IN THE SUPREME COURT OF NAURU		Miscellaneous Case No. 10 of 2021
AT YAREN						
MISCELLANEOUS JURISDICTION 	

BETWEEN						

THE REPUBLIC					Applicant

AND

XAVIER NAMADUK				Respondent	

Before:					Khan, ACJ
Date of Hearing:			7 January 2022
Date of Ruling:			14 January 2022

Case to be referred to as:	The Republic v Namaduk

CATCHWORDS:  Application under Article 5(3) of the Constitution for detention of the suspect to allow police to complete their investigations – Application made in the District Court – Magistrate after interpreting the Constitution made a finding that he had no jurisdiction to hear the application – whether he had jurisdiction to interpret the Constitution –Supervisory Jurisdiction – Whether the Magistrate was correct in holding that he had no jurisdiction to deal with the application. 

APPEARANCES:	

Counsel for the Applicant:		F Puleiwai		
Counsel for the Respondent:		E Soriano

RULING

INTRODUCTION

1.	On 19 January 2022 the applicant filed an application in the District Court before Magistrate Lomaloma (Magistrate) for further detention of the respondent who was arrested on 18 December 2021 for an allegation of an indecent act on his wife’s 12-year-old niece.  

2.	The Magistrate delivered a written ruling at 4.15pm and refused to grant the application for extension and held that it was beyond his jurisdiction and stated at [17] and [18] as follows: 

[17]	The Article 3 – Right to Freedom of the respondent can only be restricted by written law made by Parliament under Article 5.  The police have arrested him without a warrant on suspicion of having committed an offence.  They have power to do this under section 11 of the Criminal Procedure Act or section 270 under the Crimes Act.  Once brought to Court, the Judges have the inherent power to extend the remand or detention.  The power that the Resident Magistrate had has been revoked.  The effect of that it that Article 3 right of the respondent to liberty is alive.  I do not have the power to overcome Article 3 of the Constitution.  I am being asked here in this application to overcome a provision of the Constitution which I cannot do and therefore I do not have the power to extend the remand or the detention of the respondent. 

[18]	I therefore transfer the matter to the Supreme Court because as a judicial officer, I cannot do something that I clearly believe is beyond my powers.  

3.	Later that day the matter was called before me at around 4.45pm when Mr Tagivakatini appeared on behalf of the respondent and conceded to his detention until 24 December 2021.  I detained him at Nauru Correctional Centre and ordered that the police were at liberty to have access to him at the Nauru Correctional Centre or to take him to Nauru Police Station for the purposes of further investigation including taking his record of interview. 

4.	After the order for detention was made, Miss Puleiwai advised the Court that she was contemplating filing an appeal against the Magistrate’s ruling and wanted time to consult the Director of Public Prosecutions.  

5.	On 22 December 2021 Miss Puleiwai wrote to the Registrar of the Court stating that she was intending to refer the Magistrate’s ruling to the Supreme Court by way of a case stated and sought guidance from him as to how it can be done in the absence of any rules made by the Chief Justice under the Supreme Court Act 2018.  

6.	On 24 December 2021 the respondent was charged with one count of indecent act under section 117 of the Crimes Act 2016 and appeared before the District Court.  

7.	On 24 December 2021 I mentioned that I may be exercising the supervisory jurisdiction in this matter.  On 30 December 2021 I advised Miss Puleiwai and Mr Clodumar for the respondent that I will be giving my reasons for my ex tempore ruling on 19 December 2021; and that I may not be exercising the supervisory jurisdiction and ordered both parties to file written submissions and adjourned the matter to 5 January 2022 when Mr Soriano appeared for the respondent and advised that he will not be filing any written submissions on behalf of the respondent.  Miss Puleiwai was given further time to file written submissions which were filed on 7 January 2022. 

8.	In her written submissions Miss Puleiwai raised two issues namely: 

Issue No. 1

Whether the resident Magistrate can hear application for further detention under Article 5(3) or does he/she require another enabling provision?

Issue No. 2

Whether it was proper for the RM to transfer the matter to the Supreme Court when he has stated that he does not have the jurisdiction to deal with such application?

9.	Miss Puleiwai also invited the court to use the revisionary powers under section 59 of the Supreme Court Act in addition to the supervisory powers.  On reflection I shall only exercise the supervisory jurisdiction as this is a miscellaneous matter. I cannot exercise the revisory powers as this is not a criminal matter.  

10.	In the case of Republic v Pickering I discussed Article 5(3) at [15] and [16] where I stated as follows: 

[15]	I agree with Miss Puleiwai that Article 5(3) only deals with its application for extension and does not involve its interpretation so there is no need for an application to be made by way of a Constitutional Redress. 

[16]	In the circumstances I with respect differ from the observations made in the case of R v Joshua Agege and conclude that any application for extension of time for a person arrested or detained by the police can be made by way of a motion and affidavit which can be dealt with by the Resident Magistrate who is a judicial officer within the provision of Article 56 or a judge in his absence.  

11.	As the detention was not opposed, I feel it is not necessary for me to give a reasoned ruling and I rely on my reasons in the case of Republic v Pickering.  

SUPERVISORY POWERS

12.	The supervisory powers of this Court are set out section 37 of the Supreme Court Act 2018.  Section 37 states: 

1)	The Supreme Court as the superior court shall have supervisory power and jurisdiction over subordinate or inferior Courts and Tribunals.  

2)	In the exercise of supervisory jurisdiction, the Supreme Court shall grant such prerogative reliefs it deems fit or as prescribed by the rules of the Court. 

3)	Where an appeal procedure is provided to appeal a judgement, decision or order of the subordinate or inferior court or tribunal to the Supreme Court, the only remedy or redress for the review of the decision of such subordinate court or tribunal is by way of appeal.  

4)	The Chief Justice shall make rules for the exercise of the supervisory jurisdiction. 

5)	This Part does not apply to criminal causes or matters. 

CONSIDERATION

13.	Now let me analysis the Magistrate’s ruling.  He firstly stated that: 

“I had told the prosecutor in the past that I have no jurisdiction to deal with purely constitutional applications filed in the District Court.  Despite this the prosecutors continually file constitutional applications under Article 5(3) of the Constitution in this Court.”

14.	On the issue of jurisdiction, he stated that parties should file applications in the right court or forum and stated at [3] as follows: 

[3]	Parties who file should do so in the right Court with the right jurisdiction.  Family Court applications should be filed in the Family Court and judicial review applications should be filed in the Supreme Court.  Original constitution applications are required to be filed in the Supreme Court as Article 54(1) of the Constitution requires: 

54(1)	The Supreme Court shall, to the exclusion of any other court, have original jurisdiction to determine any question arising under or involving the interpretation or effect of any provision of this Constitution. 

54(2)	Without prejudice to any appellate jurisdiction of the Supreme Court, where in any proceedings before another court a question arises involving the interpretation or effect of any provision of this Constitution, the cause shall  be removed into the Supreme Court, which shall determine that question and either dispose of the case or remit it to that other court to be disposed of in accordance with the determination.
		
15.	He stated that he had been forced to deliver a ruling on why he will not deal with Article 5(3) application under the Constitution; and that to give this ruling he had to go against the provisions of the Constitution; that he decided against stating a case as it would be a lengthy process; and he further stated that if he were to do so the respondent would be held under section 19 of the Criminal Procedure Act 1972.  

16.	On the issue of interpretation of the Constitution he stated that certain articles in the Constitution are “self-executing” for which no legislation has to be enacted and he gave examples of Articles 6 and 55.  He stated that Articles 5, 56 and 59 are “non-self-existing” for which law has to be enacted to put those provisions into effect.  He stated that to put Article 56 into effect the District Court Act was enacted.  He repeatedly stated that he had no powers to detain a person who has not been charged.  

ARTICLE 5(3)

17.	On Article 5(3) he stated at [10] and [11] as follows: 

[10]	To understand Article 5(3), one must start with Article 3 of the Constitution which guarantees personal liberty in the preamble which sets out the fundamental freedoms: 

	Article 3

	Whereas every person in Nauru is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following freedoms, namely: 

a)	Life, liberty, security of the person, enjoyment of property and the protection of the law; 

[11]	The right to liberty under Article 3 of the Constitution can only be limited by another provision of the Constitution or in non-executing provisions, the Constitution gives Parliament the power to make laws to restrict the right to liberty in Article 5. 

PROTECTION OF PERSONAL LIBERTY 

18.	Article 5(1)

No person shall be deprived of his personal liberty, except as authorised by law in any of the following cases: 

a)	In the execution of the sentence or order of a Court in respect of an offence of which he has been convicted;  

b)	For the purpose of bringing him before a Court in execution of the order of a court; 

c)	Upon reasonable suspicion of his having committed, or being about to commit, an offence.

Article 5 (3)

A person who has been arrested or detained in circumstances referred to in [c] of Clause (1) of this Article and has not been released shall be brought before a judge or some other person holding judicial office within a period of 24 hours after the arrest or detention and shall not be further held in custody in connection with that offence except by order of a judge or some other person holding judicial office.  

19.	He further stated that Article 5(1) – a law has to be enacted to deprive a person of his liberty and that no such law has been enacted and that Article 5(3) is a proviso to Article 5(1) and only after law is enacted that the rights of a person can be deprived; that judges have inherent jurisdictions whilst the District Court does not have inherent jurisdiction and section 14 of the District Court Act 2018 does not authorise him as a Magistrate to exercise any powers under the Constitution.  

20.	He also stated that Article 3 rights can only be restricted by written law made by Parliament under Article 5 “the effect of that is that Article 3 rights  of the respondent to liberty is alive.  I do not have the power to overcome Article 3 of the Constitution.  I am being asked here in this application to overcome a provision of the Constitution which I cannot do and therefore I do not have the power to extend or remand or detention of the respondent”.

ARTICLE 3

21.	In respect of Article 3 the Magistrate stated that the liberty of a person can only be curtailed by other provisions of the Constitution which has non-existing provision but under Article 5 the law has to be enacted to restrict right of liberty. 

INTERPRETATION OF THE CONSTITUTION – WHETHER THE MAGISTRATE HAD JURISDICTION TO INTERPRET THE CONSTITUTION

22.	Having outlined the ruling, I would say that with respect, that the Magistrate appears to be confused as he stated, firstly, that he had no powers to deal with an Article 5(3) application and, secondly, section 14 of the District Court Act did not give him any express powers to exercise any powers under the Constitution; and yet he embarked on this lengthy process of interpreting the Constitution for which had no jurisdiction.  This is provided for in section 30 of the Supreme Court Act 2018 and was discussed at length by me in the case of R v Pickering at [11] and [14].  At [14] it was stated as follows: 

[14]	In clause 30 of the Explanatory Notes, it is stated: “What is left out is the application of the Articles of the Constitution because if the interpretation is not in question, the application is not an issue for the Court to apply the Constitution to a given set of facts in a case.” What this means is that the District Court is allowed to apply the articles of the Constitution when interpretation is not in question, for example, if the District Court is conducting a voir dire for the admissibility of a confession, it can apply Article 5(3) to ascertain as to whether an accused was brought to the Court within 24 hours, and if not, then it can make a finding that his detention was unlawful and consequently make a finding that any confession made as a result of the unlawful detention is inadmissible. 

23.	On the basis that the Magistrate did not have jurisdiction to interpret the Constitution, I can simply set aside his ruling under the supervisory jurisdiction but I shall address the issues raised by him to provide further clarity to the District Court as well as the DPP’s office as they are using provisions like sections 19 and 51 of the Criminal Procedure Act 1972 to make application for further detentions of suspects.  Those sections and in particular section 51 do not give any powers to a Magistrate to detain a suspect pending an investigation and it should not be used to detain a suspect.  Section 51 was discussed in Scotty v The Republic.

24.	The Magistrate is confused in that he is of the view that Article 3 confers rights on a citizen – it does not.  Article 3 was discussed In re The Constitution v Jeremiah v Nauru Local Government Councils Thompson CJ stated as follows at page 1: 

	“The reference in Article 3 to an entitlement to fundamental rights and freedoms of the kinds stated therein is intended to refer not to any pre-existing rights and freedoms, but only to those set out in detail in Articles 4 to 13 inclusive.”

	And he further stated at page 5 as follows: 

“On the same day Professor Davidson, the Advisor to the Convention, said “Rights should be ones that it is easy to define, so that, when they are brought before the Court, the Court will have no doubt at all of the action to be taken”; and “Article 3 contains a brief reference to this Part of the Constitution”. On 4th January, 1968, he had said “This Article was intended only as a summary the general principles underlying the specific rights to be conferred by the succeeding Articles in Part II.”

“ It is clear that there was no acceptance by the Constitutional Convention of the whole of the Universal Declaration of Human Rights as establishing a substructure of legally enforceable rights more extensive than those spelled out in Articles 4 to 13 of the Constitution. In the light of that knowledge it is possible to resolve the apparent ambiguity of Article 3. The reference in the preamble in Article 3 to an entitlement to fundamental rights and freedoms of the kinds stated is clearly not intended to refer to any pre-existing rights and freedoms but only to those set out in detail in Articles 4 to 13.”

25.	It is correct that under Article 5(1) a person cannot be deprived of his right as to liberty except as authorised by law and laws have been enacted in that regard, laws like the Criminal Code (now the Crimes Act 2016), Motor Traffic Act, Bail Act etc.  

26.	I do not agree with the Magistrate’s observation that Article 5(3) is a proviso to Article 5(1) – the two are two different provisions and have to be interpreted in that way.  On interpretation of Constitutions, the Nauru Court of Appeal in Republic v Batisua it is stated at [31], [32] and [33] as follows: 

[31]	In the Reference by the Queen’s Representative (1985 LRC (Const) 6, the Court of Appeal of the Cook Islands uses the expression “broad contextual approach” in the interpretation of Constitutions.  See also James v Commonwealth (1936) 55 CLR 1, [1936] 12 All ER 1449, where the Privy Council said: 

	“The words used [in a constitution] are necessarily general and their full import and true meaning can only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge.  It is not the meaning of the word changes, but the changing circumstances illustrate and illuminate the full import of that meaning.”

[32]	See also AG for Ontario v AG for Canada [1947] 1 All ER 137, at 145, the Privy Council in referring to the Canadian Constitution said, that a ‘…  flexible interpretation must be given that changing circumstances require’.

[33]	In The Queen v Beauregard, (1987) LRC (Const) 180 the Supreme Court of Canada, when referring to the Canadian Constitution made some very pertinent comments: 

	“The Canadian Constitution is not locked forever in 119 – year old casket.  It lives and breathes and is capable of growing to keep pace with growth of the country and its people.” (Emphasis added)

	“… interpreting a constitution or any organic statute such as [British North American Act 1867, the Canadian Constitution] that construction most beneficial to the widest possible amplitude of its powers must be adopted.”

27.	Article 5(3) confers powers on a judge or “some other person holding judicial office” to either remand a person who has been arrested or detain as suspect of having committed an offence.  As stated above the Constitution is a living document and it grows to keep pace with growth and its people and in Nauru’s context the position previously was that judges were only visiting the Island on circuit and in their absence the only persons “holding judicial office” would have been the Magistrate/Registrar who exercised the powers under Article 5(3).

28.	Under the Interpretation Act 2011 a Magistrate is defined as: see section 2 of the Courts Act 1972 and in the Courts Act the District Court comprises of the resident Magistrate and three lay Magistrates.  The question that I pose is are they not “persons holding judicial office”?  The simple answer is that they are.  

WHO IS A PERSON HOLDING A JUDICIAL OFFICE?

29.	Miss Puleiwai pointed out that in her submissions that neither the Constitution, nor the Supreme Court Act or the District Court Act has defined as to who is a judicial officer but the Administration of Justice Act has and at section 4 – “Judicial Officer” is defined as – includes the Chief Justice, Justices of Appeal, Judges of the Supreme Court, Resident Magistrate, Registrar or any other person or body vested with judicial power to adjudicate disputes between or amongst persons.  

JURISDICTION OF THE DISTRICT COURT

30.	The Magistrate has stated that section 14 did not empower him to exercise any powers under the Constitution.  Section 14(b) states that: “Jurisdiction conferred on it by this Act or any other written law.”; the jurisdiction is conferred by the District Court Act and any other written law.

WHAT IS ANY OTHER WRITTEN LAW?

31.	Section 35 of the Interpretation Act 2011 states that written law means:  

a)	The Constitution; or 

b)	An act; or 

c)	A statutory instrument.

32.	So, the jurisdiction of the Magistrate under section 14 is given to him under the District Court Act and any other written law includes the Constitution and therefore the Magistrate has powers under the Constitution to hear applications for detention under Article 5(3) of the Constitution. 

MAGISTRATE’S VISIT TO DPP’S OFFICE BEFORE THE APPLICATION WAS FILED

33.	Miss Puleiwai in her submissions stated that the Magistrate visited her office to enquire about the application and as to who was the counsel in the carriage of the matter and she told him that it was her. She also told him that the application was under Article 5(3) of the Constitution.  In relation to the visit by the Magistrate to her office, in her written submissions she states as follows at [6.0] to [14.0]:

[6.0]	That shortly after that phone call with the Registrar about 10 minutes later, the RM came to the office of the DPP and enquired as to who was the counsel handling the fresh case, to which I informed the RM that I would be handling the said case.  

[7.0]	Thereafter RM informed me that he had been waiting and he wish to have the matter called now since he had other commitments, to which I requested for a few more minutes since the police officers had just arrived and I was still working on the Affidavit, however, the application would be under Article 5(3) of the Constitution.  

[8.0]	I also informed the RM that the Registrar was also informed of it and that the Registrar was supposed to inform the RM, to which RM stated that he was not provided any update, thus the reason he came to the office to have the matter called then.  

[9.0]	The RM stated he cannot hear our application under Article 5(3) of the Constitution and insisted that we proceed to Court and we could file charges under section 51 of the Criminal Procedure Act 1972 to which I respectfully informed RM that I disagree with that procedure and insisted that we file our application under Article 5(3) and would have to consult our superiors on the same day before we proceed further.  

[10.0]	The RM insisted that he could hear the matter provided the police officers gave evidence and he did not involve the prosecution to which I respectfully disagreed and informed the RM that the police also has orders that it is my case to which the police will have to wait on my instructions.

[11.0]	The RM then stated that he will wait for the charges to be filed and he will hear the matter but definitely not under Article 5(3) of the Constitution.  

[12.0]	I then informed the Registrar of the same to which the Registrar stated that I will still need to file our papers at the District Court and the RM will have to make a ruling on it under Article 5(3) of the Constitution.  

[13.0]	I then filed a Notice of Motion and Affidavit under Article 5(1)(c) and Article 5(3) of the Constitution at the District Court at about 14.01 hrs to which the RM then called for the matter at about 1500 hrs and stated that he would deliver his ruling at 15.45 hrs since he cannot hear our application as he has earlier stated to the Applicant on the previous occasions.

[14.0]	At about 1615 hrs, the RM then delivered his ruling on our Application (Attached as “Annexure A” is a copy of the ruling) stating in [17] that “I do not have the power to overcome Article 3 of the Constitution.  I am being asked here in this application to overcome a provision of the Constitution which I cannot do and therefore I do not have the power to extend the remand or detention of the respondent.’  And further in [18] of the said ruling, RM concluded that ‘I have therefore transfer the matter to the Supreme Court because as a judicial officer, I cannot do something that I clearly believe is beyond my powers.”

34.	The matters that she raises in her submissions are very serious allegations against the Magistrate about his conduct and fairness dictates that I should have asked him to provide me with a response but he is on leave and will not return until the end of the month.  

35.	In light of what I have been informed, and if it is true (and I emphasise that), then I wish to state that the Magistrate should not have gone to the office of the DPP to find out about the status of the application.  Those matters should have been left to the court clerk to attend to.  Further, the Magistrate had no right to discuss the nature of the application and when told that the application would be under Article 5(3), he should not have expressed any opinion about it in her office.  He should have waited for the application to be filed and then raise any concerns about its appropriateness in Court.  From her submissions, it appears that the Magistrate did not raise any issues in court except to say that: 

“I have the opinion that I do not have the power to deal with an application to remand someone under Article 5(3) of the Constitution.  I will deliver my reasons for my ruling later today.”

36.	The Magistrate acted in a manner which has the potential of allowing parties to lodge complaints against the judiciary and his action alone has the potential of bringing the administration of justice into disrepute.  

CONCLUSION

37.	Under the supervisory powers of this Court under the Supreme Court Act I set aside the Magistrate’s findings that he had no jurisdiction to hear the Article 5(3) application.  For the reasons given above, he heard the jurisdiction but he failed to exercise it.  

38.	I wish to categorically state that a suspect can only be detained beyond the 24 hours pursuant to an application made under Article 5(3) of the Constitution and not under any other legislation.  

NEW INFORMATION

39.	As I was about to complete my ruling in this matter, two matters came to my attention about Article 5(3) when I was doing a sentencing hearing ( Kep Kepae) and a bail ruling (Uam Mau) yesterday which are:

a)	In the matter of Republic (applicant) v Kepae (respondent) Case No. 6 of 2020 the Director of Public Prosecutions filed an application by motion for further detention on 13 October 2020 under Article 5(3) of the Constitution and Bail Act 2018 where the respondent was not charged and was remanded by the Magistrate in custody and order was made the that are charges to be filed as soon as possible.
   
b)	In the matter of Republic (applicant) and Uam Mau (respondent) Miscellaneous Case No.4 of 2021 an application by motion was filed by the Director of Public Prosecutions under Article 5 of the Constitution and Section 10 of the Criminal Procedures Act 1972 on 19 February 2021.  Section 10 was crossed off and section 270 of the Crimes Act 2016 was inserted in its place.  The respondent was not charged for any offence at that time and the Magistrate remanded him for 7 days to allow the police to complete their investigations.

DATED this 14 day of January 2022

Mohammed Shafiullah Khan
Acting Chief Justice