaol is the only accommodation available - and by reason of the provisions of the Nauru Gaol and Prison Ordinance 1921-1967 he probably cannot be accommodated there unless he is formally remanded in custody by a Court or a magistrate! Yet the clear implication of Article 5 of the Constitution is that a person should not be remanded in custody, and so deprived of his personal liberty unless the interests of the public in having him so remanded outweigh his right to personal liberty.

Although the matter which I have just been discussing is not strictly one in respect of which the opinion of the Court is sought, it does concern the effectiveness of Article 5, which is one of the most important human rights provisions of the Constitution. I draw attention to Article 3 which expressly states that those rights are to be enjoyed by all persons in Nauru, irrespective of their race or place of origin. It is clear that, if those rights are to be real for persons brought from outside Nauru to work here and are not to be expressions of good intention lacking real substance, something must be done to ensure that accommodation is always available for persons released on bail but no longer accommodated by their employers. As only the government has the means or the authority for making that provision, I ask the Director of Public Prosecutions to make a copy of this judgment available to the responsible Minister.

I turn now to the remaining questions. Mr. Lang has conceded that the answer to question 4 must be "No", that section 87 of the Criminal Procedure Act 1972 is ultra vires the Constitution. That is so; it provides for the arrest of any person on bail who is about to abscond. Article 5 (1) (c) of the Constitution permits the arrest of a person reasonably suspected of being about to commit an offence. If absconding from bail were a criminal offence, section 87 would be valid. But it is not yet an offence. It is included as an offence in the Penal Code, the Schedule to the Penal Code Bill which was drafted as complementary to the Criminal Procedure Bill; the latter Bill upon enactment became the Criminal Procedure Act 1972. Unfortunately the Penal Code Bill has not yet been enacted; so section 87 is ultra vires Article 5 of the Constitution and is not good law at present.

As I have answered question 4 in that way, question 1 lapses. It seeks an opinion on the interpretation of section 87.As that section is not good law, it would be pointless to interpret it.

Mr Lang has conceded that question 2 must be answered "No". That is obviously correct. The "order of a court" referred to in Article 5 (1) (b) must, necessarily from the context, be one which deprives a person of his personal liberty. Far from doing that, an order admitting a person to bail preserves his personal liberty.

Accordingly the opinion of this Court is that questions 2 and 4 should both be answered "No". No opinion can be given in respect of question 1 and, for the reasons which I have stated earlier, it is inappropriate for this Court to give an opinion as to question 3.