State v Commissioner of Prisons, ex parte Kubunavono [2003] FJHC 316; HBJ0013.2002S (18 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW HBJ0013 OF 2003

BETWEEN:

THE STATE

AND:

THE COMMISSIONER OF PRISONS
THE ATTORNEY-GENERAL OF FIJI

EX-PARTE:

VILIAME KUBUNAVONO
of Sulua Place Lot 168 Cunningham State 4,
PIO RIKOMAI
of Sele Road Caubati Housing,
ROPATE BALEIWAIYEVO
of Korovou Prison Compound, Suva,
MELI TAMANI
of Baulevu, Nausori,
EMOSI RAIKA
of Naboro Prison Compound and
KOLINIO MUSUKA
of Nakasi.

For Appellants - Mr. I. Fa
For Respondents - Ms S. Tabaiwalu

JUDGMENT

This is an application for judicial review of the decision of the Commissioner of Prisons dated 3^rd March 2003 discharging the applicants from the prison service. The reliefs sought are a certiorari to quash the said decision discharging the applicants and a declaration that the decision of the Commissioner of Prisons was made in breach of the rules of natural justice.

The grounds upon which reliefs are sought are that the first respondent acted in breach of the rules of natural justice as they were not given an opportunity to defend themselves against the allegations of wrong doing; he had failed to provide specific nature of the allegations of wrong doing and evidence in support of such allegations; that the first respondent was biased in his decision; that the decision is unfair; that the decision is unreasonable in the Wednesbury sense and that the first respondent took into account irrelevant considerations.

Mr. Fa filed his submissions. The respondents did not file any submissions though given the opportunity to do so.

FACTS:

The six applicants were all on 25^th of November 2002 appointed temporary prison officers in the Fiji Prison Service. Their letters of appointment (annexure A) to affidavit of Aisea Taoka shows effective date of appointment as 26^th November 2002 issued under the provisions of Section 11(4) of the Prisons Act Cap 86.

On 13^th December 2002 the applicants with others were asked to provide urine sample. The samples of urine were taken in empty coke/juice bottles. In their affidavits in support the applicants say samples were taken twice from them on 13t^h December 2002 but this is apparently incorrect. The second sample was in fact taken on 6^th January 2003. They alleged that samples were taken by persons not medically qualified and trained personnel. On 17^th February 2003 they received a memorandum saying they were suspected of smoking marijuana and that the urine had tested positive and the Commissioner wanted an explanation why the applicants should not be discharged from service. Each of the applicants gave explanation but they were discharged by letters dated 6^th March 2003 written by the Commissioner of Prisons. They were discharged pursuant to the provisions of Section 15(1)(c) of the Prisons Act.

The Commissioner of Prisons in his affidavit explained that the first samples of urine taken on 13th December 2002 were contaminated so a second sample was taken on 6^th January 2003. He agrees first samples were taken in coke/juice bottles. The second samples were taken in sterilized bottles. He annexed the results of urine samples of sixteen officers. The tests showed seven tested positive for traces of marijuana and the rest negative.

SUBMISSIONS BY APPLICANT:

Mr. Fa submitted that the Commissioner of Prisons failed to comply with the disciplinary procedure provided in Sections 32 and 33 of the Prisons Act. The applicants he said were Prison officers and should have been tried under Section 32 and 33.

The letters dated 17^th February 2003 to the applicants inform them that they are unlikely to become efficient officers and therefore it was intended to discharge them. The full text of the letter is as follows:

"IN CONFIDENCE

From: Commissioner of Prisons Phone No.: 3303512

To: T/POC Ropate Baleiwaiyevo File No.: PF. 71186

RE: DISCHARGE FROM THE SERVICE Date: 17/02/2003

{Your reference: ..............................................................}

----------------------------------------------------------------------------------------------------

A report received at this Headquarters from the Commandant, Staff Training College reveals that you are unlikely to become an efficient officer.

The report stated that on Friday 13/12/02, you were suspected of smoking marijuana in your barracks. An instruction was issued that you provide urine samples to be analysed by specialists and conduct THC Test by the Government Analyst. The result of such test has been confirmed to be positive.

Under the provision of Section 15 of the Prison Act Cap. 86 it is intended that you be discharged from the service. However, I write to invite you to show cause why you should not be discharged. Any written representations have to be submitted within 14 days and will be forwarded to the Secretary, Discipline Service Commission. If no written representation is received from you within 14 days you will be discharged in the manner prescribed by Section 15 of the Prison Act Cap. 86.

{Sgd:}
M. Ram
for Commissioner of Prisons

IN CONFIDENCE"

THE LAW – PRISONS ACT:

Section 15 of the Prisons Act reads:

"15. – (1) Subject to subsection (3) any officer of the Prisons Service other than a senior officer may be discharged by the Controller at any time -

(a) if he is pronounced by a Government medical officer to be mentally or physically unfit for further service;
(b) on reduction of establishment;
(c) if the Controller considers that he is unlikely to become, or has ceased to be, an efficient officer.

(2) Every officer of the Prisons Service discharged under the provisions of subsection (1) shall be given one month’s notice of intention to discharge him from the Prisons Service or at the option of the Controller one month’s pay in lieu of such notice.

(3) Where it is considered that any such officer should be so discharged, he shall be so informed and told that –

• (a) any representations made in writing by him within fourteen days, will be forwarded to the Secretary of the Public Service Commission, accompanied by all relevant papers and records for a decision to be made by the Commission; and that
  
• (b) if he makes no representations within fourteen days, he shall be discharged in the manner prescribed by this section."
  

Section 15 of the Prisons Act empowers the Controller of Prisons at anytime to discharge any officer other than a senior officer among other reasons if the Controller considers he is unlikely to become an efficient officer. It requires the Controller to inform such officer that if he wishes to make any representation, such officer must do it in fourteen days and such representation would be forwarded to Public Service Commission.

The letter sent to the applicants complied with the statutory requirement. It informed them that their urine samples had tested positive for marijuana. They all made representations giving reasons why they should not be discharged; they denied taking marijuana; some attacked the method of collecting the samples.

The sections namely 32 and 33, which Mr. Fa relied on, apply where an officer other than a senior officer is alleged to have committed an offence against discipline. In cases of offences against discipline a special procedure is prescribed. The applicants in these cases were not charged for an offence against discipline. The Prisons Act does not define an offence against discipline but Section 18 of the Prison Service regulations gives an exhaustive list of offences against discipline for the purposes of Section 29 of the Act. The applicants were not alleged to have committed one of those offences so they cannot ask that procedure laid in Section 32 and 33 be invoked in their case.

Mr. Fa also submitted that the Commissioner of Prisons breached rules of natural justice as he failed to give the applicants an opportunity to be heard on the allegations of wrongdoing or provide them with evidence that was available to support the allegations.

The decision to be taken by the Commission after representation could and did impinge on the applicants’ livelihood as they lost their employment. Additionally the allegations of smoking marijuana were a serious allegation. The issue is given the nature of allegations and gravity of consequences of any adverse finding, whether the bare representation made in writing as stipulated in Section 15 is enough or are they entitled to a more thorough investigation before a decision was made.

CASE LAW:

A person must be given a fair opportunity to be heard. The legal position was summed up by the Supreme Court in The Permanent Secretary for Public Service Commission & Another v. Lepani Matea – 9 of 1998 as follows at page 4:

"There are numerous authorities establishing, at common law, that where someone’s livelihood is at stake that person is entitled to a fair opportunity of a hearing unless the relevant legislation has clearly excluded it. There is a presumption that natural justice applies; or, as Lord Reid put it in Wiseman v. Borneman 1971 A.C. 298, the courts supplement procedure laid down in legislation if the statutory procedure is insufficient to achieve justice and additional steps would not frustrate the apparent purpose of the legislation."

The purpose of section 15 is to ensure that those who are physically fit and mentally alert ought to be employed by the Prisons Department. Given the nature of the occupants of the prison, it is not a place for the weak or those drowsed by drinks or drugs. Escapes can happen suddenly, a guard may be taken hostage, fights between prisoners can break out. Hence the officers need to be those who can react quickly to such situations.

The Prisons Act has two different procedures laid – one for trial of offences under discipline and one for discharge under section 15. In the case of former Section 30 provides for tribunals with powers to impose any one or combination of punishments for the offences. Section 30(2) makes a specific provision for charges to be read and investigated in the presence of the officer and there is provision for opportunity to make defence. Hence in cases of offences against discipline, an oral hearing is stipulated at some stage by the legislative provisions. Opposed to above is Section 15 which is more restrictive and by implication the rights to the type of hearing which an applicant is entitled is that provided in Section 15 and no more. The legislative intent is very clear.

The Fiji Court of Appeal in The Permanent Secretary for Public Service Commission & Another v. Lepani Matea – FCA 16 of 1998 in considering when to imply rules of natural justice to provide a fair hearing into statutory provisions at page 10 succinctly summed the position as follows:

"The requirement that a person be given a fair opportunity to be heard before a body determines a matter that affects him adversely is so fundamental to any civilized legal system that it is to be presumed that the legislative body intended that a failure to observe it would render the decision null and void. If there are no words in the instrument setting up the deciding body requiring that such a person be heard the common law will supply the omission. It will imply the right to be given a fair opportunity to be heard. While the legislative body may exclude, limit or displace the rule it must be done clearly and expressly by words of plain intendment. The intention must be made unambiguously clear. Finally we add that what is a fair hearing will depend upon the circumstances of each case; it does not mean that in every case a right of personal appearance must be given."

CONCLUSION:

Contrary to Mr. Fa’s assertions, I am of the view that personal appearance and right to question those involved was not envisaged under Section 15. Such right is excluded when one considers the various provisions of the Prisons Act as stated above.

I therefore hold that the provisions of the Prisons Act were complied with by the Commissioner of Prisons and I find no reason to interfere with his decision. Accordingly the application for judicial review is dismissed with costs to be taxed if not agreed.

[ Jiten Singh ]
JUDGE

At Suva
18^th September 2003