IN THE HIGH COURT OF FIJI
(AT LAUTOKA)
APPELLATE JURISDICTION

CIVIL APPEAL NO HBA0001J.99L

Between:

SURYA PRAKASH
of Tavua, Lecturer
Appellant/Defendant

And:

SHIRLEY RESHMI NARAYAN
of Rabulu Tavua, Domestic Duties.
Respondent/Complainant

For the Appellant: A. K. Narayan
For the Respondent: G. P. Shankar

Date of Hearing: 17 February 1999
Date of Judgment: 5 May 2000

JUDGMENT

This is an appeal from a decision of the learned Magistrate at Tavua handed down on 7 January 1999 in which interim custody of Sudharsan Prakash Sami was granted to Shirley Reshmi Narayan the respondent and wife of Surya Prakash the respondent. Reasonable access was granted [sic] the appellant. This order was made in the course of a suit for maintenance filed by the respondent against the appellant. There are two children of the marriage, Sudharsan and Akarshan. The former was two years eight months old and the latter was about nine months at the time the matter arose at first instance. Prior to 7 January 1999, Sudharsan lived with the appellant's parents and Akarshan with the respondent. On 29 January 1999 the learned Magistrate stayed further proceedings pending determination of this appeal but declined to set aside the interim custody order.

The grounds of appeal are:

1. That the learned Trial Magistrate erred in law and acted ultra vires in making an interim order as to the custody of the child Sudharsan Prakash Sami;

2. That the learned Trial Magistrate erred in law in refusing to grant an adjournment when requested on the first call of the summons in order for the appellant to properly present his case and call witnesses where the appellant was denied a fair hearing;

3. The appellant reserves the right to file additional grounds upon receipt of the copy records of the proceedings before the learned Trial Magistrate.

The appellant seeks to set aside the interim on study order made on 7 January 1999. He applies for an order that the status quo immediately prior to the said decision be reinstated so that custody of Sudharsan Prakash Sami is returned to the appellant until the hearing of the respondent/complaint. He also seeks costs both in the court at first instance and of these proceedings.

The respondent had sought maintenance from the appellant for herself and their children under section 3(d) of the Maintenance and Affiliation Act Cap. 52 (the "Act") on the basis that he had deserted her. The interim custody order made by the learned Magistrate was pursuant to section 4(b) of the Act which provides:

"4. A magistrate hearing any application under the provisions of section 3 may make an order or orders containing all or any of the following provisions:

(b) that the legal custody of any children of the marriage between the applicant and her husband be committed to the applicant or to any other person and, where such provision is made, such provision also as the court thinks fit for access to those children by the husband or wife as the case may be, ......."

Learned counsel for the appellant contended that in making the interim custody order the learned Magistrate had exceeded his jurisdiction. There was no reference in section 4(b) of the Act to interim orders. A contradiction was also drawn with the Matrimonial Proceeding Act 1960 (UK) which conferred powers on magistrates' courts to grant such relief although the analogy is not an accurate one as the Matrimonial Causes Act Cap. 51 is a more valid comparison.

In Rigamoto Kamoe v Anita Rudra Wati Kamoe Civil Appeal No. 3 of 1984, the appellant appealed the decision of the learned Magistrate granting the respondent an interim custody order, Rooney J concluded that:

"There is nothing in the Maintenance and Affiliation Act which empowers a Magistrate's court to make such an order. Section 14 provides that a court may order interim payments of maintenance when an application is adjourned, but, that is not sufficient authority to enable a magistrate to order interim custody."

However his Lordship added the following caveat:

"It may be that the magistrate had jurisdiction under some other statute to make the order which he made, but, as he did not invoke any such authority, I am reluctantly obliged to hold that he exceeded his powers in making the order, even though he did so for the best possible motive."

Although not stated, the learned Judge was mindful of the principle that where jurisdiction is conferred by statute, the grant of power must be specific and cannot be implied. Consequently section 4(b) of the Act did not include the making of interim custody orders. While that reflects the general position it admits of exceptions one of which will shortly be considered.

Learned counsel for the appellant also cited the case of Brij Lal v Regina Criminal Appeal No. 91 of 1983. It concerned a custody order made under section 4 of the Act. However the case turned on the conduct of the learned Magistrate in purporting to make an order without having learned any evidence. It does not advance the issues litigated in this appeal.

Under section 26 of the Act, all applications shall be made in accordance with the provisions of Criminal Procedure Code Cap. 21. This, in the court's respectful opinion, merely prescribes the procedure to be followed. It is without prejudice to the jurisdiction of the Magistrates' Courts conferred either under the Act or the Decree Magistrates' Courts (Civil Jurisdiction) Decree 1988 (the "Decree"). The long title of the Criminal Procedure Code is self explanatory: "An Act to make provision for the procedure to be followed in criminal cases."

However, as magistrates' courts are creatures of statute, it is necessary to consider the relevant provisions of the Magistrates' Courts Act Cap 14 as amended by the Decree which sets out their jurisdiction in detail.

Section 2(1) (e) of the Decree states:

"2.- (1) A resident magistrate shall, in addition to any, jurisdiction which he may have under any other Act for the time being force, have and exercise jurisdiction in civil causes -

(e) to appoint guardians of infants, and to make orders for the custody of infants;....

Provided that magistrate's court shall not exercise jurisdiction -

(iv) except as specifically provided in the Matrimonial Causes Act or any any [sic] other Act for the time being in force, in suits wherein the validity or dissolution of any marriage is in question;........." (emphasis added)

Section 2(1)(e) confers a jurisdiction on a magistrate's court in custody matters concurrent to that given by section 4(b) of the Act. The proviso in section 2(1)(e)(iv) of the Decree obliges the exercise of those powers only in accordance with the Matrimonial Causes Act and other relevant legislation in legal proceedings concerning the validity or dissolution of marriage. What that means in effect is that the provisions of those Acts in applicable circumstances are to be followed rather than the provisions of the Magistrates' Courts Act.

The decision that is the subject of appeal rose in Maintenance Action No. 34 of 1998 in the Magistrate's Court at Tavua. The respondent filed for maintenance on the grounds of desertion.

While that is a ground for divorce (provided the two year period is met), the proceedings before the learned Magistrate only concerned maintenance. They did not touch upon "the validity or dissolution of any marriage in question..." That may well come later. The court is fortified in this approach by the simple fact that a party may seek maintenance without (yet) wishing to invalidate or dissolve the marriage. Maintenance Act No. 34 of 1998 was merely that and as such the proviso to section 2(1)(e)(iv) of the Decree did not apply.

Having so determined, section 27(2) of the Magistrates' Courts Act falls to be considered. It states:

"27. (2) A magistrate in the exercise of the jurisdiction vested in him by this Act shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies or relief whatsoever, interlocutory or final, as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim or defence properly brought forward by them respectively or which shall appear in such cause or matter; so that as far as possible all matters in controversy between the said parties respectively may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided." (emphasis added)

The provision confers power upon Magistrates' Courts to grant interim and final orders. As it has jurisdiction to make custody orders by section 2(1)(e) of the Decree and is not limited to the exercise of powers in accordance with section 4 of the Act, section 27(2) is to be read as enhancing the powers in subsection (2). This interpretation is supported by the opening words of section 2(1) of the Decree which provide:

"2.- (1) A resident magistrate shall, in addition to any, jurisdiction he may have under any other Act for the time being in force, have and exercise jurisdiction in civil causes...." (emphasis added)

The court is therefore satisfied that the learned Magistrate acted within jurisdiction in making the interim custody order that is the subject of this appeal. Hard this argument been put in Kamoe's case supra Rooney J. may well have come to a different conclusion.

As regards the Act itself, the court relies on sections 22 and 43(2) of the Constitution as well as article 3 of the Convention on the Rights of the Child ("CRC") which was ratified by the Republic of the Fiji Islands in 1993. Section 22 of the Constitution forms part of the Bill of Rights provisions set out in Chapter 4. It states:

"22. Every person has the right to life. A person must not be arbitrarily deprived of life."

While this prosaic formulation has none of the eloquence of the timeless phrase "the right to life liberty and the pursuit of happiness" set out in the American Constitution it is no less meaningless. Sections 3 and 21(4) of the Constitution emphasises the need to take a broad and contextual approach to the interpretation of its provisions. The former provision makes specific reference to a construction that would promote the purpose or object underlying the provision and developments in the understanding of the context and promotion of particular human rights. Seen in that light and having regard to the preamble together with the compact in Chapter 2 of the Constitution, the right to life in the court's respectful opinion is more then [sic] merely the right to draw breath. It is put simply, the right of every person, subject to certain qualifications, to enjoy the rights and privileges that are guaranteed by the Constitution. This follows by necessary implication from the proposition that one has to be alive to derive those benefits. In the particular case of Sudharsan Prakash Sami, the child of the parties and subject of the interim custody order, his right to life has to be seen in its proper context bearing in mind his status as a child.

Section 43(2) of the Constitution states:

"43(2) In interpreting the provisions of this Chapter, the courts must promote the values that underlie a democratic society based on freedom and equality and must, if relevant have regard to public international law applicable to the protection of rights set out in this chapter." (emphasis added)

The provision allows regard to be had to the CRC subject to it being relevant. The nature of the right to life Sudharsan Prakash Sami enjoys in the present context has already been canvassed. It is reinforced by article 3 of the CRC paragraph l of which is in these terms:

"Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration." (emphasis added)

The article casts a clear obligation on the relevant institutions of state parties to the CRC to take account of the principle. The practical effect of this duty is in the construction of legislation and administrative procedures in order to effect the intentions of the applicable international norm.

In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 their Honours of the High Court of Australia held that ratification of the CRC gave rise to a legitimate expectation that the Minister would act in conformity with it and treat the best interests of Mr Teoh's children as a primary consideration. Mr Teoh was the subject of a deportation order because of criminal activities and the provisions of the CRC were successfully prayed in aid in relation to the best interests of the child (article 3) and the right of a child not to be separated front either parent (article 9). Although a convention ratified by the Commonwealth of Australia has to be validly incorporated by statute to become part of its laws, ratification grounded a legitimate expectation, in the absence of statutory or executive indications otherwise, that administrative decision makers would act consistently with the CRC's provisions.

Although what was under consideration was the effect of ratification of CRC on administrative decision-making, nevertheless the manner in which its relevant provisions were imported to affect domestic concerns is in the court's respectful opinion, its most significant aspect. Mason CJ and Deane J in the course of their judgment discussed the effect of an international contention on the construction of a statute as follows at 287:

"It is accepted that a statute is to be interpreted and applied as far as its language permits, so that it is in conformity with and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to form a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the proceeding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more then [sic] a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations." (emphasis added)

Those dicta are directly in point and the court respectfully adopts them. They apply here with greater force in the light of Chapter 4 of the Constitution and more particularly the terms of section 43(2). Debate continues in Australia over the efficacy of an entrenched bill of rights. In the present situation where it is left to the common law and ordinary statute to assure such rights, it is noteworthy that the learned Judges of the High Court held the Minister was obliged to act in accordance with the relevant provisions of the CRC.

In Vishaka v State of Rajasthan (1997) VII AD SC 53 the learned Judges of the Supreme Court of India considered a class action for a writ of mandamus in the light of the guarantees of gender equality and the right to life and liberty under the Indian Constitution. The applicant had instituted proceedings to safeguard against sexual harassment. Citing international conventions on the subject including the Convention on the Elimination of all forms of Discrimination against Women, it was held that in the absence of domestic law, such international norms were significant for the purpose of interpreting the constitutional guarantees in question. Referring to Teoh's case supra their Honours continued at 59:

"The meaning and content of the fundamental rights guaranteed by the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. Independence of Judiciary forms a part of our constitutional scheme. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law." (emphasis added)

Their Honours proceeded to formulate guidelines on the basis of the applicable international customary law. The course adopted by the learned Judges in this court's respectful opinion, appears at first blush to blur the distinction between the legislative and judicial power notwithstanding the constitutional provisions and applicable international norms. While it has some reservations about the extent to which the courts can develop guidelines as in Vishaka's case supra without being accused of usurping the legislative function, the court nevertheless respectfully adopts the manner in which reliance was placed on international norms. It also underscores the importance placed on a state's international obligations attendant upon ratification. In Tavita v Minister for Immigration [1994] 2 NZLR 257 Cooke P. had this to say about the suggestion that on the facts the state could ignore international instruments at 266:

"That is an unattractive argument, apparently implying that New Zealand's adherence to the international instruments has been at least partly window dressing."

Mason CJ and Deane J in Teoh's case supra discussed the consequences of ratification in these terms at 287:

"But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations and/or a treaty or international Conventions to which to Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law."

What clearly emerges from a consideration of the authorities cited is the recognition by the courts that certain consequences are attendant upon ratification of a treaty or convention by a state. It is immaterial whether or not its provisions have been incorporated in domestic law.

The court is also mindful of the "Bangalore Principles" that were formulated in 1988 by a high level colloquium of eminent judicial persons from throughout the Commonwealth. Those which are particularly relevant for present purposes are set out below:

"4. In most countries whose legal systems are based upon the common law, international conventions are not directly enforceable in national courts unless their provisions have been incorporated by legislation or into domestic law. However, there is a growing tendency for national courts to have regard to these international norms for the purpose of deciding cases where the domestic law - whether constitutional, statute or common law - is uncertain or incomplete.

5. This tendency is entirely welcome because it respects the universality of fundamental human rights and freedoms and the vital role of an independent judiciary in reconciling the competing claims of individuals and groups of persons with the general interest of the community.

6. While it is desirable for the norms contained in the international Human rights instruments to be still more widely recognised and applied by national courts, two process must take fully into account local laws, traditions, circumstances and needs.

7. It is within the proper nature of the judicial process and well-established judicial functions of national courts to have regard to international obligations which a country undertakes - whether or not they have been incorporated into domestic level - for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.

8. However, where national law is clear and inconsistent with the international obligations of the state concerned, in common law countries the national court is obliged to give effect to national law. In such cases the court should draw such inconsistency to the attention of the appropriate authorities since the supremacy of national law in no way mitigates breach of an international legal obligation which is undertaken by a country."

Those principles were subsequently endorsed at colloquia in Victoria Falls Zimbabwe (1994), Hong Kong (1996) and Georgetown (1997). Regionally, a gathering of superior court judges at Denarau, Nadi (1997) also recognised the concepts emanating from Bangalore. These developments clearly reflect the direction in which the tide of judicial opinion is moving. Although it is perhaps unusual to cite such pronouncements in judicial decisions, the court respectfully follows the practice of the learned Supreme Court of India in Vishaka's case supra. Both Teoh's case supra and Vishaka's case supra reflect the tenor of those principles. The court has had little hesitation in moving beyond the jurisdictions to which it has traditionally had regard (i.e. England, Australia and New Zealand), it being a truism that human rights are a universal concept.

Locally, the court has had the benefit of the decision in Epeli' Seniloli and Another v Semi Voliti Civil Appeal No. HBA0033 of 1999S. At first instance the learned Magistrate cited inter alia article 37(a) of the CRC to reinforce the rights of a fourteen year old child who had been unlawfully detained in breach of sections 25, 26 and 27 of the Constitution. Shameem J in affirming the decision endorsed the learned Magistrate's reliance on the CRC. Her Ladyship concluded that the relevant provisions of the Constitution and the Juveniles Act conformed with [sic] the CRC in relation to the rights of children in confinement.

In the court's respectful opinion, article 3 is to be read with section 4(2) of the Act to allow the Magistrate's Court to make interim custody orders on the basis that "the best interests of the child shall be a primary consideration." Broadening the ambit of section 4 is consonant with the Republic of the Fiji Island's international obligations as signified by its ratification of the CRC and by reference to sections 22 and 43(2) of the Constitution. An equally important factor is the absence of any contrary indications in section 4 of the Act as would militate against such an interpretation. Where there was an "ambiguity" construed in the widest terms a construction was to be preferred that was consistent with this country's international obligations over one that would detract from them. As an aside it need only be said that the terms of section 43(2) of the Constitution are not dependent on ratification but rather on the relevance of the convention or treaty to the rights under consideration in Chapter 4 of the Constitution.

The court therefore finds that section 4(2) of the Act includes the capacity to make interim orders. This implication arises by virtue of section 22 and 43(2) of the Constitution. Those provisions when read together import article 3 of the CRC by reference. In order to give effect to that provision section 4(2) of the Act must be construed broadly.

The first ground of appeal therefore fails for two reasons: on the basis of section 27(2) of the Magistrates' Courts Act and section 2(1)(e) of the Decree as well as of article 3 of the CRC as imported into section 4(2) of the Act by the relevant constitutional provisions.

The second ground of appeal concerns an error of law in the refusal of the learned Magistrate to grant an adjournment when requested on the first call of the summons in order for the appellant to properly present his case and call witnesses. The appellant was thereby denied a fair hearing. In reading the record of proceedings for 7 January 1999, the court notes that learned counsel for the respondent renewed an application for custody that the latter herself had made on 29 December 1998. Learned counsel for the appellant then sought an adjournment. However the respondent by her counsel reiterated her request for custody on an interim basis. The learned Magistrate agreed this was an important issue particularly given the tender age of the child. His Worship wished to hear evidence on custody. Both learned counsel then indicated their willingness to proceed in these terms:

"Shanker: Ready today

Sharma: Will call defendant and welfare"

There is no mention of the appellant or his learned counsel objecting on the basis that is now being put before the court. They must be taken to have accepted the learned Magistrate's decision because they submitted to his jurisdiction and proceeded with the hearing. This ground is with respect a trifle hollow. In any case, the welfare of the child was a primary consideration for the learned Magistrate as has been demonstrated. There was a definite need for some form of decision on custody in circumstances where the child was of a tender age and the respondent, was unlike the appellant, in a position to care for him at home. Balancing those factors against the possible injustice to the appellant in that situation, the learned Magistrate was entitled to act as he did. This ground also has no merit and must fail.

The appeal is accordingly dismissed the stay of proceedings set aside and the matter remitted to the Magistrate's Court at Tavua for continuation. Costs are summarily assessed against the appellant here and at first instance for $750.00.

Joni Madraiwiwi
PUISNE JUDGE

At Lautoka
5 May 2000