State v General Court-Martial, Ex parte Dakuliga [2001] FJHC 246; HBJ33D.2001 (2 November 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW ACTION NO. 33 OF 2001

IN THE MATTER of an application for Judicial Review for Orders of Certiorari and Prohibition

And

IN THE MATTER of the decision of the General Court-Martial dated
17 September 2001

Between:

THE STATE

V

GENERAL COURT-MARTIAL
First Respondent

And

THE ATTORNEY-GENERAL OF FIJI
Second Respondent

Ex parte:

LT CHARLES YABAKIDRAU DAKULIGA
LT SERUPEPELI DAKAI
WO1 APAITIA WAQANIBORO
SGT JONE NAISARA
PTE SIMIONE VUNITABUA
PTE WAISALE SASEKULA
PTE JOLAME LEDUA
PTE FILIMONI BERANALIVA
Applicants

Mr. K. Bulewa for the Applicant
Capt. K.T. Keteca with Capt. Aziz Mohammed for the Respondents

DECISION
(Oral Decision with 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 Charles Yabakidrau Dakuliga sworn 24 September 2001 has been filed.

The application was heard inter partes with Counsel from both sides making their submissions. After listening to counsel, it was agreed that because the Court-Martial is scheduled to resume shortly, namely, 5th November 2001 I give a short oral decision with reasons later. This is what I am now doing.

The President of the General Court-Martial (First Respondent) dismissed the application by the Applicants to have the charges laid against them transferred to the High Court of Fiji or to an independent and impartial Court of law.

Relief sought

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

1. An order for Certiorari to remove into the High Court of Fiji and quash the decision of the General Court Martial, sitting at the Officers Training School, Vatuwaqa, Suva, dated 17th September, 2001; and
   
2. An order of Prohibition directed to the President of the said General Court Martial, its members and Judge Advocate from further proceedings with the trial against the applicants on the nineteen charges so far filed and in the process of being tried;
   

AND THAT all proceedings on these charges be stayed until after the hearing of this application and the conclusion of these proceedings;

Grounds of relief

The following are the grounds of relief:

(i) That the convening officer and Commander of the Fiji Military Forces, Commodore Voreqe Bainimarama did not have the authorisation to convene the General Court Martial to try the applicants;

(ii) That the said General Court Martial erred in fact and law in holding that in the unique circumstances of the case a reasonable likelihood of bias was unlikely to occur;

(iii) That constitutional rights of the accused to be tried before a fair and impartial tribunal is unlikely to occur in this case given the unique and special circumstance it generates.

Consideration of the application

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 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. Bulewa 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