IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Jurisdiction Review No. HBJ0037D.97S of 1996

IN THE MATTER of an application for Judicial Review by MEHBOOB RAZA
(f/n Tazim Raza) of Howell Road, Suva, Barrister & Solicitor and TAMARA
JAYATILLEKE (f/n Wickremaratne) of Tamavua, Suva, Barrister & Solicitor
(THE APPLICANTS)

AND:

IN THE MATTER of the Ruling of Dr. JINADASA ILANGASINGHE
Resident Magistrate, Suva made on the 10th day of December, 1996
(THE RESPONDENT)

AND:

IN THE MATTER of Inquest No. 5 of 1995 and Criminal Cause
No. 1313 of 1996 in the Suva Magistrates Court

Mr. H. Nagin with Mr. S. Sharma for the Applicants
Mr. D. Singh for the Respondent

DECISION

This is an application for judicial review of the Ruling made on 10 December, 1996 by Resident Magistrate Dr. Jinadasa Ilangasinghe (hereinafter called "the learned Magistrate") in which he held that both applicants committed acts of contempt against his court contrary to section 136(1)(h) and (m) of the Penal Code.

It is not disputed that the Ruling was prepared and delivered by the learned Magistrate without any notice being first given to the applicants about the adjudication in the Ruling. It is a fact that both applicants were taken by surprise when this Ruling was delivered.

This application arose from circumstances that were most unedifying, to say the least.

Applicant Mehboob Raza, barrister and solicitor was counsel for the family in the inquest proceedings (Inquest No. 5/95) which was assigned to the learned Magistrate in the ordinary course of court business. Applicant Tamara Jayatilleke, barrister and solicitor was counsel for the defendant in the criminal proceedings (Criminal Case No. 1313/95) which was also assigned for trial before the learned Magistrate. Both applicants did not want their cases to be dealt with by the learned Magistrate and had been quite active in their attempts to get the cases removed to another Magistrate. The two cases had brought to the fore the difficulties that had been simmering for sometime in the relationship between the applicants and the learned Magistrate. Those difficulties were not helped when the applicants organized a petition which was signed by 17 lawyers including the applicants. The petition dated 13 September 1996 was addressed to the Chief Magistrate and was in these terms:-

"Re: Dr. Jinadasa Ilangasinghe

We, the undersigned members of the Fiji Law Society, feel obliged to address you concerning the abovenamed Resident Magistrate.

We do so out of a deep sense of responsibility to our profession as lawyers and as officers of the court. We believe that the magistrate in question has made it extremely difficult if not impossible for lawyers to properly and effectively discharge their duties as counsel for a variety of reasons. This has resulted in the erosion of confidence of the members of the profession and seriously calls into question the administration of justice in this learned Magistrate's court.

We do not level this allegation against the Magistrate lightly and would be only too happy to amplify on the reasons for the same in a meeting with yourself.

For the present we write to request that effective immediately all our cases listed before the said Magistrate be reallocated to another Magistrate as we feel constrained to advise you that henceforth we do not wish to appear before the said Magistrate in any cause or matter.

We trust that you will take appropriate action in the matter."

With respect the petition brought no credit to the signatories inasmuch as their joint action paid no regard to the rules of court ethics and etiquette which had been built into the justice system to ensure the smooth transaction of court business. Every trained lawyer should know that there are proper and accepted ways of dealing with procedural problems affecting every case. Because lawyers who signed the petition did not reflect more earnestly on their professional responsibilities and duty to the courts we get this sorry state of affairs. The spectacle reflected poorly on everyone involved. That aside, it was clear that the applicants had somehow developed a distinct antipathy towards the learned Magistrate. It was this antipathy which had caused them to seek the removal of their cases from the learned Magistrate to whom those cases were properly assigned. It is a matter of concern that the applicants saw nothing distasteful in their lobbying unashamedly to have their cases reassigned to another Magistrate.

In a letter dated 10 October 1996 to the Chief Magistrate entitled "Re: Dr. Jinadasa Ilangasinghe" applicant Mehboob Raza wrote at length in terms which were heavily critical of the learned Magistrate's judicial style and personality. Suffice it is to refer to the first paragraph of the letter which reads:-

"The writer wishes to express his concern in no uncertain term regarding the capability of the abovenamed Magistrate to discharge his duties impartially, worthy of any Magistrate who has sworn to discharge such duties."

and the penultimate paragraph which states:-

"The above observations are noted with deep concern whether the abovenamed Magistrate is a capable person to discharge his duties honourably and impartially. If the solicitors finding it lacking, then what chance has an unrepresented accused before him."

Another lawyer, Suruj Prasad Sharma who was also involved in the campaign against the learned Magistrate, also wrote to the Chief Magistrate to express his views about the learned Magistrate's capability and attitude. His letter dated 8 October 1996 headed "Re: Dr. Jinadasa Ilangasinghe" reads in part as follows:-

"In all these cases, the writer on account of derogatory and hostile remarks of Dr. Ilangasinghe has been forced to withdraw as Counsel in the best interests of the client - as further representation by the writer would have been detrimental to my standing as a Barrister & Solicitor and prejudicial to the client concerned. Often as a result of withdrawal the clients incoming solicitor have experienced similar difficulties and prejudices.

I am now conceived in the belief honestly held by a number of my colleagues that the learned Magistrate has a number of shortcomings and which include:-

(i) that there is a demonstrable lack of knowledge and appreciation of trite principles of law and practice in particular pertaining to the rules of evidence; principles of evidence; onus of proof; burden of proof;

(ii) that there is a perceived outward hostility towards lawyers who make it plain that the preconceived views held by the Magistrate is not only untenable but outwardly erroneous;

(iii) the arrogant attitude and impatience displayed towards Counsel and accused persons;

(iv) the lack of understanding and appreciation of difficulties of Counsel with simultaneous engagements in the High Court or Fiji Court of Appeal;

(v) lack of understanding of the private practice generally;

(vi) making comments and asking questions prejudicial to the defence and giving the outward appearance of being pro prosecution;

(vii) reportedly discussing cases and giving advice to prosecutors in Chambers in the absence of accused and Counsel;

(viii) reportedly frequenting the offices of the Director of Public prosecutions.

I have as a former colleague and as a practicing lawyer raised these issues directly with Magistrate in Chambers earlier this year in the hope that there would be some improvement in the foreseeable future. Regrettably, this has not been the case. The details of that meeting I will not document but needless to say the foregoing points encapsulate in summary form the issues that I had raised."

Subsequently a meeting was arranged which is described in applicant Mehboob Raza's affidavit at paragraph 5 as follows:-

"5. That because of the continuous problem faced by the other Counsels a petition was sent to the Chief Magistrate and on or about 22 October 1996 a meeting was held with the Chief Magistrate, Dr. Ilangasinghe together with solicitors Mr. Suruj Prasad Sharma, Mr. Tevita Fa, Mr. Haroon Lateef, Ms. Tamara Jayatilleke and myself. That at that meeting specific allegations were outlined with full particulars by all the solicitors present and Dr. Ilangasinghe was given an opportunity to explain and respond to the allegations."

Given the circumstances described and all the goings-on directed at the learned Magistrate, one can understand if the learned Magistrate's reaction was one of umbrage over what he probably perceived as an undeserving campaign of hostility against him.

The problems that had arisen between the applicants and the learned Magistrate could have been avoided if everyone had acted strictly objectively and professionally in the interest of the judicial system. With some reluctance I must say that the Chief Magistrate and the learned Magistrate were not entirely free from blame for the sorry state of affairs that had occurred. I feel certain they could have helped to resolve the problem if they had taken decisive action in what should have been a straightforward procedural matter. It got out of hand because the question of transferring cases from one magistrate to another was treated somewhat loosely or rather informally when proper observance of court procedure and practice was called for. Both judicial officers concerned in this matter should have required all applications for transfer of cases to be dealt with by motions and affidavit. This would have allowed the merit of each application to be properly examined and ruled upon. This would have allowed an aggrieved person from any such ruling to take the matter further on appeal and thereby vindicate the integrity of the legal process and the judicial system. Apart from this there was also the well-established court procedure enabling an application to be made calling on a magistrate to disqualify himself or herself from taking on a case upon proper cause being shown. The appeal process was there to ensure further judicial scrutiny of controversial issues. The importance of following proper court procedure and practice cannot be overemphasized as the circumstances disclosed by the present case clearly demonstrate.

As regards the allegations of incompetence and misconduct against learned Magistrate, these also could have been directed to follow proper channels which in this case would be through the well-established disciplinary procedures administered by the Judicial and Legal Services Commission. It was clearly quite inept for those allegations to have been directed to the Chief Magistrate who lacked the disciplinary powers to act positively and effectively in the matter. It was against this background of hostility against him that had no doubt prompted the learned Magistrate to exercise his judicial power and issued his Ruling on 10 December 1996, the subject of this application. No one except the learned Magistrate had known beforehand about the preparation of that Ruling. As it turned the Ruling adjudged the applicants guilty of the offence of contempt of court. The applicants were not given any notice about the likelihood that those findings would be made against them nor any opportunity given to them to contest the findings. The Ruling which ran into 21 pages dealt with extensively with the procedure for transferring cases within the magistracy and concluded with the findings that the applicants had committed acts of contempt within section 136(1)(h) and (m) of the Penal Code.

The question may well be asked why the learned Magistrate decided to exercise his judicial power to make those findings in the manner he did. It is possible he may have been actuated by his concern and disappointment over the persistent hostility of the applicants and other lawyers towards him and towards the performance of his duties. Be that as it may, and much as one may understand his difficulties, it was however no reason for him as a judicial officer to adopt a modus operandi in his Ruling that was contrary to law. In these circumstances I would have to agree with the general sentiment expressed somewhat loosely in the grounds for judicial review filed in support of the application which were as follows:-

"(i) That the said Ruling of the said learned Magistrate is null and void of no effect on the basis that the learned Magistrate failed to accord to the Applicants procedural fairness by determining their guilt without any or any real opportunity to present their answer and defence to the charge as found proved beyond reasonable doubt pursuant to s 136(h)(m) of the Penal Code Cap 17.

(ii) That the said Ruling of the said learned Magistrate is void and in excess of the jurisdiction conferred upon the learned Magistrate under the Magistrate Court Act, Cap 14, the Penal Code; Cap 17 and the Criminal Procedure Code, Cap 15, thereby rendering it a nullity;

(iii) That the said Ruling of the said learned Magistrate is null and void in that it is based on alleged factual premises which fails to identify with precision or at all the precise acts or conduct of the Applicants which gave rise to the finding of contempt;

(iv) That the learned Magistrate acted in bad faith by his clear abrogation of the Rules of Natural Justice in his determination to charge and hear the proceedings and publish his Ruling as he did;

(v) That the reasons given in the Ruling are tantamount to no reasons on account of it literally being festooned with the learned Magistrate's pre-occupation to make arbitrary, capricious, unfair, unreasonable, irrational and malicious findings with respect to the Applicants such findings having no basis in fact or law and thus in excess of jurisdiction such to render them a nullity;

(vi) That the said learned Magistrate erred in law in his interpretation of the relevant provisions of the Magistrates Court Act, Cap 14, and the Penal Code, Cap 17;

(vii) That the said learned Magistrate erred in taking into account irrelevant considerations and failing to take into account relevant considerations;

(ix) That the said learned Magistrate was actuated by malice and/or bias and/or had predetermined the matter pertaining to the Applicants;

(x) That the said learned Magistrate had acted contrary to the legitimate expectations of the Applicants."

As regards the present application the court is not concerned with the merits of the Ruling itself. It is concerned only with the manner, that is, the decision-making process by which the learned Magistrate arrived at his findings in his Ruling. In my view it was mainly in that respect mainly that the learned Magistrate misdirected himself in his adjudication against the applicants. He breached the rules of natural justice by not giving proper notice to the applicants of his intended action as encapsulated in his Ruling. Nor did the learned Magistrate accord the applicants any opportunity to defend themselves against his findings which were clearly adverse to their interests. The learned Magistrate was under a legal duty to afford them such an opportunity. The essence of judicial review is to ensure that the decision-making process by a court or tribunal was done according to law. Basic to this concept is the requirement that every person who becomes the subject of judicial or administrative scrutiny must be accorded procedural fairness. As was said in the case of Chief Constable of North Wales Police v. Evans [1982] 3 All ER 141 at 143:

"It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he had been subjected …….."

In these circumstances I do not think the applicants had in fact received procedural fairness in the hands of the learned Magistrate. His adjudication was clearly ultra vires i.e. beyond his jurisdiction when he made his findings of contempt against the applicants.

It seems clear also that the learned Magistrate's Ruling fell foul of the principle of legality. This principle requires as a fundamental condition of justice that every court or tribunal must act according to law when adjudicating on issues affecting a person's rights and liabilities. The learned Magistrate's peremptory approach to his findings was unlawful in that he did not follow proper procedures when adjudicating the issues already referred to. The learned Magistrate purported to have based his findings on section 136(1)(h) and (m) of the Penal Code. If that was the case, then the matter should have gone to the police in the first place to investigate and if probable cause was shown to lay charges under the section. No court can have jurisdiction to adjudicate a criminal cause without the charges against a defendant being first formally laid by the appropriate authorities. It is only in the exceptional situation where breaches of section 136(1)(h)or (m) had been committed in the view of the court, that is, in the presence of the court may a court take peremptory action over any such alleged breaches. On the facts of this case the latter situation was not in issue. It follows and I would hold that the Ruling relating to the findings of contempt against the applicants was misconceived as they failed to comply with legal requirements for such adjudication.

For the reasons I have given, this application for judicial review must succeed. The learned Magistrate's findings that the applicants committed acts of contempt against his Court cannot be sustained and will therefore be quashed. It is ordered accordingly. There will be no order for costs.

Chief Justice

Suva
28 May 1997