Naduaniwai v Commander, Fiji Military Forces [2004] FJHC 223; HAM0016J.2004S (12 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM0016 OF 2004S

Between:

PENI NADUANIWAI
Applicant

And:

THE COMMANDER FIJI MILITARY FORCES
First Respondent

And:

THE STATE
Second Respondent

Hearing: 5th July 2004
Judgment: 12th July 2004

Counsel: Ms M. Waqavonovono for Applicant
Mr. K. Tuinaosara for Fiji Military Forces
Mr. B. Solanki for State

JUDGMENT

This is an application for constitutional redress. It was initially made by the Applicant in person. However, I recommended that he be represented by the Legal Aid Commission, and he is now represented by Ms Waqavonovono. The application, now made by Notice of Motion with supporting affidavit, seeks the following remedies:

1. A declaration that the Applicant’s right to a fair trial will be breached if he is tried for treason and wrongful confinement under military law;
   
2. A declaration that a court-martial could not be impartial if it involved the events of May 19th 2000;
   
3. An injunction ordering the court-martial proceedings against the Applicant to cease;
   
4. A stay of the court-martial until the High Court has determined the issues.
   

The affidavit of Peni Naduaniwai is filed in support. It sets out the background to his application. It states that he became a soldier in 1989, and was recruited into the First Meridian Squadron in 1990. The Squadron is also known as the Counter-Revolutionary Warfare Unit. The Director of the Unit was Major Ilisoni Ligairi.

Between 19th May 2000 and 13th July 2000 a group from this Unit were in Parliament. The group included the Applicant. They took orders from Major Ligairi. During this time, arms and ammunition were brought into Parliament by members of the Unit, apparently with the approval of some officers in the Fiji Military Forces. The Applicant said that the Army was divided and that one faction was regarded as the “rebel” faction. Between May and August 2000, Commodore Bainimarama, the Commander of the Army played a major role in resolving the conflict in Parliament. The hostages were released on 13th July 2000 and the soldiers in Parliament returned to barracks.

On the 13th of August 2000, the Applicant was arrested by the police and remanded on Nukulau. He was charged with treason and treason felony under the Penal Code, in relation to his role in the takeover of Parliament. A nolle prosequi was then entered against the Applicant. On the 9th of November 2000, he was re-arrested and charged with mutiny. He was tried by court-martial and on the 14th of November 2002 he was sentenced to 3 years imprisonment.

On the 10th of March 2003, he was again charged, on 7 counts for treason-related offences and wrongful confinement under the Penal Code, and for mutiny under the 1955 Army Act (U.K.). The offences are alleged to have been committed between the 19th and 26th of May 2000, and the court-martial, including the President and the Panel are appointed under the FMF Act by the Commander. The only non-military member of the Tribunal is the Judge Advocate. Paragraphs 28-31 of the affidavit read as follows:

“28. In the present case, Commodore Bainimarama has issued a convening order for a General Court-Martial. The following officers have been appointed: Colonel I. Kacisolomone (President), Commander S. Natuva, Lt. Col. John Pickering, Major S. Balawa, Captain P. Sloan, Captain J. Waqanisau, Captain S. Seru, Captain S. Motufaga and Captain Pio Tikoduadua.

29. The President of the Court-Martial Colonel Kacisolomone was a member of the Military Council that advised Commodore Bainimarama during the events of May 2000. All other officers who are members of the panel were loyal to the Commodore during and after the May 2000 conflict and who regarded us as the rebel or enemy soldiers.
    
30. The President and members of the Court- Martial Panel have yet to be sworn-in and I have been informed and believe that all defence counsels representing the 61 defendants object to their being sworn because they are of the view that the jurisdiction of the Court-Martial does not extend to inter alia treason cases.
    
31. I am informed that an application for leave to appeal to the Supreme Court on the issue of jurisdiction has been filed and will be heard in the September 2004 sitting of the Supreme Court.”
    

Further, paragraph 35 reads:

“35. Further, as the convenor, Commodore Bainimarama, cannot be impartial as he is an “interested party” as can also be deduced from the statements he has made to the media recently about those who were allegedly involved in the May 2000 events. Annexed hereto and marked “PN 2” are extracts from the various local newspapers which illustrate this point.”

Annexed to the affidavit are the charges, and several press cuttings which quote the Commander as having said that all those involved in the coup of 2000 should be brought to justice and left to “the hands of the law.”

In her well-researched submissions, counsel for the Applicant Ms Waqavonovono, submitted that the High Court had jurisdiction to firstly stay the court-martial and secondly to hold that it would be impossible for the Applicant to receive a fair hearing before any court-martial convened by the Commander.

In reply to the affidavit filed by the Applicant, Lieutenant Colonel Baledrokadroka Chief of Staff of the FMF, filed an affidavit on the 11th of June 2004. He states that the bringing of arms and ammunition into Parliament was an unlawful act, and if such an act was authorised by senior military officers, then such authorisation was also unlawful. He states that there “were certainly two groups of soldiers, the rebel ones who helped George Speight in trying to remove a democratically elected Government in Parliament and the loyal ones who remained true to their Oath of Allegiance to uphold the law of this country.” He further states that the President of the Court-Martial Colonel Kacisolomone was one of the many senior military officers who worked with the Commander after the 2000 coup. He states that the question of the jurisdiction of the court-martial to hear treason cases has been ruled upon and the question is currently before the Fiji Court of Appeal for determination, and in any event the Applicant is no longer charged with treason under the amended charges. Leave to the Supreme Court being refused by the Court of Appeal on the issue, there is now only an application before the Supreme Court appealing against the refusal of leave. The affidavit further states that under the Court-Martial Rules of Procedure, it is open to the Applicant to object to the officers who are members of the Court-Martial. Lastly, it states that the Commander as a person responsible for the security of the nation, has every right to express a view about the bringing of coup perpetrators to justice.

Jurisdiction

Counsel for the FMF firstly questions the jurisdiction of the High Court to inquire into the lawfulness of a court-martial hearing. He says that as Pathik J ruled in Lt. Charles Dakuliga and Ors. v. State JR 33 of 2001 a court-martial hearing is not a “subordinate court” hearing in relation to the High Court and therefore not subject to review. Further he says that a constitutional redress application is not appropriate in this case, when the Applicant already has alternative and available remedies available to him at the court-martial hearing. If he is dissatisfied with the decisions of the court-martial, then he has available remedies in the appellate process.

Obviously, if these submissions succeed, then it becomes unnecessary to consider the substantive complaint of a breach of the right to a fair trial. On the issue of alternative remedies, counsel for the Director of Public Prosecutions submits:

“It is the respectful submission of the State that the applicant ought to be making this application before the General Court-Martial and not before this Honourable Court. Any application on the basis of bias needs to be put before the General Court-Martial in order for the tribunal to have the opportunity to respond to the allegation of the likelihood of bias on their part. Should the ruling go against the applicant, the applicant has the option of taking his grievances to the Court of Appeal.”

In the case of Abhay Kumar Singh v. State HAM0043 of 2003S, I discussed the scope of a constitutional redress application where alternative remedies exist. In that case the applicant sought a re-trial determination on the issue of the admissibility of a tape-recorded conversation between the applicant and a man who was a prosecution witness in a case in which the applicant was defence counsel. I held that the applicant had an adequate alternative remedy in the trial process and the powers of the trial judge to determine the admissibility of all disputed evidence. The issue, in determining the scope of section 41(4) of the Constitution is whether any alternative remedy is an adequate one. Relevant is ready access by the applicant to any such remedy, and the efficacy or practicality of such remedy.

In this case the fact that the Applicant is a prisoner at the Maximum Security Prison, and has no apparent means, are relevant to the adequacy of available alternative remedies.

In Dakuliga & Others (supra), Pathik J considered an application for judicial review of a court martial proceeding on the ground of apprehended bias. The grounds for the application are remarkably similar to the application for constitutional redress before me. In considering whether leave should be granted, Pathik J held that a General Court-Martial was not susceptible to judicial review because it was a court of equal status to the High Court.

The same question arose in State v. General Court-Martial & Anr. ex parte Shane Stevens and Others J.R. No. 30/2001 and Pathik J came to the same conclusion. Neither of these applications were made, however in the Constitutional Redress jurisdiction of the High Court. In 21269 Staff Sergeant Maikeli Kaumaitotoya and Others v. Commander FMF and Others Mis. App. No. 1 of 2003, however the applicants who were members of the FMF awaiting trial by court martial for inter alia, treason and mutiny, did make their application in the constitutional redress jurisdiction of the High Court. They sought a declaration that their right to fair trial within a reasonable time had been breached. Pathik J did not consider whether he had jurisdiction to make the order sought (indeed the submission was not made to him that he had no such jurisdiction) and his decision was on the basis a declaration would produce no foreseeable consequences for the parties because a properly convened Court-Martial had been adjourned by consent of all parties to an agreed date. He held that the applicants could raise the issue of delay before the Court-Martial and that a declaration had “no practical consequence or utility.”

Penlington JA in Metuisela Railumu & Others v. Commander FMF & Others Civil Appeal No. ABU0043 of 2003S, considered the scope of the Constitutional Redress jurisdiction of the High Court in an application for leave to appeal out of time. In that case Jitoko J had considered a habeas corpus application in relation to the detention of soldiers awaiting court martial on charges arising out of events of 2nd November 2000. In refusing leave, his Lordship took into account the fact that a successful appeal could not have resulted in the grant of habeas corpus, that the applicants could raise their complaints at the court-martial and that an appeal would lead to further delay. He refused leave.

In none of these cases, did the High Court find that it had no jurisdiction to consider matters which might be within the jurisdiction also of a court-martial. Instead the High Court held that it was either undesirable, or futile to trespass into matters governed by Military Law. Similarly in Abhay Kumar Singh (supra) I did not rule out the possibility of constitutional redress in a court of similar jurisdiction. However I held it was inappropriate to rule on a matter which would not be binding on the brother judge who would eventually hear the case.

In this case, I consider that the High Court’s Constitutional jurisdiction to consider breaches of the Bill of Rights and to provide appropriate remedies, is a jurisdiction which is not to be lightly dismissed. Section 41 itself makes no exemption for proceedings governed by disciplinary law. Indeed section 41 of the Constitution is broadly drafted and must be assumed to apply to all matters where breaches of the Bill of Rights are alleged.

However, the existence of a jurisdiction to consider breaches of the Bill of Rights in matters governed by military law, does not automatically lead to the exercise of powers in that jurisdiction. The propriety of granting remedies in matters already before a General Court-Martial, and the existence of adequate remedies, are relevant.

In this case the Applicant alleges apprehended bias. He has not explained why he has not made the application before the Court-Martial, or why he considers it inappropriate to make such an application on the 13th of July 2004 when the Panel is sworn in. However as his alleged ground for bias is that any panel convened by the Commander is doomed because of the position taken by the Commander in relation to the upholding of the law, appears to suggest that he could never receive a fair trial by Court-Martial.

I find the basis of the application difficult to understand. If the Commander is alleged to be biased against all rebel soldiers because they allegedly assisted in the unlawful takeover of the Government, then every judge, magistrate, and tribunal who considers himself or herself a supporter of the law and an enemy of crime, would be assumed to be biased against criminals. To say that you are against crime, or illegal coups, or unlawful mutinies is not to say that you have a pre-disposition or a bias against individual accused persons who are presumed to be innocent until proven guilty. Further, to say that all persons should be subject to the law, or should be “brought to justice” is to assert a faith in the justice system. It is not to allege guilt without proof. I make these comments because I consider that an application on the ground of apprehended bias must always be carefully and responsibly made, and on sufficient grounds.

Thus in Findlay v. UK ECHR, a decision submitted by counsel for the Applicant, the basis for the allegation of bias was that the members of the Court-Martial were subordinate in rank to the convening officer and the prosecuting authority. The European Court found that there were “fundamental flaws in the court-martial system which were not remedied by the presence of safeguards, such as the involvement of the judge advocate”, and that there had been a violation of the right to a fair hearing by an independent and impartial hearing.

However the question for the High Court is not whether a case for bias has been shown, and therefore a breach of the Constitutional right to a fair hearing by an impartial tribunal, but whether this application is more appropriately brought at the Court-Martial on the 13th of July.

In all cases of apprehended bias, the initial application must be ordinarily brought before the tribunal itself. If the application for disqualification is refused, then there is usually a right of appeal against such refusal. Further, in cases of apprehended bias based on a belief in a pre-disposition, the way in which the proceedings are conducted is crucial to any appeal from the refusal to recuse (Amina Begum Koya v. State).

Lastly, a tribunal’s knowledge about an accused’s previous convictions, or about a previous trial of the accused’s does lead to automatic disqualification unless there is evidence that there is a pre-existing hostility or pre-disposition.

In practical terms, not only is it impossible to ascertain any of these matters when all proceedings at pre-hearing stages have been conducted under military law and in another “court”, but the High Court is unable in any way to assess how the proceedings will be conducted in due course. The Court of Appeal on the other hand will have the benefit of all material and all transcripts of evidence at the Court-Martial. All I have before me is a rather bald assertion that Commodore Bainimarama was and is against armed rebellions and coups, and that this translates into a pre-disposition or hostility against the Applicant, which has been adopted also by the members of the court-martial he convened.

In the circumstances I find myself unable to consider this application. Clearly the Applicant has a logical and available remedy in the challenge to the Court-Martial on the 13th of July 2004. He then has a clear and obvious right of appeal from any refusal of that challenge to the Court of Appeal and, subject to leave being granted, thenceforth to the Supreme Court. These courts would have the advantage of hearing not only Ms Waqavonovono’s submissions on apprehended bias in cases of courts-martial, but also of having information about existing charges, previous charges and amended charges. Further, the Court of Appeal (and possibly the Supreme Court) would have the benefit of transcripts with details about the way in which any hearing was conducted.

In the circumstances I consider that the Applicant has adequate alternative remedies in the Court-Martial procedures and I refuse to grant relief accordingly. There will be no order for costs.

Nazhat Shameem
JUDGE

At Suva
12th July 2004