State v Ram [2001] FJLawRp 75; [2001] 2 FLR 300 (24 August 2001)

STATE v JAI RAM, EMOSI BATI, AVINESH VIKASH MANI

High Court Criminal Jurisdiction
24 August, 2001 HAC 002/00L, HAC 013/00L and HAC003/00L

Bail - interlocutory applications – murder charge - conditions of remand block – changes since Sailasa Naba & Ors v State – purpose of visit to prison complex – whether remand blocks conform with UN Standard Minimum rules – lack of resources to comply with UN Minimum Standards

Sailasa Naba & Ors v State (2001) HAC 0012/00L 4 July 2001 appl.

Constitution – fundamental rights and minimum requirements sought by court is not high idealistic and utopian – whether balance between Constitution provisions and rights of the state, victims and witnesses is subject to availability of resources - right to a trial within a reasonable time – whether exceptional circumstances caused by delay a ground for granting bail - Constitution ss21(3) & (4), 25(1), 38(1)

Practice and procedure – affidavit sworn before agent who has conduct of proceedings – independence of commissioner – improper indorsements - lack of compliance with High Court Rules - Court grants leave – High Court Rules O.41 rr.8, 9(2)
State v His Excellency the President of the Fiji Islands & 4 Ors, ex-parte I. Iqbal A Khan [2000] 1 FLR 241 and In re Kim Industries Ltd. (No. 1) [2000] 1 FLRappl.

The three Applicants, all charged with offence of murder, applied for bail. The First and Third Applicants had been on remand for 2 years prior to application. The First applicant was released on bail, and the Court gives its reasons in this Ruling. The Second Applicant gave a hand written application and relied on delays in his trial, the presumption of innocence and the cruel, inhumane and degrading conditions of remand. His condition had not changed since the Court's Ruling in Sailasa Naba & Ors v State (HAC 0012/00L). The Third Applicant filed two affidavits, in similar vein to the First Applicant, detailing the conditions of his remand, and the delays in the hearing of his case. The State opposed the application on the grounds of resource constraints, the need to balance the rights of the State, victims and witnesses. The Applicants objected to the admissibility of affidavit evidence on the grounds that the Commissioner of Prisons' affidavit was sworn before his own agent, counsel who had conduct of the case, and was not properly indorsed. The Court granted leave, considering the urgency of the applications, but pointed out that it may in future refuse leave. The Court viewed the prison complex to appreciate the evidence led in Court, which were contradictory, and where it received no report from occupational health and safety inspectors, despite request. The Court noted that changes to accommodation of prisoners were made since the Court's Ruling in Sailasa Naba and complied with the UN Standard Minimum rules. The Court found a problem not of lack of resources, but efficient use and prioritisation of the requirements of those presumed innocent and awaiting trial against those who are convicted and sentenced. The Court found that adequate resources are available to provide minimum requirements, such as the re-use of block 4 at Natabua Prison as a remand block. It found the State's submissions on balancing the constitution with rights of the State, victims and witnesses made no reference to the binding nature of the UN Standard Minimum Rules, and whether they are subject to availability of resources. The Court upheld Sailasa Naba, in absence of the State's submissions that the Court's analysis of sections 25(1) and 28(1)(a) 1997 Constitution were incorrect or did not follow the spirit of the Constitution. The Court considered the enforcement provisions of the Constitution and found there was no adequate alternative remedy, except to consider bail, where the Applicants have been remanded for more than 2 years, and were unlikely to be assigned a trial date until a year hence. The Court granted bail on strict conditions.

Held–(1) The Standard Minimum Rules apply to Fiji's prisons. In considering minimum standards and requirements the Courts are not calling for the provision of any luxuries, but the need to provide the basic needs, and facilities which are clean and hygienic. Compliance with UN Minimum Standards cannot be met by an argument of resources constraints. It has been shown that when required by the law to comply, authorities can meet minimum requirements. Any detention of persons who are presumed to be innocent is in effect a punishment, especially in the conditions pertaining in remand block 1. But where no adequate alternative remedy is available to the Court, given the response of the authorities concerned, the only alternative is to consider bail pending trial.

(2) Provisions in Constitution ss25(1), 28(1) and 29(3) are part of first generation rights and cannot be read down by bland assertions of resource constraints. Minimum standards of detention have to be adhered to, even in a state of emergency.

(3) Leave is granted to the State to admit defective affidavits but in future the Court may refuse to admit affidavits not complying with the Rules with serious consequences for the parties involved.

Obiter dicta-(1) Charged persons may come from low income, underprivileged and marginal groups of society but this does not mean they should be treated with any less dignity by the State.

(2) Resource constraints may be a valid argument in the enforcement of second generation rights emanating from the UN International Covenant on Economic, Social and Cultural Rights.

(3) The High Court's pronouncements on first generation rights of the Bill of Rights provisions of the 1997 Constitution are critical to their enforcement and enlivenment.

(4) Provision of another Judge, and an additional court room can considerably enhance case disposal, rather than paid advertisements attacking the integrity of the Courts. Such paid advertisements do not lend credibility to the State's claims of resource constraints.

Bail granted on conditions.

[Note: Jai Ram was sentenced to 9 years 6 months on count 1 and acquitted on count 2; Avinesh Mani was convicted on 18 July 2002 and sentenced to life imprisonment on count 1 and 11 years for count 2; Emosi Bati was sentenced to 23 months imprisonment on 15 August 2000.]

Other cases referred to in Ruling
foll Baljeet Singh & Ors [2001] HAC 002/00L Ruling 17 July 2001
appl Bourke v Davis [1889] UKLawRpCh 180; (1890) 44 Ch. D 110
foll Karamat v The Queen [1956] AC 256
dist Plenty v Dillion (1991) 171 CLR 635
cons Sailasa Naba & Ors v State (2001) HAC 0012/00L 4 July 2001
foll State v Baljeet Singh & Ors [2001] HAC 02/00L, HBM 005/01L 17 July 2001.
cons State v Felix Keith Vusonitokalau HAC 0005/96S
cons State v Mool Chand Lal (1999) HAC 3/99B 22 November 1999
cons State v Peniasi Kata [2000] HAC 0009/94 10 May 2000
ref Taito Rarasea v State [2000] 2 FLR 27
foll Tameshwar and Anor v The Queen [1957] AC 476
cons Timoci Naisake & Saula Matavucu v State [2001] HAM 001/00S Ruling 31 January 2001

Ganga P Shankar for the First Applicant
Jainesh Sharma for the Second Applicant
Ganga P Shankar with Ronald Gordon for the Third Applicant
Peter Ridgeway and Josaia Waqaivolavola for the State

24 August, 2001

RULING

Prakash, J
Introduction
The three Applicants/accused have applied for bail. They are all charged for the offence of murder.

In support of his application the 1st applicant, Jai Ram s/o Suruj Din, filed two affidavits - the first on 11 June 2001 and a supplementary affidavit on 27 June 2001. The State has responded with three (3) affidavits in reply-

(a) by Davendra Prasad, State Counsel filed on 30 July 2001.

(b) by Manasa Rakabikabi, Acting Officer-in-Charge of the Natabua Prison, filed on 2 August 2001

(c) Aisea Taoka, Commissioner of Prisons, filed on 2 August 2001.

Jai Ram was released on bail after the hearing on 3/08/01 in view of the case of his co-accuseds Baljeet Singh & Others (Cr. Action HAC 002 of 2000L, Ruling, delivered on 17/07/01) who were released on bail on 17 July 2001. Full reasons were to be given later. These are incorporated in this ruling.

The 2nd Applicant Emosi Bati applied for bail in person. In his hand written application he complained about various issues including the delays in his trial, the presumption of innocence and the cruel, inhumane and degrading conditions of remand. In response the state filed on 2/8/01 an Affidavit by Aisea Taoka, Commissioner of Prisons, which is in identical terms to the affidavit filed in response to the 1st Applicant Jai Ram s/o Suruj Din. Fortunately for the 2nd Applicant, Emosi Bati, legal aid was approved and he was represented by Counsel from the Legal Aid Commission for the hearing of the bail application. The Legal Aid counsel greatly assisted the Court in dealing with the relevant legal principles.

The 3rd Applicant Avinesh Vikash Mani f/n Subarmani filed two affidavits - the first on 11 June 2001, and a supplementary affidavit on 27 June 2001. In response the State filed two affidavits - one by Manasa Rakabikabi, Officer in charge of Natabua Prison and Aisea Taoka, Commissioner of Prisons. Both were filed on 2 August 2001, and are identical to the affidavits filed in response to the first two applicants. The affidavits by the first and third applicants complain of identical matters. They are essentially focused on the conditions of their remand, and the delays in the hearing of their cases.

Defense Counsels opposed the late filing of the Affidavits by the State. However, the Court granted leave with the proviso that if need be the Applicants could give direct evidence regarding any new matters raised in the affidavits, especially if relevant to their conditions in remand. However, there was a more substantive objection to the admission of the Affidavit of the Commissioner of Prisons. This was to do with the non compliance with Order 41 rule 8 of the High Court Rules. The affidavit of the Commissioner is sworn before Mr. Kevueli Tunidau, State Counsel in the Suva office of the Director of Public Prosecutions. Strictly this offends the spirit of 041 r8 since Mr. Tunidau is an agent or partner of the State Counsel who has conduct of these proceedings in the High Court in Lautoka. From the records Mr. Tunidau also had conduct of this file initially. He may well conduct the trial depending on the staffing situation of the DPP's office in future. I do not need to consider in detail the issues involved. These have been succinctly dealt by my brother Gates J in the case of the State v His Excellency the President of the Fiji Islands & 4 others, ex-parte I. Iqbal A Khan (Judicial Review HBJ 007/2000L, unreported Ruling on Transfer of Proceedings, dated 12 October 2000). The independence of the Commissioner from the deponent was emphasised in the case of Bourke v Davis [1889] UKLawRpCh 180; (1890) 44 Ch. D 110 at 126. In this case Kay J had stated that "the Court requires the security of an independent commissioner".. As Gates J stated: "This particular observation appears to have been directed at the importance of a deponent understanding what was in the affidavit and of accepting the statements therein as his or her true evidence, independently from the solicitor who assisted in drafting the affidavit."

The Court is also concerned that proper indorsements have not been made on the affidavits by all Counsels who have filed affidavits in the Applications before the Court. These combined with the late filings show a lack of appreciation of the directions made by the Courts regarding the need to follow the requisite rules (see In the matter of Kim Industries Ltd (unreported) Ltk High Court Winding up No HBF 0036/99L, 7 July 2000). In considering the urgency of the applications, dealing as they are with the liberty of citizens, the Court grants the necessary leave as per O41 r9(2) for the use of the affidavits. In future the Court may refuse to admit affidavits not complying with the Rules with serious consequences for the parties involved.

The Situation of Remand prisoners at Lautoka Prison
It is quite clear that the affidavits of the Commissioner of Prisons and the Officer in Charge of the Natabua Prison deal with the situation of the Remand block at Natabua Prison since this Court's ruling in the case Sailasa Naba & Others v State (Cr Action HAC 0012 of 2000L). The Commissioner says so in his affidavit. The affidavits describe the changes affecting persons in remand and proposals for change. As regards two of the applicants it was clear that their situations had changed considerably in certain aspects. The first Applicant Jai Ram and the third Applicant Avinesh Vikash Mani were moved from Block 1 to Block 4 from the second week of July 2001. In the case of Sailasa Naba & Others this Court had recommended the closure of Block 1, the Remand block. However, the second applicant Emosi Bati was still housed in Block 1, though he was alone in a cell.

The Court again visited the Natabua Prison complex on 7/08/01. Lest the Court is accused again of being a one man Commission of Inquiry the Court needs to clarify the law in terms of a visit by the court to view the scene. This is essentially for the benefit of the caretaker and interim Attorney-General and Minister for Justice who in a paid advertisement made a scathing attack on the integrity of the High Court at Lautoka in carrying out its judicial functions. The advertisement states: "the approach on the part of the Court which saw Acting Puisne Judge Prakash visiting the Natabua Prison Complex is a novel development. In so doing the Lautoka High Court on the initiative of the judge in question, had become a one man Commission of Inquiry into the status of our prisons without any approved terms of reference " (The Daily Post 7 July 2001). In Sailasa Naba & Others the Court was requested by the parties to visit the Remand block in view of the affidavit evidence put before the Court. In this case the parties again urged the Court to visit the Prison complex to view the changes undertaken by the authorities. In criminal proceedings the purpose of a visit to the scene (Locus in Quo) is to better appreciate the evidence led in Court. The principles and procedure are fully explained by the House of Lords in Karamat v The Queen [1956] AC 256 and Tameshwar and Another v The Queen [1957] AC. 476 (See also Archbold: Criminal Pleading. Evidence and Practice (1999 ed) paras 4-83 & 4-84). In this case we are dealing with interlocutory applications for bail. Serious breaches of fundamental rights have been alleged. Affidavits were filed by the Applicants regarding the conditions in the remand block. The Commissioner of Prisons and the Officer-in-charge also filed affidavits admitting certain matters and contradicting certain allegations. There was no way the Court could understand and assess the evidence contained in the affidavits except through a visit to see the situation first hand. The Court did not enquire into anything outside the ambit of the applications before it. It did not study, for example, the situation of the convicted prisoners except to enquire from the Officer-in-charge their general conditions as opposed to those in remand.

The Occupational Health and Safety Inspectors were also requested to assist. No report was forthcoming. We were informed by the OIC during our visit on 7/08/01 that OHS inspectors visited the complex since the decision in Sailasa Naba & Others. However, no reports have been tendered in Court by the State. In such a situation the Court has to rely on its own view given the evidence in the affidavit materials. This visit, like that during Sailasa Naba & Others, was undertaken with the approval and blessings of the Officer-in-Charge of the Natabua Prison complex.

The changes in the situation of the 10 detainees in Block 4 is quite dramatic. Block 4 was originally built in 1972 to accommodate persons in remand. Each cell has a proper bed and mattress, a toilet and basin. Proper beddings and blankets were evident. Each cell was properly ventilated with adequate natural light for day time reading. Tube lights were installed that would be adequate for night time reading. It was quite clear that even in 1972 the State was conscious of the minimum requirements for keeping detainees awaiting trial in proper conditions. The physical features of each cell meets the UN Standard Minimum Rules, discussed fully in the ruling in Sailasa Naba & Others. The Court concurs with the Officer-in-Charge's affidavit that the above facilities are quite healthy and safe for human habitation. This block is located in a properly secured compound adjacent to the main prison complex. It could provide for a separate regime for the treatment of remand prisoners awaiting trial. However, this block 4 was not used for Remand prisoners for a while. We were informed that since a long period, when the number of detainees awaiting trial increased beyond 10, Block 1 within the Prison complex was used as the Remand block. Block 4 was used whenever necessary for certain class of convicted prisoners. It was only after the High Court decision in Sailasa Naba & Others that the authorities converted the facility back to a remand block.

It is quite clear that the problem is not purely a lack of resources but efficient use and prioritisation of the requirements of those presumed innocent and awaiting trial against those who are convicted and sentenced. The Court is quite sensitive to the Commissioner of Prisons efforts to get resources to engender a better regime for prisoners. However, what is planned to be done, subject to resource availability, is no comfort to those enduring breaches of fundamental rights in detention and awaiting trial. We need to be aware that in relation to the applications before this Court we are dealing with persons who are presumed to be innocent.

It is of note that neither the Commissioner of Prisons nor the Officer-in-charge address the issue of the UN Standard Minimum Rules referred to in the ruling in Sailasa Naba & Others. The Court is aware that assistance is available from the relevant UN agencies for states to comply with the Standard Minimum Rules. At its 21st plenary meeting on 25 May 1984 the UN Economic and Social Council had adopted various procedures for the effective implementation of the Standard Minimum Rules for the Treatment of Prisoners. As part of its technical co-operation and development programmes the UN shall:

(a) Aid governments, at their request, in setting up and strengthening comprehensive and humane correctional systems;

(b) Make available to Governments requesting them the services of experts and regional and interregional advisers on crime prevention and criminal justice;

(c) Promote national and regional seminars and other meetings at the professional and non-professional levels to further the dissemination of the Standard Minimum Rules and the present implementing procedures;

(d) Strengthen substantive support to regional research and training institutes in crime prevention and criminal justice that are associated with the United Nations.

According to the commentary on the above the UN document indicates that there is an expert referral system in order to implement the Rules "according to their spirit card with a view to the socio-economic structure of the countries requesting such assistant" There is no indication in the affidavits on behalf of the State and the submissions by the State that Fiji is aware and has utilised assistance of the relevant UN agencies.

The Court is sensitive to the Commissioner of Prisons attempts to rectify the situation since the ruling in Sailasa Naba & Others, Like the Courts and other institutions he also has to deal with resource constraints. However, some of the comments in the Commissioner's affidavit are unfortunate. In paras 16 and 17 he comments on the toilet facilities and use of buckets for the evenings. He states: "that the use of the bucket has been a practice of long standing". This does not justify its use in this modem day and age. There is an age old practice by many men of beating their wives in this country. This does not justify the practice. The law cannot condone that which is not in keeping with human dignity. In comments that have come to this Court and queries from lawyers since the ruling in Sailasa Naba it is evident that most people outside the prison system are not aware that a bucket system was still in use. Most have expressed shock that such a system is still being used in Fiji. As regards the Commissioner's assertion that "there has never been any outbreak of disease or infection at this prison or other health problem in any way related to this practice" the Court would need expert medical or public health advise to accept this. How such practice affects human dignity and the rights enshrined in Section 25(1) of the Constitution also need to be considered. It will also be useful to have the view of the Occupational Health & Safety Inspectors on such practice and its effects on both the detainees and the Prison Officers administering the system, and whether it complies with health, safety and welfare at work.

The Commissioner further deposes to his familiarity with the style and conditions of living of the majority of the Fiji's population and the general history and state of social, political and cultural development of the country. The Court may concur with the Commissioner's observation that "...people living in villages (both in urban fringes and rural areas) frequently if not generally share small and often flimsy accommodation, sleep on mats with blanket have a simple diet and few if any luxuries". However, it should be recognised that such persons do not have their freedom of movement curtailed. Despite the flimsy accommodation the ventilation is not restrictive. People have the freedom to move in and out of the houses to have fresh air. Their cultural and recreation activities are not restricted. They do not use buckets for the call to nature. In considering minimum standards and requirements the Courts are not calling for the provision of any luxuries - whatever is meant by these in the Commissioner's view. In line with the UN Standard Minimum Rules the Court sees the need to provide the basic needs, and facilities which are clean and hygienic. We also need to be conscious that this ruling is concerned with the situation of persons who are presumed to be innocent. Any detention is in effect a punishment, especially in the conditions pertaining in Remand block 1.

The Commissioner's observations in para 11 of his Affidavit is rather worrisome. He states "The conditions in the Remand block at Natabua prison are not attractive by any means but it would be an exaggeration to say that they do not bear any resemblance to the conditions of life with which most persons on remand would be familiar through their own life and experience". It is not clear whether the Commissioner is positing a class based system of detention. Those of us involved in the criminal justice system are aware that most persons charged with criminal offences come from the low income, underprivileged and marginal groups of our society. This does not mean that they should be treated with any less dignity by the State. Minimum standards of behaviour is expected towards them. They also have inherent rights to humanity and dignity. They also have the right to equality before the law (Section 38(1) of the Constitution). If the Commissioner's logic is accepted than the rich and powerful could demand detention in prison conditions with which they are familiar in their own life and experiences. The state will than have to provide an income and class based detention system.

The problem of Resources
In its ruling in the case of Sailasa Naba & Others this Court referred to the UN Human Rights Committee's pronouncement that the obligation to treat persons deprived of their liberty with dignity and humanity is a fundamental and universally applicable rule not dependent on the material resources available to the state party. Referring to the case of Mukon v Cameroon this Court quoted from the Human Right Committee: "...Committee observes that certain minimum standards regarding the conditions of detention must be observed regardless of a State party's level of development. These include, in accordance with rules 10, 12, 17, 19 and 20 of the Standard Minimum Rules for the Treatment of Prisoners ... minimum floor space and cubic content of air for each prisoner, adequate sanitary facilities, clothing which shall be in no manner degrading or humiliating provision of separate bed and provision of food of nutritional value adequate for health and strength. It should be noted that these are minimum requirements which the Committee considers should always be observed even if economic or budgetary considerations may make compliance with these obligations difficult" (emphasis added). It should be recognised that Cameroon's per capita gross domestic product (GDP) is lower than Fiji's. If they are required to comply then Fiji cannot claim resource constraints as a valid argument.

In the case of State v Peniasi Kata (Cr Action HAC 0009 of 1994, unreported Ruling delivered on 10/05/2000) Townsley J also considered the issue of a shortage of resources in relation to the issue of delay which is also relevant in these application. As Townsley J. state: "Neither the workload of the Court nor a shortage of resources is a sufficient justification for delay in a trial.... The fact that the authorities have not made resources available to try his accused is not his problem"(p18).

In terms of fundamental rights or standard minimum requirements the Court is not seeking high idealistic and utopian solutions. There is no doubt in this Court's view that adequate resources are available to provide minimum requirements. A substantial part of the minimum requirements are being met. As the case of re-using block 4 at Natabua Prison as a Remand block indicates when required by the law to comply authorities can meet minimum requirements.

In his submissions the learned Deputy DPP stated that human rights conventions are goals that countries aspire towards. He urged the Court to interpret the relevant fundamental rights provisions contextually especially in relation to the issue of delay. He further submitted that section 21(4) of the Constitution required the Courts to interpret the provisions contextually balancing individual rights with collective rights of the public. He alluded to the history of this country since May 2000, He referred to the state of emergency and paralysis and the effects on government resources, the lack of judicial resources and the level of poverty in the country. All these have affected everyone in the country. The rights of the state, victims and witnesses need to be balanced in considering the issue of delay. However, no submissions were made by the learned Deputy DPP in relation to the conditions of the applicants in remand and alleged breaches of their rights to be treated with humanity and inherent dignity. In the prognosis provided by the State it was not clear how one was to balance the requirements of Section 25(1) of the Constitution with the problems the country has been facing since May 2000. It has to be recognised that all citizens have been affected by the events of May 2000 and its consequences. A delay in trial affects all persons involved: the accused, victims and witnesses. It is perhaps ironic to note that some of those responsible for the state of affairs the state alludes to are charged with crimes as serious as murder but held in remand in Nukulau awaiting trial. From most accounts their conditions of detention are far superior to those in Block 1 at Natabua Prison. No reference was made by the learned Deputy DPP to the UN Standard Minimum Rules discussed extensively in Sailasa Naba's case. It is not clear whether the State acknowledges the Rules as binding treaty standards (see for example, the observations of Madraiwiwi J in Taito Rarasea v State, quoted in Sailasa Naba & Others (pp 14-15). In the absence of any contrary indication the Court accepts that the Standard Minimum Rules apply to our prisons.

In regards to the issue of resources the Court notes that the Bill of Rights chapter of the Constitution does not state that any rights are subject to the availability of resources. Section 21, which was referred to by the learned Deputy DPP, states in subsection (2).

"The rights and freedoms set out in this chapter apply according to their tenor and are subject only to the limitation under laws of general application permitted by this Chapter and to such derogations as are authorised under Chapter 14."

Section 21(3) further states:-

"Laws made, and administrative and judicial actions taken after the commencement of this Constitution are subject to the provisions of this Chapter."

It is clear that no derogations are allowed even on any lack of resources ground. Even during a Chapter 14 derogation, that is, during a State of emergency the minimum standards of detention will need to be adhered to. Section 187(3) provides that certain rights in the Bill of Rights may be derogated (section 23, 24, 30, 31, 32, 33, 34 or 37) under limited conditions. However, Section 25 (freedom from cruel or degrading treatment), Section 28 (presumption of innocence), Section 29 (trial within a reasonable time) are non-derogable. During an emergency no law can be made "that is inconsistent with the obligations of the State under an international convention or covenant" and "is invalid to the extent of the inconsistency". As such even during an emergency the State will have to abide by the UN Standard Minimum Rules when detaining persons. In this Court's view the resource constraint argument has no substantive basis in law, especially where fundamental rights are concerned.

The Court is further fortified in its analysis when certain provisions of the South African constitution, which provided the basis for many of the Bill of Rights provisions in our Constitution, are considered. In relation to housing, for example. Section 26(1) of the South African constitution states:

"Everyone has the right to have access to adequate housing".

In terms of the responsibility of the State, Section 26(2) states: "The state must take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of this right" (emphasis added).

In relation to Health care, food, water and social security the South African constitution further states in Section 27:

(1) "Everyone has the right to have access to -

(a) health care services, including reproductive health care:

(b) sufficient food and water; and

(c) ...

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights"(emphasis added).

The issue of the availability of resources may be a valid consideration in the enforcement of social, economic and cultural rights which some consider "second generation rights." These rights, generally emanating from the UN International Covenant on Economic, Social and Cultural rights, are placed in some constitutions under Directive Principles or Compacts. They are deemed to be non-justiciable. However, the rights we are concerned with under Sections 25(1), 28(1) and 29(3) of our Constitution - the so called "first generation rights" are part of the Bill of Rights provisions and as such are entrenched rights. They cannot be read down by bland assertions of resource constraints. If our constitution was to limit any of the Bill of Rights, including the rights of detained persons, subject to the availability of resources it should have said so.

The Issue of Delay
In the case of Sailasa Naba & Others this Court had extensively dealt with the constitutional right to a trial within a reasonable time; In that ruling the Court, following Peniasi Kata, considered the issue of a constraint of resources. It further considered the constitutional rights to the presumption of innocence, and freedom from cruel or degrading treatment.

In the applications before this Court much of the State submissions were centered on the issue of delay. The State referred to the figures provided in Sailasa Naba & Others in relation to the outcome of murder cases. The learned Deputy DPP submitted that they were not tested. It is not clear what is meant by this. The figures on the outcome of murder cases at the High Court at Lautoka from 1995 to 2000, can be easily verified by the office of the DPP since it has conduct of all murder charges in the High Court. The other statistics from the USP academic study can also be checked by the DPP who has conduct of all homicide cases in the High Court. In any event the figures were discussed in the context of the fundamental right to be presumed innocent (s28(l)(a) of the Constitution. What is suggested is that the State and the Courts will need to more closely consider the nature of the evidence disclosed in the depositions. As was stated in Sailasa Naba & Others: "The presumption of innocence which is a constitutional right, will need to be given the weight it deserves" (p8). The case of Timoci Naisake and Saula Matavucu v State (Cr. Case HAM 0010D.2000S) was also discussed. This was a case based on the 1997 Constitution where bail was granted after 12 months detention. The State made no specific submissions to distinguish the situation of the present Applicants from that of the cases of Timoci Naisake & Saula Matavucu and Sailasa Naba & Others.

The Court is sensitive to the issue that no arithmetical formula can be used in assessing delay. It is quite evident that the submissions by the state has not appreciated the extensive and evolving human rights jurisprudence that the Courts have to grapple with when faced with allegations of breaches of fundamental rights. It should be recognised that the Constitution is the supreme law. The Courts are bound by it as much as the Legislature and the Executive. In relation to the issue of bail for a charge of murder, for example, this Court cannot willy nilly grant bail given the long line of authorities restricting bail for murder. The exceptional circumstances in which bail has been granted in Fiji has centred on the issue of delay. Upon being confronted with the further fundamental rights to the presumption of innocence (section 28(1) (a) of the Constitution) and freedom from cruel, inhumane or degrading treatment (Section 25(1), the Courts have to undertake a delicate balancing act. In doing so they need to follow the provisions of the Constitution itself. In particular Sections 3, 21, 43 which were articulated by this Court in Sailasa Naba's case. The State has not submitted that the Court's analysis of the relevant provisions was not correct or did not follow the spirit of the Constitution.

The Court is aware that the Bill of Rights provisions in our Constitution challenge all of us to deal with a new regime. As the Hon. Chief Justice stated in November 1999 in reference to police investigations "... it is clear that the Police Department and in particular its criminal investigation branch would need to take earnest steps to bring their officers up to date, if they had not already done so, about the proper procedure and the provisions under the new Bill of Rights for investigating persons under arrest or detention. This is a crucial regime in the modem system of criminal investigation and justice" (State v Mool Chand Lal Cr Case No 3 of 1999, Labasa, p20 of the ruling on a Trial within a trial). These salutary remarks of the Hon. Chief Justice apply to all of us involved in the criminal justice system — whether as Police Officers, State Counsels, Prison Officers, Judges and Magistrates. The public also need to be educated and informed of their fundamental rights. The High Court's pronouncements on these rights are critical to their enforcement and enlivenment.

Backlog of Cases at Lautoka High Court
This Court presided over its third Criminal session for 2001 on 6 August 2001. It is clear from the cases on the list that the rate of disposal of murder cases has reached crisis proportions. Given the case load of the High Court at Lautoka (including murder, manslaughter and other serious criminal cases, appeals, interlocutory applications etc) one Criminal Court Judge cannot make any significant impact on the rate of disposal of the criminal back log. The oldest murder case (alleged offence committed January 1999) will hopefully be completed in September 2001.

The Commissioner of Prisons is correct in asserting in his affidavit "that the speed with which the Courts have been able to deal with such cases have contributed in a significant way to the continuation of high numbers of persons in custody on remand". It is not as the caretaker Attorney-General & Minister for Justice blissfully asserts "rests squarely on the shoulders of the 2 judges manning the Lautoka High Court". The problems at the High Court at Lautoka began long before the current two judges assumed office. In Peniasi Kata's case the delays in the disposal of cases at the Lautoka High Court were described as systemic. This was in May 2000. The judges prior to May 2000 and Counsels involved, including State Counsels, had expressed concerns at the delays in the High Court at Lautoka. Delays were becoming endemic in both civil and criminal cases prior to the appointment of the current two judges. Problems at the Lautoka High Court were discussed at the Fiji Law Society Annual General Meeting of 1997. I was appointed to be the 3rd Judge at Lautoka. However, since my appointment on 16 June 2000 there has been only 2 Judges manning the High Court at Lautoka. The situation was not helped by the closure of the two Courts from 14th March 2001 to 3rd August 2001 by the Occupational Health & Safety Inspectors. The Courts were closed due to the problems with the air-conditioning in the Courts and leakages in the roof. These problems were of long standing, known to the authorities for more than 2 years and prior to the current judges assuming office. Nothing was done regarding the physical facilities nor the judicial resources required to efficiently dispose of the cases at the Lautoka High Court. During his submissions the learned Deputy DPP assured us that an additional judicial appointment is to be made to the High Court at Lautoka soon. However, despite assurances no tangible signs are evident that a third Courtroom is being prepared for such an eventuality. If the interim Attorney General and Minister for Justice devoted his energies to providing tangible support in getting resources for the High Court at Lautoka, rather than putting paid advertisements attacking the integrity of the Courts, case disposal could be considerably enhanced. Such paid advertisements do not lend credibility to the State's claims of resource constraints.

Whatever are the problems of the Court, the Prosecution and the Prisons service these are not the concern of the accused applicants. As Townsley J stated in Peniasi Kata: "The position is that the authorities concerned with the administration of justice in Lautoka High Court have not made the resources available to bring this matter to trial, thus breaching the accused's constitutional right to be brought to trial -within a reasonable time. The fact that the authorities have not made resources available to try this accused is not his problem". The Commissioner of Prisons in his Affidavit complains about operating at unsustainable ratios in terms of staff to inmate ratio. A similar situation is very evident in terms of the case load to judges at the High Court at Lautoka.

The Situation of the Three Applicants
The affidavits of the Commissioner of Prisons and OIC of Natabua Prison only affects the situation of the 1st and 3rd Applicants. The situation of the second applicant, as his Counsel submits, has not changed since the Courts ruling in Sailasa Naba & Others. He has been in remand since 20 September 1999. PCs trial is likely to be held in 2002.

In the case of the first and third applicants they have been in remand and awaiting trial for more than 2 years. Their trials are likely to be held in 2002. This is in breach of their constitutional rights to a trial within a reasonable time. Until their movement to Block 4 their constitutional rights to be treated with human dignity were also breached.

As regards the second applicant he still remains in Block 1 which this court recommended to be closed. His situation has not changed except that he is in a cell alone with the same bucket system, lack of proper bedding, inadequate ventilation etc. This is compounded with the delays in his trial. There is continuing breach of his right to be free from inhumane, degrading and severe treatment. The Court reiterates its recommendation made in Sailasa Naba & Others that the Remand block, that is, Block 1 be closed. Once the Commissioner of Prisons has acquired the resources necessary to make the 18 cell block entirely self-contained and with good ventilation it may be re-opened.

In the absence of any redress to breaches of constitutional rights by the authorities it is incumbent on the Courts to provide redress. Under the enforcement provisions of the Bill of Rights chapter of the Constitution, section 41(3) mandates as follows:

"The High Court has original jurisdiction

(a) to hear and determine applications under subsection (1); and

(b) to determine questions that are referred to it under subsection (5);

and may make such orders and give such directions as it considers appropriate"

Under s41(4): "The High Court may exercise its discretion not to grant relief in relation to an application or referral made to it under this section if it considers that an adequate alternative remedy is available to the person concerned". It is clear that in the applications before the Court no adequate alternative remedy is available given the response of the authorities concerned. The only alternative is to consider bail pending trial. In considering the issue of remedies, even where none are available, the Hon. Chief Justice in Mool Chand Lal (opcit) stated: "I accept that it is the Court's responsibility to provide remedies for breaches of the Bill of Rights provisions where none exist". (p 17).

In countries where there are no entrenched or enacted Bill of Rights provisions the common law courts have been active in providing remedies. As the High Court of Australia has stated:

"If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person's rights, particularly when the invader is a government official". (Plenty v Dillion (1991) 171 CLR 635).

In relation to breach of constitutional rights in Fiji Pain J. clearly articulated the position of the courts: "There has been a clear breach of the accused's constitutional right that should not be condoned or exacerbated by the Court The Court has a duty to remedy the situation immediately. The violation of a citizen's constitutional right for a period of only one day would still be a day too long. The accused is entitled to an immediate release on bail". (State v Felix Keith Vusonitokalau Cr. Case HAC 0005 of 1996S (emphasis added)). This case concerned an application for bail where the accused was in remand for 1 year and 9 months, awaiting trial. Furthermore, the trial of Felix Keith Vusonitokalau was set 10 days from the date he was granted bail. In this case the applicants have been in remand for more than 2 years and their trial date is unlikely to be set until early 2002.

Applicant 1 has already been released on bail on the same conditions as his co-accused in State v Baljeet Singh & Others (HAC 002 of 2000L, HBM 005 of 2001L, Ruling delivered on 17/07/01).

Applicants 2 and 3 are also released on bail on the following conditions:

i) Each applicant is granted bail on his own recognisance for the sum of $500:00, with a surety each for $500:00;

ii) Each applicant is to report to his nearest Police Station once a week;

iii) Each is to reside at a fixed address - to be provided to this Court. They are not to change their residence without informing the Police;

iv) They are not to communicate with or interfere with any Prosecution witnesses;

v) They are to surrender any passport or travel documents to Court;

vi) They are to appear in this Court at its next Criminal session on 9th October 2001at 9.30a.m.

Application for bail allowed.

Marie Chan