IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0191 OF 2003

BETWEEN:

NAIRESH KUMAR
(son of Jai Ram)
Plaintiff

AND:

THE FIJI MILITARY FORCES AND
THE COMMANDER OF THE FIJI MILITARY FORCES
First Defendant

THE FIJI POLICE FORCE AND THE COMMISSIONER OF POLICE
Second Defendant

TIMOCI SILATOLU and GEORGE SPEIGHT
Third Defendant

ATTORNEY-GENERAL OF FIJI
Fourth Defendant

THE REPUBLIC OF FIJI
Fifth Defendant

Counsel: Mr. Mishra Prakash – for Plaintiff
Ms A. Rokomokoti – for 1st Defendant
Mr. Banuve – for 2nd, 4th & 5th Defendants
Mr. S. Inoke – for 3rd Defendant

Date of Hearing: 24th November, 2005
Date of Ruling: 27th January, 2006

RULING

Background

The third defendant Timoci Silatolu together with George Speight and others participated in the takeover of Parliament during the May 2000 Coup. They are now co-defendants with the Commander of the Fiji Military Forces, the Commissioner of the Fiji Police Force, the Attorney-General of Fiji and the Republic in proceedings bought by those kept hostage or harmed.

It is alleged in the proceedings that Mr. Silatolu acted as trainer and leader of a group of soldiers who assisted in the coup and directed the hostage taking. It is pleaded that he did so with the co-operation of the Army.

The Army’s defence is a denial that the coup and hostage taking was carried out by soldiers. Rather it is pleaded that men acting outside the terms of their military engagement and lawful duties were responsible.

For the purposes of this ruling the salient issues may be summarized as who trained the soldiers, who ordered the soldiers to takeover Parliament and who led them. 

The trial proper will commence in May. This is an application by Mr. Silatolu one of the third defendants seeking discovery of the findings and records of a certain Board of Inquiry set up by the Fiji Military Forces and conducted between the 21st of August 2000 and the 24th of October 2000.

The Board of Inquiry had as its dominant purpose a robust investigation into the involvement of the Army’s first Fiji Meridian Squadron in the coup. 

The Board of Inquiry was carried out under the RFMF Act, Cap. 81 and its co-related provisions the UK Army Act 1955, UK Queen’s Regulations and Board of Inquiry Rules. The covering order was attached to an affidavit of Col. Iowane Naivalurua dated the 23rd June, 2003.

Discovery

The High Court Rules for Discovery are contained under Order 24.

That Order describes a scheme of discovery where after the close of pleadings in an action begun by writ parties must disclose a list of documents relevant to the proceedings which are or have been their possession, custody or power.

The pleadings in this action are not closed. In that sense the application by this third defendant against the first defendant is a little premature. However this judgment is not going to deal with the substantive application merely a preliminary point of whether or not I should privately inspect the subject documents. I am satisfied that the plaintiff’s case against the third defendant is sufficiently certain and the defendants responses sufficiently clear to enable me to deal with this matter. It is accordingly convenient and timely that I dispose of this preliminary issue now.

Order 24 also contemplates that any defendant is entitled to a copy of a co-defendant’s list of documents [(Order 24.6)]. For that reason I am satisfied that the extent of Order 24 is wide enough to cover this application as between defendants even in circumstances where indemnity as between them has not been sought by way of a cross party or third party notice procedure.

The question which I am called to answer is whether or not I should be free to inspect the subject documents in the course of the substantive discovery application.

Decision

Having read the affidavit by Col. Naivalurua filed on the 25th of June, 2003 (affidavit para.14) and the attached convening order for the Board of Inquiry I am satisfied that the documents would doubtless contain statements by civilian and military witnesses about the takeover of Parliament on the 19th of May and the detention and treatment of plaintiffs which could fairly lead Mr. Silatolu to a train of enquiry which may advance his case or damage that of any other party (Compagnie Financierdu Pacifique –v- Peruvian Guano Co. [1882] 11 QBD 55 per Esha MR pages 62,63.

I am satisfied that the production of the documents sought appears to be warranted as they are relevant to the issues earlier summarized in this decision.

In addition on this preliminary issue Order 24 Rules 8 and 13 make it clear that discovery should be ordered where it is necessary for disposing fairly of the cause or matter. I am satisfied that this is not a fishing exercise but a genuine attempt to secure the inspection of relevant and otherwise discoverable material (cf also Air Canada v Secretary of State for Trade 1983] 2 AC 394).

That being so the onus is then on the first defendant to show why these documents should not be discoverable and also why I should not inspect them.

The Army by its Minister have claimed public interest immunity as the documents if produced could effect national security.

I apprehend that the highest the first defendant’s case can go in opposition to both my inspection of the documents and their ultimate production is best described from their prime case Balfour v The Commonwealth and Foreign Office [1994] 2 ALL ER 588 at 596.

“national security is the responsibility of the executive government; what action is needed to protect its interests is, the cases cited by my noble and learned friend Lord Roskill establish and common self itself dictates, a matter on which those on whom the responsibility rests, and not the courts of justice, must have the last word. It is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problems it involves”.

“…There must always be vigilance by the courts to ensure that public interest immunity of whatever kind is raised only in appropriate circumstances and with appropriate particularity, but once there is an actual or potential risk to national security demonstrated by an appropriate certificate the court should not exercise its right to inspect. We recognize the importance of this case to the appellant, but in our judgment the uninhibited prosecution of his claim for unfair dismissal cannot prevail. We do not accept, as counsel submitted we should, that in such a situation a defendant should abandon his defence just as the Crown will abandon a prosecution where there exists a risk of the innocent being convicted.”

The first defendant relies on two affidavits to make their case. 

The affidavit of the CEO which says in paragraph 6.2:

“the document contains very important information relating to matters that affect the very core and fabric of the military institution. It relates to the structural and operational mechanisms of the Republic of Fiji Military Forces. It contains critical information concerning the RFMF, its capabilities, its strengths and weaknesses which if disclosed will be injurious to the public interest. The document is a comprehensive report. The inquiry is one that is wholly internal or rather a domestic investigation. The document contains information relating to the takeover of Parliament and related incidents, the emphasis of the document is on certain organizational structure and the framework of the military institution, its methodical set-up and recommendations made accordingly. The matters contained in this document could have an adverse effect on national security and national interest if disclosed. And further to disclose it will affect the proper functioning of the military institution”.

“………that the 19th May 2000 incident of the takeover of Parliament is one incident that affected the stability and internal security of the whole of Fiji and the information contained in the document is one that could again possibly initiate serious threats to stability and national security of the country if disclosed”.

And again by reliance on the affidavit of Lt. Col. Dr. Lesi Korovavala: 

“…the board of Inquiry Report contains information unique to the RFMF as an institution, in its role in Fiji as illustrated in the events of 2000 and as an integral part of the United Nations (UN) Peacekeeping operations evident in the current involvement of the Forces in operations in various parts of the world under UN auspices from 1979 to date”.

“…the BOI identified weaknesses that may have lead to the internal rebellion of 2000, and made recommendations for the improvement of the military as an institution and specifically how the weaknesses identified could be addressed and also preserve good order, maintain discipline and safeguard intelligence. This information can be used to be detriment of the Forces if it falls into the hands of adversaries since it relates to the disposition of forces in terms of operational procedures (including weapon and ammunition holdings, formation tactics, and strategies for deployment both in peace and in war…”

The first defendant in opposition criticizes the lack of particularity in the affidavits counsel draws an analogy between the affidavits in this case and those filed in Sankey v Whitlam and Others [1978] 53 ALJR 11; 21; 24; 29G; 31-32. The court said at page 23:

“Although an affidavit sworn by a Minister or departmental head is no longer conclusive, it appears to be to be still highly desirable that the person who swears the affidavit should himself have been the documents in question. Where the claim is that it would be contrary to the public interest to publish the contents of a particular documents, it is obviously essential that the person asserting the claim should himself have been the documents in question. Even where the claim is that the document belongs to a class which should be withheld, the court is still required to give proper respect to the assertion by the Minister or the departmental head that production would be contrary to the public interest, and the weight that would be given to an affidavit making an assertion of this kind would necessarily be reduced if the person swearing it had not himself seen the document”.

Counsel points out that the filing of the Minister’s certificate without a supporting affidavit from him is insufficient. Counsel submits that the certificate must therefore be seen as an unsworn statement of opinion. He notes and I accept that it does not comply with the rules of evidence and the principles detailed in both the Duncan v Cammell Laird & Company Ltd [1942] 1 AER 588 and Sankey (supra) cases (Duncan at 589A, Sankey at 82 B-F).

The Minister’s statement is based on the advice of his CEO. There is little direct evidence that the CEO has read all the documents. Further, the CEO does not provide any basis for a proper qualification of his opinions. Accordingly counsel criticizes this witness’s ability to claim public interest, immunity or State privilege for essentially military documents.

I respectfully adopt the reasoning of their Lordships in the Conway v Rimmer (supra) decision. Lord Morris at page 971 D-E to 972A said:

“I see no difference in principle between the consideration of what have been called the contents cases and the class cases. The principle which the courts will follow is that relevant documents normally liable to production will be withheld if the public interest requires that they should be withheld. In many cases it will be plain that documents are within a class of documents which by their very nature ought not to be disclosed. Indeed, in the majority of cases I apprehend that a decision as to an objection will present no difficulty. The cases of difficulty will be those in which it will appear that if there is non-disclosure some injustice may result and that if there is disclosure the public interest may to some extent be affected prejudicially. The courts can and will recognize that a view honestly put forward by a Minister as to the public interest will be based upon special knowledge and will be put forward by one who is charged with a special responsibility…But where there is more than one aspect of the public interest to be considered it seems to be that a court, in reference to litigation pending before it, will be in the best position to decide where the weight of public interest predominates. I am convinced that the courts, with the independence which is their strength, can safely be entrusted with the duty of weighing all aspects of public interests and of private interests and of giving protection where it is found to be due”.

In circumstances where State privilege is claimed, the judge, if he feels any doubt about the reasons advanced for either the class description of the documents or the validity of the contents claim has only one proper course open, that is, to call for the documents production for his private inspection and thereafter ruling on the substantive production application. 

Various cases have come to the conclusion that if a Minister’s certificate is not conclusive then the court has the power to privately examine the documents in question. (see for example the High Court of Australia decision in Sankey v Whitlam and Others [1978] 53 ALJR 11; 21; 24; 29G;31-32 and the Privy Council decision in Robinson v The State of South Australia (No. 2) [1931] AC 704.

The affidavits filed in support of the claim for State privilege are made not by the relevant Minister but by the President of the Board of Inquiry and the Chief Executive Officer of the relevant department. There is no explanation as to why the Minister was not in a position to swear an affidavit in support of his certificate. The certificate in large measure repeats the content of the CEO’s affidavit.

It is, of course, acceptable that the head of a department submit an affidavit where the Minister himself is not available to give a statement (Sankey at page 23). However, where clearly the Minister is available it is he as head of the responsible executive arm of the Government who should depose to the matters he believes go to support the certificate attached in his sworn testimony.

The certificate says that the Minister has read the documents. However, that is a mere statement. It is not sworn testimony. The affidavits are not clear that the CEO has read the documents in question or indeed that he knows that the Minister has read them.

Clearly the president of the inquiry would have knowledge of the documents. However, he only claims that all the proceedings were held in “private” a claim which on the authorities does not establish State privilege.

These objections when taken with my earlier comments based on the criticisms in Sankey lead me inevitably to the conclusion that the claim for public interest immunity and State privilege cannot be made out without my private review of these documents.

In this case I am satisfied that the documents are relevant. The only issue being whether or not the documents should be produced. I have doubts about the national security claims made in respect of both the class and contents of these documents and I feel it is proper for me to call for their production. I am satisfied that the only way in which the court can properly reach a just decision on the matter is by a private inspection of them.

Accordingly I order that the original documents be delivered to my chambers in a secure sealed envelope for photocopying in the presence of Counsel for the RFMF, the Civil Court Registrar and his nominated clerk. The photocopy is then to be certified by counsel as a true and correct copy. The original documents are to be returned by counsel to her clients. The certified copy is to be placed in a sealed envelope and delivered to me by the Civil Court Registrar. The documents are to be treated at all times as confidential and available only for my private inspection. They are not to be placed on the court file but will be separately secured. If I do not ultimately order production then the certified copy is to be returned to the first defendant in a sealed and secure envelope for safe keeping until further order.

Costs are reserved.

Gerard Winter
JUDGE

At Suva
27th January, 2006