Rakula v Attorney-General of Fiji [2005] FJHC 423; HBM0063D.2004S (17 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISC. CASE NO. HBM0063D OF 2004S

IN THE MATTER of an application for Constitutional Redress
pursuant to section 41 of the Constitution.

BETWEEN:

LASARUSA RAKULA
APPLICANT

AND:

THE ATTORNEY-GENERAL OF FIJI
1ST RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTION
2ND RESPONDENT

Appellant: In Person
Counsel for the 1st Respondent: H. Rabuku: Attorney-General’s Chambers.
Counsel for the 2nd Respondent: Ms K. Bavou: D.P.P.’s Office
Human Rights Commission (as Amicus Curae): U. Ratuvili

Date of Decision: 17 November, 2005
Time of Decision: 9.30 a.m.

DECISION

The Applicant was convicted at the Lautoka Magistrates Court on 19 May 2003 of robbery with violence and unlawful use of motor vehicle and sentenced to 7½ years of imprisonment. On appeal, the High Court reduced the sentence to 5 years. The Applicant subsequently appealed to the Court of Appeal and in dismissing his appeal on 26 November 2004, the Court held that there were no merits in the grounds of appeal raised by the Appellant.

The Appellant had meanwhile applied to this Court under section 41 (1) of the Constitution for redress, citing breaches of his rights for the assaults against him by the police. Under the Constitutional Redress Rules, the complaint should have been filed 30 days from the occurrence of the event which gave rise to the complaints. In this instance, the complaint of assaults committed by the police, would have occurred prior to May 2003. It is patently obvious that the 30 days requirement under the Rules had not been complied with by the Applicant. But as I had stated in Metuisela Railumu v. The Commander RFMF HBM0081.2002, the 30 days requirement is unconstitutional and that the applicable time frame for lodging of complaints should be, in the absence of a more appropriate time to replace the 30 days, done within a reasonable time, given the circumstances of the case. Even if this Court were to use the yardstick of reasonable time in this case, I do not believe that the two (2) years that had intervened or lapsed from time of the incident(s) could be regarded even in the most sympathetic circumstances as reasonable.

This is the Respondent’s Summons to strike out the Applicant’s application on the grounds specified under Order 18 r. 18 (1) (a) to (d), and under the inherent jurisdiction of the Court. The Respondent’s arguments are simple. The Applicant’s claim for Constitutional Redress is primarily for alleged breaches of his rights under sections 25 (1) and 27 (1) (d) of the Constitution. Section 25 (1) states that:

“Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhuman, degrading or disproportionately severe treatment or punishment.”

Section 27 (1) (d) protects the right of a detainee or arrested person to be visited by his “his or her spouse and a religious Counsellor or social worker.”

In respect of breaches under section 25 (1), the Applicant alleged assaults and torture at the hands of the police before charges were laid against him. The Respondents argue that the issue was never raised in the lower Court and was only raised on appeal. Both the High Court and the Court of Appeal found insufficient evidence to the allegation. As to the claim under section 27 (1) (d) the Respondent’s say that the Appellant has not exhausted alternative remedies such as appealings to the Commissioner of Prison or to the Office of the Ombudsman or the Human Rights Commission for redress of the breach.

In the Court’s view, the fact that the issue of assault had not been raised by the Appellant in the criminal proceedings does not prevent him from raising it in a Constitutional Redress proceedings. The Court of Appeal had merely noted that while the Appellant had raised the matter with them, there were insufficient evidence before the Court for it to determine the truth or otherwise of the allegation.

The more pertinent issue however is whether the Appellant had exhausted all alternative remedies. In both claims under section 25 (1) and section 27 (1) (d) the Appellant clearly had alternative remedies available to him. He admitted in his bail application before the Court of Appeal, that his complaint on police assault had been referred to the Human Rights Commission. According to Counsel for the Commission, the complaint had in fact been lodged with them by the Appellant in 2003, while his criminal trial was under way. But the Commission, under section 27 of the Act, may not proceed to investigate the complaint if the same matter is being dealt with in another forum. Even so, the Appellant still had the opportunity to pursue alternative remedies by filing complaints in respect of assaults to the Commissioner of Police and/or filing Writ action for damages in Court. As for alleged breaches of his rights under section 27 (1) (d) of the Constitution, the Appellant merely had to alert the Commissioner of Prisons, the Office of the Ombudsman or any of the Visiting Magistrates of any effort to deny his spouse access to him. As Singh J observed in In the Matter of An Application for Constitutional Redress by Aiyaz Ali CA HBM0079.2004, the right granted to a person under section 41 of the Constitution to make an application to the High Court for Constitutional redress for any breach of his rights under Chapter, 4 is not absolute. It is not intended that every singular breach of an individual’s right guaranteed under the Constitution gives rise to a section 41 proceedings. To allow this to happen would be an abuse of the process as clearly there are existing and adequate alternative remedies that remain available.

In this case, the Appellant has clearly not exhausted all the alternative remedies that remain available to him.

In any case, considering the intervening period of 2 years that had lapsed from the time the alleged offences occurred to the filing of the application, I rule that the Appellant had failed to comply within a reasonable time to file as required under Rule 3 of the High Court (Constitutional Redress) Rules.

The Application is Struck Out.

F. Jitoko
JUDGE

At Suva
17 November, 2005