Kumar v Attorney General of Fiji [2023] FJHC 462; HBM32.2022 (17 July 2023)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

HBM 32 of 2022

BETWEEN:

KAMLESH KUMAR.
APPLICANT

A N D:

THE ATTORNEY GENERAL OF FIJI

RESPONDENT

Appearances: Mr. Kumar K. (In-Person) for the Applicant
Mr. Kant S. for the Respondent
Date of Hearing: 10 July 2023
Date of Ruling: 17 July 2023

R U L I N G

INTRODUCTION

1. Mr. Kamlesh Kumar is a serving inmate. On 04 June 2004, he was found guilty and sentenced to life imprisonment for the offence of murder. This year marks the 19^th year of his incarceration.
   
2. On 22 August 2022, Kumar filed a Notice of Motion seeking various declaratory relief. The application is filed pursuant to section 44 of the 2013 Constitution of the Republic of Fiji. It is supported by an affidavit which Kumar swore on 15 August 2022.
   
3. On 06 January 2022, the Office of the Attorney-General filed a Summons to Strike Out. This Summons is filed pursuant to section 44 of the Constitution and Order 18 Rule 18(1) (a),(b) and (d) of the High Court Rules 1988.
   

KUMAR’S GRIEVANCE

4. Kumar’s grievance is that, as at August 2022, the powers responsible have not appointed or constituted a Parole Board or a Mercy Commission. Amongst the declaratory Orders he seeks, is the one pleaded at paragraph (f) of his Statement which I reproduce in full below:
   

A DECLARATION THAT in the absence of the Parole Board and Mercy Commission Board, the Applicant’s fundamental right to be at liberty is violated after serving 18 years of his retribution (sic) with good behavior.

5. Kumar’s entire case theory appears to be premised on the assertion that he has a right to liberty and that the said right is being infringed
   

STATE’S ARGUMENT TO SUPPORT STRIKING OUT

6. The State’s submissions in support of the striking out application might be summarized as follows:
   
   • (a) early this year, 2023, the Mercy Commission was revived and reconstituted.
     
   • (b) it is therefore open to Kumar to apply to the Commission under section 119 of the Constitution to seek a recommendation to the President that he (Kumar) be pardoned.
     
   • (c) assuming there has been a breach of Kumar’s fundamental right to liberty, there is an adequate alternative remedy available to Kumar. That alternative remedy is to apply to the Mercy Commission.
     
   • (d) so, while section 44(1) of the Constitution gives the right to apply for redress to a person who alleges that a Chapter 2 right of his has been contravened, section 44(4) gives the Court the discretion not to grant relief if the court should consider that there is an adequate alternative remedy available (see also Harrikissoon v Attorney General (1979) 3 WLR 62; Abhay Kumar Singh v Director of Public Prosecution & Anor).
     
   • (e) in that regard, the Court should exercise its discretion under section 44(1) of the Constitution and decline Kumar the declaratory relief he seeks.
     
   • (f) another alternative remedy available to Kumar is to apply to the High Court under the High Court Rules 1988 for a declaration as to whether or not the Minister has indeed breached section 49 of the Corrections Services Act 2006.
     
   • (g) Kumar in fact has applied to the Mercy Commission. His application is pending there and is yet to be considered by the Commission.
     
   • (h) in any event, the issues raised by Kumar are not susceptible to Constitutional Redress. Kumar’s application therefore discloses no reasonable cause of action.
     
   • (i) also, because Kumar’s application lacks merit, its only purpose is to annoy the Respondent and is therefore scandalous, frivolous and vexatious and is an abuse of process.
     

KUMAR’S ARGUMENT

7. Kumar’s argument might be summarized as follows:
   
   • (a) section 49(1) of the Fiji Corrections Service Act 2006 establishes the Parole Board.
     
   • (b) the Board’s function is to make recommendations to the Minister responsible on the release on license of any prisoner serving a sentence including a life sentence (section 49(4) of the Act).
     
   • (c) however, at present, there is no such Board in existence. This is because the Minister responsible has failed in his duty to set one up.
     
   • (d) the Minister’s failure as such, means that there is no Board in existence to carry out the function which the Fiji Corrections Service Act 2006 sets out for it (Board).
     
   • (e) the non-existence of a Board as such, affects Kumar mentally on a daily basis. While he is serving a life sentence, he has also completed a total of nineteen years altogether with a relatively clean prison disciplinary record.
     
   • (f) furthermore, the non-existence of the Parole Board as such, affects Kumar’s right to freedom (section 11(1) of the Constitution)
     

COMMENTS

8. Section 44(1) of the Constitution provides as follows:
   

44.—(1) If a person considers that any of the provisions of this Chapter has been or is likely to be contravened in relation to him or her (or, in the case of a person who is detained, if another person considers that there has been, or is likely to be, a contravention in relation to the detained person), then that person (or the other person) may apply to the High Court for redress.

9. Section 44 appears under Chapter 2 of the Constitution which is the Bill of Rights Chapter. The first thing which Kumar must establish in this matter is that a right of his under the Bill of Rights has been or is likely to be contravened.
   
10. Section 11(1) of the Constitution which Kumar relies on provides as follows:
    

11.—(1) Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment.

11. At the hearing of this case, Kumar argued at length that because the Parole Board has not been constituted, his right to liberty has been infringed.
    
12. There are two basic fundamental flaws in Kumar’s argument.
    
13. The first is that a convicted murderer sentenced to life imprisonment has a limited right to liberty. While a prisoner serving a custodial sentence may have certain other rights which are protected under the Constitution and which are enforceable under the Constitutional Redress Rules, he or she does not possess all the rights which the general public has.
    
14. The right to personal liberty must naturally be restricted by the very fact of the custodial sentence imposed. So, while a convicted prisoner will have some right of liberty within the four walls of prison subject to the proportionate control of the relevant authorities, he does not have a right to be released from prison until he has served his sentence fully.
    
15. The second, and flowing from the first, is that while a serving prisoner may be released from prison by the Mercy Commission or the Parole Board before the said prisoner completes his sentence of incarceration, the granting of a pardon by the President under section 119 of the Constitution, or, the granting of parole under the Fiji Corrections Services Act, is not something that Kumar is entitled to as of right. Rather, these are granted as a privilege either on the prerogative of the President on the advice of the Mercy Commission, or at the discretion of the Minister responsible on the advice of the Parole Board.
    
16. At best, Kumar may have an arguable case that he, either personally or as a member of a group (of prisoners), has a legitimate expectation to have his application for parole heard and considered by a Parole Board. Flowing from that, it is arguable that Kumar has a legitimate expectation that a Parole Board be set up as provided in section 49(1) of the Fiji Corrections Service Act 2006.
    
17. To be entitled to that argument, it is not necessary for Kumar to establish that a right of his under Chapter 2 of the Constitution has been breached. However, the forum for such an argument is the Judicial Review Court which means that he has to come by way of an application under Order 53 High Court Rules.
    
18. Having said that, even if Kumar were to succeed in a Judicial Review application as such, of which chances of success I offer no comment, all he may achieve is to persuade the authorities to set up a Parole Board to hear his parole application.
    
19. As the Fiji Court of Appeal has said in Pacific Transport Ltd v Khan [1997] FJCA 3; Abu0021u.1996s (12 February 1997) the application of the doctrine of legitimate expectation in Fiji is limited only to procedural legitimate expectation and not substantive legitimate expectation.
    
20. In other words, while Kumar may or may not have a legitimate expectation that a Parole Board be set up to hear his application or parole, Kumar cannot have a legitimate expectation that the Parole Board will grant him parole. But then again, at the end of the day, a “fair go” is all that Kumar and his fellow prisoners really desire, that is, that a Parole Board be set up and convened to hear and determine their application for parole.

CONCLUSION

21. I am of the view that Kumar has failed to establish that a Chapter 2 right of his has been infringed or is likely to be infringed. Accordingly, he lacks the locus to file an application for Constitutional Redress.
    
22. In any event, even if he had succeeded in establishing that a Chapter right of his has been violated by the failure to set up a Parole Board, I am of the view that the fact that he has a pending application before the Mercy Commission establishes that he has an alternative remedy which he is already pursuing.

ORDER

23. Constitutional Redress application struck out. No costs.
    

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Anare Tuilevuka

JUDGE

Lautoka

17 July 2023