State v General Court-Martial, Ex parte Stevens [2001] FJHC 245; HBJ0030.2001 (2 November 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 30 OF 2001

IN THE MATTER of an Application for
Leave to apply for Judicial Review.

And

IN THE MATTER of the Convening Order by Commodore Josaia Voreqe Bainimarama, MSD, Jssc, psc Commander Republic of Fiji Military Forces convening the General Court-Martial to try the Applicants

And

IN THE MATTER of the Decision of the General Court-Martial made on 17th Day of September 2001.

Between:

THE STATE

V

GENERAL COURT-MARTIAL
COMMODORE JOSAIA VOREQE BAINIMARAMA
Respondents

Ex parte:

SHANE N STEVENS
PENI NADUANIWAI
SIMIONE NABOU
APISAI NAQAMU
ASIVOROSI ROKO
EMOSI SERUKASARI
Applicants

Mr. Rabo Matabalavu for the Applicants
Capt. K. T. Keteca with Capt. Aziz Mohammed for the Respondents

DECISION
(Orally - reasons later)

This is an opposed application for leave to apply for Judicial Review under Order 53 Rule 3(2) of The High Court Rules 1988 by the Applicants herein in respect of the decision of the General Court-Martial delivered on 17 September 2001. An Affidavit in Support of Shane N. Stevens sworn 21 September 2001 has been filed.

Because the General Court-Martial is scheduled to resume in a few day’s time on 5 November 2001, in the short time at my disposal I have decided to give a short decision with detailed reasons later.

The application was heard inter partes. I have the benefit of both oral and written submissions from both counsel.

The relief sought are as follows (as stated in the application for Judicial Review):

(i) RDER OF CERTIORARI to remove the decision of the First Respondent made in its said Ruling that it is an independent body and, by implication, that it is an impartial tribunal capable of giving the Applicants a fair trial and to quash the said decision.

(ii) DECLARATION that the Convening Orders made by Commodore

Josaia Voreqe Bainimarama, MSD, jssc, psc Commander Republic of Fiji Military Forces on the 23rd August 2001 is without lawful authority accordingly is void and of no effect.

(iii) PROHIBITION to prevent further hearing by the General Court Martial of the charges against the Applicants.

(iv) N ORDER that the said charges against the Applicants pending

before the General Court Martial be transferred from the General Court Martial to the High Court of Fiji or, alternatively, to an independent and impartial court of law.

(v) NJUNCTION to restrain the General Court Martial from

continuing to hear the charges of the Applicants.

(vi) S for breach of statutory duty leading to false imprisonment.

The grounds upon which the Applicants seek the reliefs are stated by the Counsel as hereunder (as stated in the Application for leave for Judicial Review):

1. that the First Respondent acted in breach of the rules of natural justice in that, save for His Lordship the Judge Advocate, the President and Members of the General Court Martial being either serving or retired Officers of the Armed Forces are biased against the Applicants in deciding that the charges against the Applicants may be tried by the Court.
   
2. the First Respondent the General Court Martial acted in breach of the rules of natural justice when conferring upon itself the status of an independent body and, by implication, of an impartial tribunal thereby deciding that it would continue to hear the charges against the Applicants in circumstances when it clearly should not.
   
3. the First Respondent acted in breach of the rules of natural justice bearing in mind the reasonable likelihood of bias on the part of the First Respondent as a tribunal all of whose members are either serving Officers of the Fiji Military Forces or serving and retired members of the Naval Division of the Armed Forces.
   
4. the First Respondent the General Court-Martial acted in breach of the rules of natural justice by insisting that the President and Members of the Court shall be either serving or retired Officers of the Armed Forces it being apparent that the President and such Members have an interest in securing the conviction of the Applicants.
   
5. the First Respondent abused its discretion when deciding that it could continue to hear the charges against the Applicants, in that -
   
   1. it took into account irrelevant matters.
      
   2. it did not consider the Applicants contention that as the accuser/complainant, the investigator, the prosecutor and the judge the First Respondent was unlikely to fulfil the constitutional requirements with regard to fair trial and impartiality.
      
   100. the First Respondent acted arbitrarily and/or in bad faith when deciding to continue to hear the charges against the Applicants despite the latter’s protestations; and
        
   4. the decision of the First Respondent to continue to hear the charges against the Applicants was not at all made objectively and further is unreasonable and discriminatory.
      

(6) the First Respondent contravened section 29 of the Constitution of

the Republic of the Fiji Island in persisting with trying the Applicants bearing in mind -

1. the inherent likelihood of the contravention of the Applicants’ constitutional right to a fair trial.
   
2. the inherent likelihood of the contravention of the Applicants’ constitutional right to trial before an independent and impartial tribunal.
   

100. the objection of the Applicants to the whole of the membership of the First Respondent including its President by serving and retired Officers of the Armed Forces.
     

(7) the Second Respondent acted in breach of section 25 of the Republic of Fiji Military Forces Act Cap. 81 and further without lawful authority in purporting to make the Convening Orders dated 23rd August 2001.

Consideration of the application

In this application for leave for judicial review Mr. Rabo has raised in short the same issues in his grounds of relief as Mr. Bulewa did in the identical application in Judicial Review Action No. 33 of 2001. Therefore my decision in this application will be same as in No. 33 of 2001 and I can do no better than repeat it here as this is a separate action.

In his oral submission the learned Counsel for the Applicants elaborated on the grounds of relief filed.

I have also had the benefit of both an oral and written submission of Mr. Keteca for the Respondents. He dealt very succinctly with the issue under two heads, namely: (1) jurisdiction of the High Court on rulings of disciplinary Courts and (2) lawful authority of the Commander to convene General Court Martials. In summarising his argument he submitted that:

1. This Court does not have the original jurisdiction to deal with this matter.
   
2. The GCM is not a subordinate court and thus the supervisory role of the High Court under Section 120(6) of the Constitution does not apply.
   
3. The GCM has already decided on the issues raised by the applicants in the decision dated 17 September 2001.
   

Leave required

The ‘leave of the court is a necessary pre-condition to the making of an application for judicial review, and no application for judicial review may be made unless this leave has first been duly obtained.’ (Hals. 4th Ed. Vol. 37 para 568). This requirement is also contained under Order 53 r 3(1) of The High Court Rules 1988 pursuant to which this application is being made. The said Or 53 r3(1) provides:

‘No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.’

Leave is obtainable provided that, inter alia, there is an arguable case on merits.

So, before the hearing of the judicial review the ‘threshold stage’ (leave stage) as regulated by Or 53 r3 has to be considered and also its purpose.

The Court has held that "even though the onus is on an applicant for leave to apply for judicial review to satisfy the Judge that the case discloses an arguable ground for relief, a Judge who grants leave without being so satisfied is acting wrongly". It was so held by Court of Appeal in R v Social Security Commissioner and Another ex parte Pattni Adm. L.R. 1992 p.219.

To conclude on the leave aspect, I refer to the following passage and it is pertinent to this case and should be borne in mind:

"..... to filter out the applications of cranks and busybodies who might otherwise impose an excessive burden in the process of legitimate administrations. The granting of leave does not prevent a respondent from applying to strike out an application, just as applications to strike out are possible in actions begun by or originating summons. The fact that leave is required, however, gives the Court an opportunity to control applications of its own motion, e.g. refusing leave or permitting them to proceed only in such manner as it may direct. The Court does not require extensive argument on an application for leave but simply need to be satisfied that the applicant has a prima facie arguable point." (Per Lord Donaldson in R v Secretary of State for Home Department, ex. p. Cheblak (1991) 1 WLR 890 at 901 (Application for Judicial Review Law and Practice of the Crown Office by Aldous & Alder 2nd Ed. p.139).

Decision

In the short decision which I propose to deliver without setting forth much reason in the short time at my disposal because of the pending General Court- Martial resumption date for hearing it is this: having considered the submission of learned counsel from both sides I agree fully with the arguments advanced by counsel for the Respondents. As to arguments put forward by Mr. Matabalavu for the applicants, although he had interesting points to make, I find with respect they are devoid of merits bearing in mind particularly the law as it stands.

In a nutshell, this said decision of the President of the General Court- Martial is not susceptible to judicial review. It is not a decision which will come under the subject of administrative law to be reviewable by the High Court.

Very rarely will the High Court interfere with the workings of the General Court-Martial. From the very strong arguments advanced by Mr. Keteca, the General Court-Martial is not an inferior court and is of the same level as High Court, namely, it is regarded as a superior Court. On this basis alone the High Court is not able to review the decision. It should be noted, as Lord Diplock said in the House of Lords in In re Racal Communications Ltd [1980] UKHL 5; [1981] A.C. 374 at 384 that ‘judicial review is available as a remedy for mistakes of law made by inferior Courts and tribunals only’ Lord Diplock states further that "mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate Court; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all." A further authority on the non-availability of judicial review against superior courts is stated in so many words by Clive Lewis in his book Judicial Review in Public Law (1992) at 46 citing the case of R v Oxenden [1794] EngR 1756; (1691) 1 Show, K.B. 217.

Apart from the above argument The Laws of Fiji in Fiji Military Forces Act Cap.81 makes provision for the applicability of the Army Act, 1955 of the United Kingdom to be in force in Fiji. Also under Cap. 81 decisions from the decision of General Court- Martial go to Court of Appeal, Fiji Islands, but only on convictions. This only goes to show and it can be inferred that General Court-Martial is a superior Court and no judicial review can lie to High Court from its decision.

The Court is further fortified by the following passage from the judgment of Viscount Reading C.J. in The King v The Army Council, Ex parte Ravenscroft [1917] KBD 504 at 608 in ruling against the applicants:

"I have no doubt that this Court has no power to interfere with matters of military conduct and purely military law affecting military rules for the guidance of officers or discipline generally. I agree with what was said by Willes J. in Dawkins v Lord Rokeby (1): "It is clear that, with respect to those matters placed within the jurisdiction of the military forces, so far as soldiers are concerned, military men must determine them." And later he said: "With respect to persons who enter into military state, who take Her Majesty’s pay, and who are content to act under her commission, although they do not cease to be citizens in respect of responsibility, yet they do, by a compact which is intelligible, and which requires only the statement of it to recommend it to the consideration of any one of common sense, become subject to military rule and military discipline." That is not only an opinion which binds this Court, inasmuch as it has been followed in other cases." (emphasis mine underlined).

On the question of bias, that issue does not actually arise once the applicants are governed by military law under the Army Act and have to be tried by military personnel.

For the above short reasons the application for leave to apply for judicial review is refused mainly for the reason that the said decision of the General Court-Martial is not susceptible to judicial review. In fact it was an abuse of the process of the Court for the applicants to have commenced this action under Order 53 of the High Court Rules.

D. Pathik
Judge

At Suva
2 November 2001