Ratabua v Commissioner of Corrections [2020] FJHC 229; HBM083.2019 (24 March 2020)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBM 83 of 2019

IN THE MATER of an application for Constitutional Redress under

section 13(1)(k) of the Constitution.

BETWEEN

LIVAI KAIVITI RATABUA

APPLICANT

AND

COMISSIONER OF CORRECTIONS

FIRST RESPONDENT

AND

ATTORNEY GENERAL OF FIJI

SECOND RESPONDENT

Counsel : Applicant in Person

Ms. N. Ali for the Respondents

Date of Hearing : 17^th February 2020

Date of Judgment : 24^th March 2020

JUDGMENT

[1] The applicant who is a serving inmate at Medium Corrections Centre filed this application for constitutional redress seeking an interpretation of section 13(1)(k) of the Constitution and if his rights under the said section has been denied an order preventing it.

[2] This application was objected to by the respondents on the ground that it has failed to fulfill the conditions outlined under Orders 3 and 4 of the High Court (Constitutional Redress) Rules 2015 (Rules).

[3] Order 3 of the Rules provide:

(1) An application to the High Court for redress under section 44(1) of the Constitution of the Republic of Fiji may be made by a motion supported by affidavit –

• (a) claiming a declaration;
• (b) praying for an injunction;
• (c) claiming or praying for such other order as may be appropriate.

(2) An application under paragraph (1) must not be admitted or entertained after 60 days from the date when the matter at issue first arose unless a judge finds there are exceptional circumstances and that it is just to hear the application outside of that period.

[4] Order 4 rule 3 provides:

A notice of motion under rule 3(1) must state-

(a) concisely the nature of the claim; and
(b) the relief or remedy required.

[5] Applicant came to court alleging that his visitation rights were seized for one month. The applicant was found with contraband in his possession and was found guilty by the Corrections Tribunal and a punishment one month loss of remission and denial of visitation from 8^th November 2018 to 9^th December 2018 have been imposed. However, during that period on 17^th November 2018 the applicant has had a visitor and he had been allowed to meet the applicant. This fact has not been denied by the applicant.

[5] Section 13(1)(k) of the Constitution provides:

Every person who is arrested or detained has the right—

to communicate with, and be visited by,—

(i) his or her spouse, partner or next-of-kin; and
(ii) a religious counsellor or a social worker

[6] The applicant is a convicted prisoner and the provisions of section 13(1)(k) of the Constitution are applicable to persons who are arrested and detained. Therefore, applicant’s rights as a prisoner are not governed by the provisions of section 13(1)(k) of the Constitution and his application is liable to be struck out on that ground alone.

[7] It is also submitted that the applicant’s application for constitutional redress has been filed out of time prescribed by Rule 3(2) of the High Court (Constitutional Redress) Rules 2015. The application has been handed over to the High Court of Lautoka on 10^th May 2019 at 10.00AM.

[8] The applicant in his affidavit in support does not say exactly when the alleged violation occurred. However, from the affidavit it appears that the alleged violation of his constitutional right occurred between 8^th November 2018 and 8^th December 2018. Therefore, the applicant should have filed this application for constitutional redress on or before 8^th February 2019 and it is clearly out of time by about three months.

[9] The reason offered by the applicant for late in applying is that he was lately told that it is a right and not a privilege. Not knowing his rights is not an exceptional circumstance for the court to hear this application out of time prescribed by the High Court (Constitutional Redress) Rules 2015.

[10] The next question for determination is whether the applicant has failed to comply with Order 3 and 4 of the High Court (Constitutional Redress) Rules 2015.

[11] The applicant has in fact filed a notice of motion but he has not sought a remedy or relief. Interpretation of a particular rule or section of a statute is not itself a remedy or relief. It is the duty of the court to interpret a particular section or rule of statutes in granting or refusing a relief prayed for by a claimant.

[12] For the above reasons the application of the applicant for constitutional redress if defective and must be struck out.

ORDER

1. The application constitutional redress is struck out.
2. There will be no order for costs.
   

Lyone Seneviratne

JUDGE

24^th March 2020