In re Application by Aiyaz Ali [2005] FJHC 255; HBM0079.2004 (29 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBM0079 OF 2004

BETWEEN:

IN THE MATTER OF AN APPLICATION FOR
CONSTITUTIONAL REDRESS BY AIYAZ ALI
APPLICANT

AND:

THE STATE
RESPONDENT

Applicant appeared in Person
Ms M. Lord for the Respondent
Mr. U. Ratuvili of Human Rights Commission

Date of Hearing: 11th August 2005
Date of Judgment: 29th August 2005

JUDGMENT

Recently the High Court has received a deluge of applications for Constitutional redress from convicted prisoners serving sentences of imprisonment. Generally the application is in the form of a letter with sections of the Bill of Rights provisions from the Constitution copied verbatim. These letters are addressed to the Chief Registrar who then directs them to the Civil Registry. The application before me was similar in nature. I heard the matter and dismissed it verbally explaining my reasons to the applicant with written judgment to follow.

The application was made to look like a Constitutional redress issue. The applicant had two complaints: first, a loss of pair of Nike shoes and a T-shirt worth $180.00 which were kept in the custody of the reception officer, secondly complaint of brutal assault on 1st October 2004. As far as the first matter was concerned that has been sorted out as the relevant officer was negligent and he was made to pay for the missing items. That is disclosed in the affidavit of AISEA TAOKA. This is no longer an issue now.

As far as the assault is concerned, Aisea Taoka in his affidavit deposes that an officer Talau Vakacegu back-slapped the applicant who suffered a bleeding nose. The medical certificate was attached showing fracture of nasal bone.

The applicant wants to have the relevant officer charged for assault even though he has been disciplined internally by the Prison Department and seeks damages for injuries suffered.

An isolated incident of assault is an offence under the Penal Code and may also be subject of damages in tort. To elevate these under the evocative banner of abuse of human rights is to really abuse of process. The Redress Rules do not provide a parallel process where other remedies are available. To use the constitutional redress process as a substitute for normal procedures is to devalue the utility of this constitutional remedy. The applications under the Redress Rules are not a short cut or a system to by-pass existing mechanisms in law. Section 41 of the Constitution is not an Alladin’s cave which contains all the remedies for all the ills and the Redress Rules the magical words “open sesame” which are keys to those remedies.

Section 41(4) of the Constitution endorses my above remarks and provides that the court may refuse to grant relief if “adequate alternative remedy” is available to the person concerned. In the present case the applicant has following alternative remedies available to him.

(a) complain to police about assault
(b) File writ in Magistrate Court for damages for his injuries which are minor.
(c) Additionally there are the provisions of the Prisons Act Cap 86.

Section 44 of the Prisons Act requires weekly visits to prison by resident Magistrates. Under Regulation 157 of the Prison Regulations the Magistrates are amongst other things required to hear and inquire into complaints by prisoners and ensure that any abuses which come to their knowledge are brought to notice of the Controller. Regulation 158 contains powers of visiting justices. These empower a visiting justice to visit every cell, inspect and test the quality of food, inquire into complaint or request by a prisoner and even inquire into the state of prison buildings and report to Controller if there is need for repairs. The applicant could have complained to the visiting justice or written to the Chief Magistrate instead of seeking constitutional redress.

Statutory remedies exist to address the type of complaints raised by prisoners in their letters recently. They should use these remedies instead of clogging the High Court civil list with their applications.

It is for these reasons the application is dismissed and relief refused.

[ Jiten Singh ]
JUDGE

At Suva
29th August 2005