FICAC v Kumar [2009] FJHC 76; HAC001.2009 (20 March 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 001/2009

FICAC

V

RAJESHWAR KUMAR; and
JASWANT KUMAR

Counsel: Mr. P.K. Madigan for FICAC
Mr. R. Chaudhary for both Accused

Hearing: 27th February 2009
Ruling: 20th March 2009

RULING

[1] The Accused persons, Rajeshwar Kumar and Jaswant Kumar are jointly charged with one count of abuse of office, and, in the alternative, one count of embezzlement. The first count alleges that on or about the 26th of May 2006 whilst being employed as Mayor, and Town Clerk of the Nasinu Town Council, they raised a Council cheque in the sum of $2,344.42 purportedly as payment to Post Fiji Ltd. but which in fact was cashed at Westpac Bank Nabua, which act was arbitrary, in abuse of office and which caused prejudice to the Nasinu Town Council. The alternative count alleges that the Accused fraudulently disposed of $2,344.42 which was received by them on account of the Nasinu Town Council for a purpose other than the purpose for which the money was entrusted to them.

[2] The charges were originally filed by FICAC on the 12th of December 2008 at the Nasinu Magistrates’ Court. The case was called there on the same day. The Accused pleaded not guilty. The defence made submissions on the legality of FICAC. FICAC applied for transfer of the case to the High Court under section 220 of the Criminal Procedure Code. The case was transferred on the same day.

[3] The matter was first called in the High Court on the 13th of February 2009. On the same day defence counsel said that he wished to challenge the legality of FICAC. The prosecution was ready to file Information, and has submitted Information for filing. I heard submissions from both parties. I have treated the defence submission as an application to either quash Information or an application that the proposed Information is invalid because of the invalidity of the prosecuting body. Both counsel made written and oral submissions.

[4] Counsel for the defence submitted that the President’s promulgation creating FICAC (the Fiji Independent Commission Against Corruption) is invalid because it was not passed by Parliament. He submitted that insofar as the High Court decision in Qarase & Others v. Bainimarama & Others [2008] Civil Action HBC 60.07S, HBC 398.07S purported to give the President powers to promulgate, it was wrong in law, and that in any event the FICAC promulgation did not fall within the scope of that decision because the President was not acting independently of the Interim Government.

[5] Counsel for the prosecution said that the decision of the High Court in Qarase v. Bainimarama (supra) was valid law unless and until it was set aside by a superior court, that FICAC had every right to investigate and prosecute pursuant to the provisions of the FICAC promulgation, that the President never passes law "on a whim but does so (in normal and abnormal times) on the advice of the executive and that any Information signed by the FICAC Commissioner was valid unless quashed by a superior court."

[6] In FICAC v. Inoke Devo [2008] HAC 177D.2007S, an application was made to quash the Information filed by FICAC in this court. No decision had been made at that time in the Qarase v. Bainimarama case. The defence application was that FICAC had no powers to investigate, or prosecute, or to file Information in the High Court. In that case I held that in the absence of any promulgation or legislation, any body or any organization could investigate or prosecute and that the right to privately investigate or prosecute was a civil right, preserved by both the Criminal Procedure Code and the Constitution. FICAC therefore had those rights irrespective of the validity of the FICAC promulgation. The judgment reads at paragraphs 25, 26, 27, 28 and 29:

"[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."

[7] In that case I refused to make orders on the validity of the Government, the ability of the President to promulgate in the absence of Parliament, and the justiciability of the President’s powers to rule.

[8] My position on the matter remains the same. There is however one significant difference in the way this application is dealt with today. It is that the High Court (per Gates, Pathik and Byrne JJ) has now ruled on these self-same matters and the case is pending appeal in the Court of Appeal. According to the Court of Appeal calendar, the appeal is listed for the 6th of April 2009.

[9] The decision in Qarase v. Bainimarama (supra) provides a complete answer to this application made by the defence. In that case, the court was asked to consider whether the President’s decision to appoint Ministers in the Interim Government from the 5th of January to the 15th of January 2007 was amenable to judicial review, and if it was, whether he had acted lawfully. The decision was firstly about the existence of "reserve" prerogative powers, secondly about the justiciability of those powers, and thirdly if those powers were capable of judicial review, about the correctness and constitutionality of those powers. At paragraph 75 of the judgment their Lordships in setting out the facts said inter alia:

"The President gave directions for the absolving of the Commander and his men and to facilitate their immunity. He said he wanted to see enforced a genuine democracy and to take the country to elections with an advanced electoral system at the right time. He intended to have set up an Anti-Corruption Unit. But firstly paramountcy was to be given to national security. All of this was contained in his address to the nation on 4th January 2007."

[10] After a discussion on the law on prerogative powers, when they are exercisable by the President, and the extent to which they are reviewable by the courts (in the absence of bad faith) the High Court found that the President had powers to act in an emergency not provided for in the Constitution, that the action taken by the President was "reasonably necessary in the interests of peace, order and good government", that his actions were designed "to protect a wide variety of competing rights from displacement by avoiding conflagration" and that his action did not consolidate any revolution. The Court said (at paragraph 163):

"The Constitution remained and remains intact. The government exists in the interim by way of direct Presidential rule with His Excellency being advised by a Prime Minister and Cabinet of Ministers."

And at paragraph 164:

"It is necessary to say something about the President’s power to promulgate legislation prior to the return of Parliament. Parliament is the constitutional forum for the consideration of new legislation. It would be constitutionally appropriate for the incoming Parliament to consider all decrees or Promulgations made in the intervening period which have not received the scrutiny of the full Parliamentary process. Promulgations with far reaching effect on the lives of citizens such as the FICAC promulgation require such scrutiny and representative assent. Meanwhile such legislation is of lawful effect. Subsequently it will be for Parliament to decide whether to continue with such legislation or whether some amendment is necessary."

[11] At paragraph 171 the court held:

"In the absence of mala fides or arbitrariness the existence only and not the exercise of the President’s powers to appoint ministers was capable of judicial review."

And at paragraph 173:

"The declaratory orders of the court are:

(i) The plaintiff’s originating summons is dismissed.

(ii) The decision of the President to ratify the dismissal of the Prime Minister and his ministers, to appoint Dr. Senilagakali as Caretaker Prime Minister to advise the dissolution of Parliament, and the dissolution of Parliament itself, are held to have been valid and lawful acts in exercise of the prerogative powers of the Head of State to act for the public good in a crisis.

(iii) For the same reasons the further decision of the President to rule directly pending the holding of fresh, fair and accurate elections is upheld as valid and lawful.

(iv) For the same reasons, the President’s decision to make and promulgate legislation in the interest of peace, order and good government in the intervening period prior to a new Parliament is upheld as valid and lawful.

(v) The grant of immunity by Promulgation was similarly within the powers of the President in the emergency, and such grant is upheld as valid and lawful."

[12] Defence counsel asks me to revisit this decision. He bases his application on three main grounds. Firstly that the FICAC promulgation in its preamble suggests that the President acted not in the interest of peace, order and good government, but on the advice of the Interim Government. Secondly that the High Court is not bound to follow decisions made by an earlier High Court, differently constituted. Thirdly that the decision in Qarase v. Bainimarama (supra) conflicted with the decision of Gates J in Koroi v. Commissioner for Inland Revenue [2001] HBC 0179.2001, and that the latter decision was that the existence of decrees and promulgations should pass the test of necessity. Fourthly that the position of the Acting Chief Justice in the Qarase v. Bainimarama case was questionable and that it raised "issues of possible bias and conflict."

[13] Counsel for FICAC said in response to these submissions that they were political submissions and not legal submissions, that they had all been dealt with in the course of the Qarase v. Bainimarama case, and that a suggestion that the bench was biased in the Qarase case was reprehensible.

[14] The parties in the Qarase v. Bainimarama case were, the State, Commodore Bainimarama, the Republic of Fiji Military Forces and the Attorney-General. The Human Rights Commission appeared as amici curaiae. I assume that each of these parties will be represented at the hearing of the appeal in the Court of Appeal. Counsel for the defence asks me, in effect, to overturn the decision in Qarase v. Bainimarama without hearing from any of those parties. Defence counsel submitted that when the President promulgated the FICAC promulgation, he did so not in the interests of peace, order and good government but because he was being improperly dictated to by the Interim Government. He asks me to make this finding on the basis of the wording of the Preamble and without hearing from a representative of the President or the State. Defence counsel asks me to find that the court in the Qarase v. Bainimarama case was questionable on the ground of bias, when bias was not raised before the presiding judges themselves, and when the Acting Chief Justice sat in that decision as a High Court judge and not as the Acting Chief Justice. He was appointed a High Court judge long before the events of 2006.

[15] A court of equal jurisdiction can certainly revisit earlier decisions made by the court differently constituted. There can be no doubt about it. In 2004 for instance the House of Lords revisited its own decision, made in 1982 (Caldwell [1982] UKHL 1; (1982) AC 341) in relation to the legal definition of recklessness (R v. G [2003] UKHL 50; [2004] 1 AC 1034).

[16] In Inoke Devo I respectfully disagreed with the decision of Winter J in Sanjay Jentilal Khera and Others v. FICAC HBM 034 of 2007 on the basis that when he ruled that the DPP and only the DPP could prosecute, his Lordship’s attention had not been drawn to section 114 of the Constitution. I accept therefore the courts of equal jurisdiction can disagree with each other, and revisit earlier decisions. Counsel for the defence has drawn my attention to several other cases (for instance R v. R (1991) ALL ER) where courts have done so in other jurisdictions.

[17] However any such revisiting should be done after hearing from all parties and ensuring that any such revisiting is thoughtful, informed and correct. That should certainly not be done after hearing only from the accused and from FICAC in a criminal hearing on the quashing of an Information. I said as much in Inoke Devo (supra) at paragraph 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."

[18] In that case I held that until the question of the President’s power to legislate was properly and judicially determined, FICAC would not be permitted to file an Information in the High Court but would have to conduct its prosecutions in the Magistrates’ Court as "private" prosecutions under the Criminal Procedure Code. My decision in Inoke Devo is binding on the Magistrates’ Courts and I am surprised that defence counsel raised the issue of the validity of FICAC prosecutions in the Magistrates’ Court after my ruling in the matter.

[19] The question of the President’s legislative powers has now been judicially determined. Until and unless the decision of Qarase v. Bainimarama is set aside on appeal, the FICAC promulgation is valid and must be given effect by the High Court and the Magistrates’ Court. It is not for this court to conduct an enquiry into what the President thought he was doing when he wrote the following words in the preamble of the Promulgation:

"In exercise of the powers conferred upon the Interim Government and upon the exercise of my own deliberate judgment ...... and with the approval of Cabinet, I Josefa Iloilovatu Uluivuda President of the Republic of the Fiji Islands hereby make this promulgation."

[20] Nor do I find it extraordinary that the President acted on the advice of Cabinet before signing the Promulgation. As was said in Qarase v. Bainimarama at paragraph 163:

"The government exists in the interim by way of direct Presidential rule with His Excellency being advised by a Prime Minister and Cabinet of Ministers."

[21] It appears, from the wording of the preamble to the FICAC Promulgation, that is precisely what His Excellency did when he signed it. I note further that the High Court in Qarase v. Bainimarama specifically considered the decisions of Gates J in Commissioner of Inland Revenue v. Koroi (supra) and said that the test applied in that case of what was necessary was "an unnecessarily narrow interpretation."

[22] I decline to overrule Qarase v. Bainimarama. I decline to find the FICAC promulgation invalid and of no effect. This application is dismissed for the reasons I have given. Information may be filed and pleas taken.

Nazhat Shameem
JUDGE

At Suva
20th March 2009