Akao v Attorney General [2011] SBHC 30; HCSI-CC 441 of 2009 (11 May 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 441 of 2009

BETWEEN

SELWYN AKAO
Applicant

-And-

ATTORNEY GENERAL
(Representing Commissioner of Police)
Respondent

Mr Pehu for the Applicant
Mr Firigeni for Respondent

Date of Hearing: 3rd May 2011
Date of Judgment: 11th May 2011

Ruling

1. Selwyn Akao is a police constable. It is said he is "charged" with eight "counts" relating to conduct which was prejudicial to "good order and discipline". This is contrary to Regulation 5(ee) of the Police Regulations ("the Regulations"). The expressions charged and counts are somewhat unfortunate but they tend to flow from the wording of the Regulations which talk of being "guilty of offences against discipline". Those words in turn come from The Police Act [Cap.110] ("the Act") section 34. It is not necessary to go into the details of the offences alleged.

2. As a subordinate officer, i.e. a police officer below the rank of inspector, Constable Akao can be dealt with by a commanding officer under s36(1) of the Act. If guilty of the offences he could be reprimanded, confined to quarters for no more than a week (with or without extra guard fatigue or other duty) or fined an amount not exceeding 5 days pay.

3. Constable Akao has declined to appear before the disciplinary tribunal without legal representation. He has requested that he be legally represented but that request has been turned down by the Commissioner of Police ("the Commissioner"). This is on the basis that the disciplinary proceedings are not a criminal trial and because Regulation 6(g) provides "in disciplinary proceedings before him the Commissioner may, as he thinks fit, allow the accused to be assisted by a gazetted officer (that is an officer at or above the rank of inspector) and, when such permission is given, his defence may be conducted by such gazetted officer".

4. The matter has come before me following a claim lodged pursuant to Rule 15.11.10 [1] as a claim for redress under section 18(1) of the Constitution. The issue I am being asked to consider now is said to be a preliminary matter though to my mind a decision will more than likely dispose of the entire case. The simple point for decision is whether Regulation 6(g) is inconsistent with sections 10(2)(d) of the Constitution. That is, whether a police officer, being dealt with for offences against discipline, is entitled to be defended by a legal representative of his own choice.

5. The first issue is to look at the nature of the disciplinary proceedings. As mentioned above, section 34 of the Act says that a police officer below the rank of inspector who commits an offence against discipline is liable to "suffer punishment". The section goes on to say the disciplinary proceedings "do not exempt the officer from being proceeded against for any offence by any other process of law", but that no officer shall be punished twice for the same offence. I take that to mean if an officer commits a criminal offence which is also an offence against discipline, the disciplinary proceedings are not a bar to his being prosecuted under the criminal law. However, he cannot be sentenced under the criminal law and the disciplinary proceedings. How that works in practice I do not know. I would imagine any sentence under the criminal law would be substantial mitigation in the disciplinary proceedings or any punishment handed down in the disciplinary proceedings would be substantial mitigation in the criminal matter. Section 34 has the marginal note "offences against discipline".

6. Section 36 of the Act deals with procedure. It has a marginal note, "Trial and punishment of offences against discipline". Section 36(1) states the Commissioner can inquire into and deal with offences involving any officer below the rank of inspector. It actually says he can do so, "in the case of any officer other than a gazetted officer". Rather confusingly section 36(1) also says a subordinate officer can be dealt with by a commanding officer. I am not entirely clear about the distinction between an officer who is not gazetted and a subordinate officer. They appear to be one and the same thing. In any event I do not believe anything turns on that point. What it does mean, so far as constable Akao is concerned, is that he could have been dealt with by either the Commissioner or a commanding officer. As he is, or so it appears from the papers before me, being dealt with by a commanding officer he can only be liable for the lesser punishments set out at section 36(3). He is also entitled to appeal to the Commissioner under section 38(3). The appeal before the Commissioner will follow the provisions of section 37(2). If I read that section correctly, if he is unhappy with the Commissioner's decision and/or punishment he can appeal to Police and Prison Services Commission.

7. One question does occur to me. Regulation 6 (g) says, "in disciplinary proceedings before him, the Commissioner may, as he thinks fit, allow the accused to be assisted by a gazetted officer...". Does that mean in proceedings before a commanding officer the subordinate officer is not entitled to such assistance? The Respondent does not argue that and it is agreed the Commissioner has in any event consented to constable Akao being assisted by a gazetted officer. I am not asked to make a decision on that point but in my view the provisions of Regulation 6(g) must apply to all disciplinary proceedings under the Act and the Regulations.

8. The phraseology in the various sections of the Act and the Regulations all sound as if they relate to or involve criminal proceedings. However, just because they mention "offences", "trials" and "punishments" it does not necessarily mean they deal with criminal proceedings. None of the provisions of either the Act or the Regulations refer to a court. These are not criminal matters per se, primarily because they are not subject to the Criminal Procedure Code Act [Cap. 7]. These are not matters which are dealt with by a court meaning any court of Solomon Islands of competent jurisdiction [2]. To put the matter beyond doubt one only needs to refer to section 19(1) of the Constitution. It says, ""court" means any court of law having jurisdiction in Solomon Islands, other than a court established by disciplinary law, and includes in sections 4 and 6 of this Constitution a court established by disciplinary law". The section then goes on to define disciplinary law and disciplined force. Section 19(1)(e) refers to the Police Force. Disciplinary offences are clearly of a quasi-criminal nature, because contravention can lead to trials, findings of guilt and punishment, but they are not criminal offences. The Constitution distinguishes courts of law (both civil and criminal) from disciplinary courts.

9. The importance of that distinction is this. If disciplinary offences are not criminal offences then section 10 of the Constitution cannot apply. The provisions to secure protection of law set out in section 10 are available to persons "charged with a criminal offence". If it was thought necessary to include disciplinary offences within the provisions of section 10 there would have been specific reference to them in section 19 (as in the case of sections 4 and 6).

10. It is argued on constable Akao's behalf, the fundamental rights set out in section 3(a) of the Constitution include the "provisions to secure protection of the law" set out in section 10. That cannot be correct. There would either have to be a reference in section 3 to section 10 or vice versa. The section 10 provisions relate, as indicated above, to persons charged with a criminal offence. In any event section 19(3) of the Constitution specifically states,

(3) In relation to any person who is a member of a disciplined force of Solomon Islands, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter other than sections 4, 6, 7, 8 and 15

Constable Akao does not claim that all the provisions relating to disciplinary law or the procedures governing their administration as set out in the Act and the Regulations contravene the Constitution. His claim is specific, he says his constitutional right "pursuant to section 10(2)(d) of the Constitution has been breached by the Defendant in not affording him that right provided for under the Constitution, in particular the right to be represented by legal representation of his own choice". It can be seen from section 19(3) set out above, he is not able to make that claim.

11. The Regulations are made pursuant to section 72 of the Police Act. It is no part of the Applicant's argument that the regulations could not or should not have been made. It is clear from section 72 the Prime Minister can make regulations and by sub-sections (g) and (h) and he can make them specifically in respect of discipline and in respect of the procedures to be adopted when there are inquiries into offences against discipline. The Applicant does not argue that the "charges" against him and the procedures that are being invoked to deal with them are not contained in or done under the authority of the disciplinary law of the Police Force. That being so he is subject to the provisions of section 19(3) of the Constitution. That section "excludes" the provisions of section 10(2)(d). Indeed it would seem to exclude all of the provisions of section 10 possibly even all the other provisions of Chapter II except those specifically reserved (i.e. those in sections 4, 6, 7, 8, and 15). However, I do not need to make, and do not make, such a finding. This case is concerned only with the provisions of section 10 (2) (d).

12. Lest it be thought that a police officer has no right to the protection of the law by the operation of section 19(3), it should be mentioned that Regulation 6 of the Regulations sets out procedures which would, in the context of a disciplined force, adequately provide such protection. I also bear in mind the words of Lord Denning [3],

"In a disciplined force it is important that those responsible for maintaining discipline should have conduct of disciplinary proceedings. So long as they are conducted fairly and in accordance with natural justice, the trial of disciplinary offences can safely be left to them"

13. In all the circumstances I cannot see that there is a constitutional right for the Applicant, a police officer and a member of the disciplined forces, to be legally represented in disciplinary proceedings conducted under the authority of disciplinary law of the police force. The refusal by the Commissioner to allow legal representation is not a contravention of constable Akao's constitutional rights. That is the whole basis of the Applicants claim and accordingly it must fail.

14. I will hear counsel on the question of costs.

Chetwynd J

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^[1] Solomon Islands Courts(Civil Procedure) Rules 2007
^[2] Section 16 Interpretation and General Provisions Act [Cap.85]
^[3] Maynard v. Osmond [1977] QB 240