Fiji Independent Commission Against Corruption v Devo [2008] FJHC 132; HAC177D.2007S (27 June 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 177 of 2007

FICAC

v.

INOKE DEVO

Hearing: 28th May 2008 – 13th June 2008
Ruling: 27th June 2008

Counsel: Ms S. Shah for FICAC
Mr. A. Seru with Mr. D. Sharma for Accused
Mr. A. Elliot for Director of Public Prosecutions

RULING

The application

[1] The Accused makes an application to quash the Information. Although it is made under section 120 of the Constitution, and pursuant to the High Court’s inherent powers, the power given to the High Court to quash an Information, is given by section 275 of the Criminal Procedure Code. That section provides:

"If any information does not state, and cannot by any amendment authorized by section 274 be made to state, any offence of which the accused has had notice, it shall be quashed either on notice made before the accused pleads or on a motion made in arrest of judgment."

[2] The motion filed in Court on the 7th of February 2008 seeks declarations which go far beyond the scope of section 275 of the Criminal Procedure Code. Indeed they go far beyond any powers given to the criminal High Court even in the exercise of its inherent powers to regulate its own proceedings. They are:

1. A declaration that FICAC has no constitutional authority to institute and conduct criminal proceedings which is vested only in the Director of Public Prosecutions under the Constitution.

2. A declaration that any promulgation by the interim government signed by His Excellency the President is contrary to the provisions of the Constitution and is therefore null and void and of no legal effect.

3. A declaration that Promulgation No. 33 of 2007, dated 27th September 2007 which seeks to amend the powers of the Director of Public Prosecutions to institute and conduct criminal proceedings by amending the Criminal Procedure Code is an attempt to amend the Constitution and is therefore null and void and of no legal effect.

4. A declaration that the executive authority of the State under the Constitution vested in the President is that he acts only on the advice of Cabinet or a Minister as prescribed by the Constitution.

5. A declaration that the power to make laws under the Constitution vests in Parliament and the promulgations issued by His Excellency are unconstitutional and are null and void.

6. An order that the Information filed by FICAC is contrary to the Constitution and should be quashed forthwith.

[3] The motion is supported by the affidavit of Inoke Devo (the Accused). It sets out the following relevant facts. The Accused was charged by FICAC (the Fiji Independent Commission Against Corruption) on the 2nd of October 2007, on five counts of offences under the Penal Code. They are one count of official corruption, two counts of extortion by public officers, and two counts of misconduct by public officers. On the 11th of January the two counts of misconduct were amended and substituted with two counts of abuse of office.

[4] The affidavit states that the Accused was surprised to see that his prosecution was conducted, not by the Director of Public Prosecutions, but by a FICAC prosecutor. He states that he understands from his solicitor that only the DPP "has the constitutional authority and power to institute and conduct criminal proceedings." He refers to amendments to the Criminal Procedure Code by Promulgation No. 33 of 2007 which gives FICAC the right to appoint public prosecutors for any case conducted in the name of FICAC, and says that he believes that this provision is contrary to section 114(4)(a) of the Constitution which protects the independence of the DPP’s Office.

The case history

[5] In considering this application, it is necessary firstly to summarise the history of the proceedings both in the Magistrate’s Court and in the High Court.

[6] The charges were first laid on the 2nd of October 2007. They were laid by a prosecutor for FICAC, and allege corruption in the issuing of liquor licences, misuse of government vehicles to collect beer and spirits from liquor outlets for the Accused’s own use by falsifying running sheets, and the misuse of government vehicles to collect waste food from Nausori restaurants to deliver to his personal pig sty.

[7] On the day of first call in the Nausori Magistrates’ Court, bail was granted after the Accused pleaded not guilty. The case was adjourned for disclosure. On the 6th of November 2007, the defence asked for the case to be transferred to the High Court "because the issues raised are constitutional issues." The prosecution did not object and on the 26th of November 2007, the Resident Magistrate transferred the case to the High Court. The Accused was ordered to appear in the High Court on the 7th of December 2007. One week earlier on the 16th of November 2007, the learned Magistrate referred questions about the power of the President to legislate to the High Court. However, that ruling appears to have been superseded by her transfer order of the 26th of November 2007.

[8] The case was called in the High Court on the 7th of December 2007. On the 11th of December 2007 Mr. Seru for the Accused said that he would file an application to quash Information. FICAC was given a month to file Information and disclosure.

[9] On the 14th of January 2008, I informed both counsel that the Accused was a close relative of my Personal Assistant and asked them if they would prefer another judge to hear the case. Both counsel asked me not to do so, and my own view is that because I do not know the Accused person, there is no reasonable apprehension of a bias against the prosecution. On the same day, Information and disclosure were filed, and the defence was given 21 days to file a motion to quash the Information. There was then some delay in the filing of the defence motion. On the 11th of April 2008, when the matter was supposed to be heard, the defence asked for more time to file further submissions. Because of the continuing delay, I set a trial date for the Accused, for one week commencing on the 13th of October 2008. The hearing of the motion to quash was set for the 2nd of May 2008.

[10] On that date I heard from both counsel, but because the powers of the DPP were discussed at length, it was agreed that the DPP should be invited to make submissions in the matter. Mr. Elliot appeared for the DPP on the 28th of May 2008 and made comprehensive submissions to assist the court. Because he was addressing the court from a position of neutrality on the matter, his submissions were of great assistance. He asked for time to file further written submissions on the history of the private prosecution, and of the office of the DPP. He was granted time and the 27th of June was fixed for judgment. In deciding on this matter, I accept that although the offences with which the Accused is charged are all Penal Code offences, created long before the events of 2006, in seeking to quash the Information, the Accused challenges the validity of it on the basis of the alleged invalidity of the signing authority – that is, of FICAC.

The submissions

[11] The submissions of counsel can be summarized in this way. Counsel for the Accused says that FICAC has no powers to prosecute, that only the Director of Public Prosecutions has powers to institute and conduct prosecutions in Fiji, that Promulgation No. 29 which purported to give FICAC powers to prosecute is null and void, and that the Information should be quashed because the amendment to the Criminal Procedure Code giving FICAC prosecutorial powers are unconstitutional.

[12] Counsel for FICAC submits that the question of the President’s powers to promulgate is currently before the (Civil) High Court and depends on that court’s determination on the scope of His Excellency’s prerogative powers, that in any event the prosecutorial powers given to FICAC are not unconstitutional as there are many statutory and private bodies which have powers to prosecute, that the DPP’s exclusive power to take over a prosecution and discontinue it is unaffected by the promulgation and that there has been no attempt to amend the Constitution by promulgation. Counsel for FICAC submits that in the absence of evidence of bad faith, the President’s prerogative powers are not reviewable and that until there is a ruling to the contrary the prosecutorial powers given to FICAC are valid.

[13] Counsel for the DPP agrees with counsel for FICAC that this court should await the decision of the Civil High Court. He also addressed me at length on the alternatives available to the court, if the civil court’s decision in Qarase v. Bainimarama & Others Civil Action HBC 60 of 2007 is that the President has no reserve powers to promulgate. His submissions were that defence counsel is wrong to say that only the DPP, and no one else, can prosecute. He submits that the right to privately prosecute is preserved by the Constitution and the common law, that the DPP preserves his constitutional rights and powers after Promulgation Nos. 28 and 29, that FICAC should be permitted to file Informations irrespective of the Civil High Court’s decision, and that if the Civil High Court’s decision is that there is no power to promulgate vested in the President, the DPP can simply consider taking over the prosecution and either proceeding to prosecute himself or terminating it by way of nolle prosequi. Alternatively the DPP could simply allow FICAC to continue with the prosecution.

[14] Counsel for the DPP in his written submissions submits that it is doubtful whether (if the powers of the President are justiciable) the FICAC promulgations are justified under the doctrine of necessity as defined by the Privy Council in Mitchell & Others v. DPP [1986] LRC (Const.) 35. That definition requires proof that (inter alia) the law should be "reasonably necessary in the interest of peace, order and good government; but it must not do more than is necessary or legislate beyond that;" However, he says that the determination of that issue does not determine the fate of the Information in this case. I set out his submissions in greater detail later in this judgment.

The declarations

[15] The declarations sought by the Accused are included in the relief sought by Qarase & Others v. Bainimarama & Others (supra). They ask for a declaration that the President has no powers to pass laws in the absence of Parliament.

[16] In considering whether or not this declaration is within the scope of this application, I am aware of several relevant matters. The first is that the question which requires determination is not whether FICAC prosecutions are justifiable under the doctrine of necessity (which is a reviewable question, and in my opinion capable of review by the High Court if the need arises) but whether the President’s powers to promulgate extra-constitutionally is reviewable by the courts. There is no doubt at all that the Constitution has a legislative formula for the passing of laws. The formula involves both Houses of Parliament, and Presidential assent. There is no doubt that since December 5th 2006, when Parliament was suspended by military intervention that formula cannot be followed. What I cannot accept however, is that a criminal court, without hearing from counsel appointed by the President, or from the interim Attorney-General or from the Solicitor-General on the scope and breadth of the President’s prerogative powers (if they exist), can determine the legality or otherwise of any promulgation passed by the President in the absence of Parliament.

[17] Counsel for FICAC has addressed me competently and exhaustively on the scope of the powers, and their reviewability by the Courts. She submitted that the President has executive authority under section 85 of the Constitution to make promulgations for peace, order and good governance and that this authority is not reviewable by the courts. She referred to Madzimbamuto v. Lardner-Bruke [1968] UKPC 2; [1969] AC 645 and Mitchell v. Director of Public Prosecutions [1986] LRC (Const.) 35 to show that these powers did exist, and to show that they were not reviewable unless the President could be shown to act in bad faith. She said, in the words of Justice Willes in Hele v. Barlow [1856] EngR 939; (1858) 140 ER 111, 345 that "private convenience must yield to public necessity." She said that since the decision in Laker Airways Ltd. v. Department of Trade [1977] QB, these prerogative powers have been subjected to judicial review, but are not always justiciable. In Hon. Juan Ponce Enrile, Secretary of National Defense; Gen Romeo Espino Chief of Staff, Armed Forces of the Philippines; and Gen. Fidel v. Ramos, Chief Philippine Constabulary [1974] PHSC 353, the Supreme Court of the Philippines sat to consider habeus corpus applications in relation to persons detained by the military. The detentions were authorized by a Presidential Promulgation of the 21st of September 1972. The judges of the Court were divided on a number of issues, one being the validity of the Presidential Promulgation. While the judgments were still pending, some of the detainees were released rendering the decision moot. However eight out of the twelve justices heard the case on its merits. The case arose out of the declaration of martial law by President Marcos, on September 21st 1972. All the justices agreed that a state of rebellion had existed in the country when the Promulgation had been issued. The judges were divided on whether the courts could ask whether the Promulgation was necessary given that state of rebellion. Those judges who considered the question justiciable, said that the test was not that of ordinary judicial review in civil or criminal cases, but was limited to deciding "merely whether he (the President) has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." The test, said Makalintal CJ, at page 3 of his judgment is "not whether the President’s decision is correct but whether, in suspending the writ [of habeus corpus] he did or did not act arbitrarily." The judges who found in favour of justiciability found no evidence of arbitrariness. The majority decided that the issue was not justiciable, and that in any event, events were overtaken by a public referendum on July 27th and 28th 1973 which decided in favour of the President remaining in office to fulfil the reforms he had initiated under martial law.

[18] I set out the background to this case, not only because it is referred to by counsel for FICAC, but also because it illustrates the complexity of the question of the validity of the Presidential Promulgations. In order to make any declarations on the issue, counsel must be fully heard on the issue of validity, necessity and justiciability. In the course of this hearing, only FICAC addressed me on the issue. The defence did not, saying simply that if something was not provided for under the Constitution, it was automatically null and void. Sadly, the law does not appear to support this proposition and I find myself unable to rule on the matter without the benefit of full argument and an opportunity given to the President and his counsel to address the court on the issue.

[19] The second part of FICAC’s submissions is that even if Promulgation 28 is later found to be invalid, this does not defeat this prosecution, because FICAC could simply be treated as a private prosecutor with common law powers to prosecute and subject to the DPP’s intervention. Counsel submitted that the private prosecution was a civil right, intended to be a check on the executive powers of the police and the DPP and that the only question for the court is whether FICAC is limited to Magistrates’ Court prosecutions (if the promulgation giving powers to FICAC to lay an Information is declared invalid) and whether this limitation is an interference with the right of the accused to a trial by assessors, or an interference with the right of the private prosecutor to lay charges triable in the High Court.

[20] The State’s submissions were very clear. Counsel for the State forcefully urged me not to make any declarations on the lawfulness of the President’s actions because that was already a matter before the civil court. He said that the question was not for a criminal court to consider because the President (and the Attorney) are not parties in a criminal trial. He said that until the issue was determined by the civil courts, the Information should be considered valid either because the laying of a charge is not an act given exclusively to the DPP, but in fact is a power given to all citizens and bodies or because the provisions in the Criminal Procedure Code specifying the DPP as the person who files Informations should be read as provisions aimed at ensuring a fair trial and not as excluding other prosecutors. He submitted that section 233 (of the Code) is concerned only with imposing time limits on the filing of Informations in the case of public prosecutions. He said:

"Its purpose is to provide a timetable for the filing of Informations in the High Court. This is a procedural recognition of the right to speedy trial, as provided for in section 29(3) of the Constitution."

And at paragraph 122 of his written submissions:

"Much clearer language would be required before one could interpret section 233 as a provision which was intended to grant to the DPP (and subsequently, the Commissioner of FICAC) exclusive rights to present an Information."

[21] He suggests though, that the section 233 requirements are binding only on prosecutions conducted by public prosecutors, and not to private citizens, because the Bill of Rights protections are intended to bind only persons holding public office. He refers of course to the traditional tension between the view that human rights are binding only on the State and the view that they are vertical and bind all of society.

[22] This reading of section 233 is therefore consistent with the ethos of the private prosecution – an ethos reflected in a number of House of Lords decisions specifically referring to the right of the citizen to prosecute as a check on executive authority.

[23] Finally he submits that the Attorney-General in Fiji may have a residual power to prosecute in common law. He referred to the Palm Island prosecution in Queensland in which (when the DPP refused to prosecute a case of the death of an Abroginal man in custody), the Attorney presented an ex-officio indictment (The Queen v. Hurley Supreme Court of Queensland, 12th–20th June 2007). I make no comment on this last submission, except to say that where the DPP is given powers to prosecute independently of the executive in a country with a written Constitution, the courts would need to be persuaded that the Attorney continues to have such residual powers.

[24] He further said that if the Information was quashed at this stage, there was nothing to prevent FICAC proceeding to trial in the Magistrates’ Court, or to prevent the DPP from taking over the prosecution at any stage and asking for a High Court trial.

The issues for determination

[25] The main issue for determination is of course whether the Accused has a charge against him by way of Information, of which he has had notice. The essential question is as to the validity of the Information.

[26] However, defence counsel asks me to make other declarations, leading to the quashing of Information which reflect on the validity of Promulgation 33, of the President’s powers to legislate, and of the validity of the current government. These other issues can be dealt with very quickly.

[27] The duty of the judiciary, and of every judge, when there has been a removal of the legislative arm of government is to apply the law fairly and impartially, and to uphold the Constitution in all things. Until the legality or otherwise of the governing regime or administration is determined, (when full argument has been heard) the role of the courts is to apply the law in a way which neither legitimizes usurpers, nor determines illegality without full argument. In other words, the courts and the judiciary are involved in a delicate "holding" process which is intended to uphold the rule of law without granting legitimacy to acts which might later be declared to be unlawful.

[28] At this point, the legality or validity of the President’s legislative powers, is yet to be determined. The High Court’s hearing on the matter, involved two weeks of argument on constitutionality, justiciability and scope of the prerogative powers. For the criminal courts to preempt that decision, not having had the benefit of full argument on the issue would be inappropriate and unjudicial. Of course courts of the same jurisdiction do not bind each other. However, if we are to disagree, it must be after all interested parties have been heard, and all relevant submissions made. Natural justice demands that of every judge.

[29] For these reasons I am unable to declare that the President’s powers to legislate are justiciable, and if they are, that they were unjustified in the promulgating of the FICAC Promulgation.

[30] In the absence of any determination as to the legality and validity of the FICAC Promulgation, what are the criminal courts to do in relation to FICAC prosecutions? Having heard from both Mr. Elliot and Ms Shah on the history and scope of private prosecutions, I accept that FICAC or any other body or person, whether created by statute or not, has common law powers to prosecute. This is acknowledged by the Constitution and the right is specifically provided for in the Criminal Procedure Code. It is quite clear that the Director of Public Prosecutions does not have exclusive rights to prosecute. He only has exclusive rights to intervene in someone else’s prosecution and to discontinue such a prosecution. Section 96(4) specifically provides for the existence of prosecutions brought by persons other than the DPP.

[31] Section 96(1) of the 1990 Constitution provided that there shall be a Director of Public Prosecutions whose office shall be a public office. The powers of the DPP were set out in section 96(4) of the Constitution. That section provided:

"The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do –

(a) to institute and undertake criminal proceedings before any court of law (not being a court established by a disciplinary law);

(b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted by himself or any other person or authority."

Section 96(6) provided that:

"The powers conferred upon the Director of Public Prosecutions by paragraphs (b) and (c) of subsection (4) of this section shall be vested in him to the exclusion of any other person or authority:

Provided that, where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the court.

(7) In the exercise of the powers conferred upon him by this section the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority."

[32] These powers and protections were preserved in the 1997 Constitution. Section 114(4) of the 1997 Constitution provides that:

"The Director of Public Prosecutions may:

(a) institute and conduct criminal proceedings;

(b) take over criminal proceedings that have been instituted by another person or authority; and

(c) discontinue, at any stage before judgment is delivered, criminal proceedings instituted or conducted by the Director of Public Prosecutions or another person or authority."

[33] Section 170(5) of the 1997 Constitution provides (in relation to a number of office-holders including the DPP):

"In the performance of his or her duties or functions or the exercise of his or her powers, a person to whom this Part applies is not subject to direction or control of any person or authority."

[34] The DPP is however subject to a limited form of judicial review, referred to by the Supreme Court in Livai Lila Matalulu and Another v. The DPP Civil Appeal No. CBV0002 of 1999S as "the accountability of the DPP under the rule of law." The issue of the review of the DPP’s decision is not relevant to this application, but the case itself is. The decision arose from a private prosecution for multiple counts of perjury. The DPP intervened (I was the DPP at that time) and entered a nolle prosequi. It was this decision which was the subject of a judicial review and then of two appeals. The Supreme Court at page 12 of its judgment specifically referred to the preservation of the right to prosecute by any person. The Court said:

"Also of importance is s.78 of the Criminal Procedure Code which provides for the laying of a complaint of the commission of an offence "by any person" and so encompasses the initiation of private prosecutions. This is however, subject to the constitutional power of the DPP to take over and discontinue such a prosecution. In that sense the DPP is empowered to regulate access to the criminal justice process."

[35] In LTA v. Ajay Singh [2003] FJCA 6 AAU00500.2002S the Court of Appeal considered the right of the Land Transport Authority to prosecute in the absence of any statutory provision. The court referred to section 77 of the Criminal Procedure Code, which provides that any person conducting a prosecution may do so personally or by barrister or solicitor, and said at page 2:

"It is perfectly clear that any person has the right to bring and to prosecute a case in court. When a police officer brings a case and prosecutes it, he does not do so by virtue of his position of a police officer, but because he is exercising the right of any member of the public to lay an information and prosecute an offence; Lund v. Thompson [1959] 1 QB283."

[36] Counsel for the DPP submits that this reference to police prosecutions as an example of private prosecutions is misleading. Police officers are public officers. However he submits that the Code envisages prosecutions being conducted by private persons and public officers. I agree.

[37] If therefore, the objection to the Information is that FICAC has no power to commence a prosecution (other than that conferred by Promulgation No. 29) that objection cannot be sustained. Whether or not that Promulgation is held to be invalid in some future case, any person can lay a complaint in the Magistrates’ Court and there is no power to refuse to accept such a complaint vested in the courts. The person laying the complaint needs no specific statutory authority to lay a charge. The FICAC promulgations make no difference to the ability of any person to institute prosecutions.

[38] To that end, I must respectfully disagree with the decision of my brother Winter J in Sanjay Jentilal Khera and Others v. FICAC HBM 034 of 2007. That was a case of alleged murder. The charge was laid by FICAC. In that case, his Lordship found at paragraph 4 of his judgment, that the DPP is "the only constitutional officer with the authority to .... institute and conduct criminal proceedings ...." And at paragraph 10, "The military takeover of the Government of Fiji has, it is said, left the Constitution of the Republic intact. Well if that be so then the inevitable conclusion is that when read together with section 233 of the Criminal Procedure Code it is that constitutional office the Director of Public Prosecutions and no other, who can institute and conduct proceedings before any court of law. I quote there the direct words used in the Constitution."

[39] It was perhaps not drawn to his Lordship’s attention that section 114 of the Constitution itself refers to prosecutions brought by persons other than the DPP. Further the direct words of the Constitution are not that only the DPP can prosecute, but that the DPP is given powers to prosecute. Those powers are clearly not exclusive to him. The power to enter a nolle prosequi is given to him under the Constitution and under section 71 of the Criminal Procedure Code. It is certainly arguable that insofar as the FICAC promulgation purports to give FICAC the power to enter a nolle prosequi, that provision is potentially inconsistent with section 114 of the Constitution. However this view is strictly obiter and may be canvassed in another case if and when the situation arises. In my respectful opinion, my brother Winter J erred when he concluded that the FICAC promulgation necessarily undermined the DPP’s constitutional powers to prosecute. With the existence of many other bodies and persons which have either a common law power or a statutory power to prosecute, such as the Fiji Police Force, the Land Transport Authority and the Suva City Council, the DPP’s constitutional role continues to be one which co-exists with those bodies and which (in the exercise of the nolle prosequi) is ultimately the regulator of the prosecution system of Fiji. If the FICAC promulgation is held to be valid, then FICAC will simply join a long list of statutory bodies with the power to prosecute subject to the DPP’s constitutional powers to intervene and discontinue.

[40] Even in the absence of statute (or a promulgation) any person or body has the right to institute prosecutions. Such a right is a civil right. Lord Wilberforce in Gouriet v. Union of Post Office Workers and Others [1977] UKHL 5; [1977] 3 ALL ER 70, 79 said this:

"The individual ... who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system though rarely exercised in relation to indictable offences, and though ultimately liable to be controlled by the Attorney-General (by taking over the prosecution and, if he thinks fit, entering a nolle prosequi) remains a valuable constitutional safeguard against inertia or partiality on the part of authority."

[41] FICAC then validly commenced this prosecution in the Magistrates’ Court.

[42] The real question for me is not therefore whether the charge was a valid one in the Magistrates’ Court. It was clearly valid. It is whether, a promulgation which purports to give FICAC the right to lay an Information in the High Court after transfer, can be given effect to, when the Criminal Procedure Code only provided for the laying of the Information of the DPP prior to the promulgation. In simple terms, and applying the principles of upholding the law and the Constitution without legitimizing what might later be held to be illegitimate, the immediate answer would appear to be to order that until the promulgations have been held to be valid, FICAC should only prosecute in the lower courts, pursuant to section 78 of the Criminal Procedure Code. However, as counsel for the DPP points out, the situation is not quite so simple. Section 233(1) of the Criminal Procedure Code, prior to the signing by the President of Promulgation 28, provided:

"An information charging an accused person and drawn up in accordance with section 235 shall be filed by the Director of Public Prosecutions with the Chief Registrar of the High Court within 21 days of the order for transfer except that the High Court may grant leave to extend the 21 days."

Section 235 provided:

"(1) Any information filed under section 233 shall be in the name of and (subject to section 72) signed by the Director of Public Prosecutions."

[43] On the 4th of April 2007, the President signed the Fiji Independent Commission Against Corruption (Promulgation No. 11 of 2007). The Promulgation gave to the Commission powers to prosecute "for any conduct which constituted a criminal offence at the time of its occurrence" and without prejudice to the DPP’s powers to prosecute or terminate prosecutions.

[44] On the 17th of August 2007, Winter J held in the Sanjay Khera case (supra) that FICAC’s powers to prosecute were contrary to the Constitution, and that only the DPP could lay an Information under the Criminal Procedure Code. On the 14th of September 2007, the President signed the "Fiji Independent Commission Against Corruption (Amendment) Promulgation 2007 (Promulgation No. 28 of 2007). It purported to amend section 233 of the Criminal Procedure Code to read "An information charging an accused person and drawn up in accordance with section 235 shall be filed by the Director of Public Prosecutions or the Commissioner of the Fiji Independent Commission Against Corruption." Section 235 of the Criminal Procedure Code is similarly purportedly amended to include the name of the Commissioner of FICAC. The Commissioner is also given the powers to enter a nolle prosequi, but I would assume (and again my comment in this regard is strictly obiter dicta) that this power is subject to the DPP’s overall power to terminate any criminal proceedings given to him under the Constitution.

[45] Counsel for the DPP invites me to find that the statutory reference to the DPP filing Information in the High Court should encompass all other public prosecutors whose cases are transferred to the High Court. He says this because, in his view, the provisions are intended to render the transfer to the High Court, orderly and fair to the accused. The time lines set, the clear guidelines for the laying of the Information and the way charges must be drafted, are not intended to give those powers exclusively to the DPP, but to ensure that whoever is prosecuting in the High Court must follow these rules to ensure a fair and orderly trial. He calls the provision one which sets out not a power to file an information but an obligation to do so, to ensure there is a fair trial and charges to which the accused has proper notice. Any other approach would be (he says) to fetter the right to privately prosecute by unfairly limiting it to Magistrates’ Court trial even when the charges are serious, and to unfairly fetter the right of the accused to choose a trial by assessors. Indeed, it is conceded by the defence in this case that the Accused himself wants to be tried in the High Court by assessors. Counsel for FICAC agrees with counsel for the DPP.

[46] The situation is indeed troubling. Once it is clear that FICAC (with or without a promulgation) has a right to prosecute anyone it wants (and subject to the control of the courts through the criminal trial), the effect of this application to quash the Information becomes potentially harmful to the Accused. To quash the Information would lead to a trial in the Magistrates’ Court, which the Accused does not want. Of course there is no automatic right to trial by assessors. That right has always been limited to more serious offences by statute. In 1988, after the 1987 military takeover, the right to trial by assessors was further restricted by Decree and the right now only exists in a small number of cases. However, there is nothing to stop an Accused person from asking the Magistrate to transfer the case to the High Court in the Magistrate’s own discretion, even if the offences are not "electable." That is what occurred in this case. Certainly in FICAC prosecutions there are many tactical or strategic reasons why the Accused would prefer High Court trial. However, if FICAC cannot lay an Information, the Magistrate will be unable to transfer a case to the High Court even in the most serious cases. This would be contrary to section 220 of the Criminal Procedure Code which provides:

"If before or during the course of a trial before a magistrate’s court, it appears to the magistrate that the case is one which ought to be tried by the High Court or if before the calling of evidence at trial an application in that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but shall transfer the case to the High Court under Part VII."

[47] Such a transfer can in principle be effected on the Magistrate’s discretion even on a charge (for instance) of disorderly conduct. A further complication arises in abuse of office charges. Before the Promulgation (No. 29) the DPP’s sanction was required before a charge was laid under section 111. After the promulgation, the Commissioner also has powers to grant such a sanction. If the FICAC promulgation is held to be invalid, the two abuse of office counts on the Information will also be invalid.

[48] I believe that this application did not anticipate results which were potentially unhelpful to the defence. Quashing the Information and forcing the Accused to stand trial in the Magistrates’ Court, on charges which are serious (as they indeed are) is unhelpful to the Accused.

[49] One option is to give the law that interpretation which is fairest to the accused, and to find that where the accused requests High Court trial or where the magistrate either has no jurisdiction to hear the case or is of the view that it should be heard in the High Court, that FICAC has the same powers to file Information as the DPP.

[50] A second option is to hold that until the validity of the promulgations is determined by the courts, FICAC should refer all cases it wishes to have prosecuted in the High Court, and all cases where the Accused wants High Court trial, to the DPP. The DPP can then file Information if he wishes to do so and either prosecute the case himself, or appoint a FICAC prosecutor under section 72 of the Criminal Procedure Code as a public prosecutor to conduct the prosecution in the High Court. Further, where FICAC wishes to lay a charge which requires the sanction of the DPP, such as a section 111 charge for abuse of office, FICAC must get that sanction before the charge is laid.

[51] I consider the second option to be preferable not only because it is consistent with the clear provisions of the Penal Code and Criminal Procedure Code prior to the promulgations, but also because this interpretation is mere consistent with the role of the DPP as the ultimate regulator of the criminal justice system. Although State counsel’s submissions on the "timetabling" character of section 233 of the Code are compelling, I consider it preferable to await statutory amendment to read the section to include other prosecutors.

[52] I accept that there may be a resulting delay after transfer and before the Information is filed. I accept that the DPP may be put under added work load pressure as a result of the referrals. I accept that the Commissioner of FICAC may consider such referrals to be an undermining of the independence of FICAC. However, until the validity of the promulgations is determined by the High Court, this path leads to the least possible damage if the promulgations are later held to be invalid. Finally, although this decision may be seen as a fetter on the civil right to privately prosecute, it is equally a fetter on the right to request trial by assessor, for accused persons. As I have said, the effect of this decision in other cases may be harmful to those accused persons who want High Court trial.

[53] I therefore hold that FICAC cannot lay an Information in the High Court until the validity of the promulgations is determined. I give FICAC time to refer the case to the DPP to give him the opportunity to file Information himself, and either appoint a public prosecutor within FICAC to prosecute or conduct the prosecution himself. In considering the charges to be included in any Information filed, it is a matter for the DPP whether he wishes to sanction charges for abuse of office.

Result

[54] The Information is quashed. However the transfer is valid and the Court awaits the DPP’s decision on a fresh Information. If the DPP refuses to file Information, it is a decision for FICAC whether it proceeds with this prosecution in the Magistrates’ Court.

[55] One final note. At the first hearing of this application, counsel for the defence submitted that although he did not support corruption, he made this application to stop FICAC "doing what it was doing." By that, I understood him to mean that he wanted to stop FICAC investigating and prosecuting corruption. However, that is not the role or the function of the criminal court. That is not the role of the court in considering an application to quash an Information. In the political situation which surrounds us all, it is important to remember that the law and legal principles protect the courts from causes and political influences. The existence of FICAC is a political and policy matter. The existence of the charge facing the Accused, and the need to ensure that he has a fair trial is a legal matter, ultimately is the sole concern of this court. It should also be the sole concern of counsel for the Accused, who represents the Accused not to further some political or policy aim, but to ensure that the Accused is fairly and lawfully tried.

Nazhat Shameem
JUDGE

At Suva
27th June 2008