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Qicatabua v The State [2006] FJCA 30; AAU0013.2006 (14 July 2006)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM A GENERAL COURT MARTIAL

CRIMINAL APPEAL N0. AAU0013 OF 2006

BETWEEN:

EMOSI QICATABUA
APPELLANT

AND:

THE STATE
RESPONDENT

B Malimali for appellant
S Sharma for State
K Tuinaosara for RFMF
U Ratuvili for Human Rights Commission

ORDER

This is an appeal from a sentence of imprisonment ordered by General Court Martial.

By section 30 of the Republic of Fiji Military Forces Act, Cap 81, a person convicted by a court martial may appeal to the Court of Appeal again his conviction. Miss Malimali for the appellant submits that the omission of any right also to appeal to this Court on sentence infringes the appellant’s rights under section 28 (1) (l) of the Constitution.

By section 121 of the Constitution, this Court has jurisdiction to hear appeals from all judgments of the High Court and such other jurisdiction as is conferred by law. The power to hear appeals from courts martial against conviction is conferred by the RFMF Act but it is limited to appeals against conviction. Miss Malimali has posed four questions she asks the Court to answer. The first two relate directly to the Court’s jurisdiction:

1. Do the provisions of the Constitution provide persons convicted by courts martial with a right of appeal against the sentence imposed upon them?
2. If there is a right to appeal, does that appeal lie to the Fiji Court of Appeal?
   

The jurisdiction to interpret the Constitution is given to the High Court by section 120 of the Constitution. We consider that the only course available to the appellant is to seek a ruling of the High Court on the question of any possible breach of section 28 by the terms of section 30 of the RFMF Act. Whatever the decision of the High Court, any appeal from that decision will lie to this Court.

This is an issue which has been causing concern to the Courts, the Human Rights Commission, the military legal authorities and, of course, many convicted members of the military. This Court’s concern has been repeated many times. It is important that, if there is any remedy open to the appellant, it should be pursued as quickly as possible. Of the many soldiers convicted by courts martial in the last few years, some have already completed their sentences and many others are fast approaching their release date. This appellant falls into the latter category.

We shall adjourn this appeal to the next session of the Court. We consider it is imperative that the issue be placed before the High Court in time for any possible appeal to be ready for hearing in the November session. If there is such an appeal, it may be joined with the present one so they can be heard together.

We would respectfully urge the High Court to give priority to any application in this case so it can be determined with sufficient expedition to ensure that any appeal can be ready for the November session.

WARD, President
BARKER, JA
HENRY, JA

14th JULY, 2006