Taito Rarasea v. State

Criminal Appeal No HAA0027.2000, unreported; (2000) 3 CHRLD 126
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R was sentenced to six months’ imprisonment by the Chief Magistrate for the offence of escaping from lawful custody contrary to s 138 of the Penal Code Cap 17. In addition the Commissioner of Prisons imposed sanctions on R for the escape under the Prisons Act Cap 86, ss 83(1)A(i) and (vi) and paras 123(3) and 114 of the Prison Regulations. These sanctions reduced both the remission period R was entitled to by one month and seven days pursuant to s 83(1)A(i) and his rations for two weeks pursuant to s 83(1)A(vi), together with adding the 66 days he was at large to his sentence pursuant to paras 123(3) and 114.

R appealed on the basis that, inter alia, he was being punished twice for the same offence constituting double jeopardy. Section 28(1)(k) of the Constitution provides that every person has the right not to be tried for an offence of which he or she has previously been convicted or acquitted. Further, s 25(1) of the Constitution provides that every person has a right inter alia to freedom from disproportionately severe treatment or punishment or cruel, inhumane and degrading treatment.

 

[Adapted from INTERIGHTS summary, with permission]

In setting aside the Commissioner's punishment, it was held that:

  • Constitutional provisions must be interpreted broadly and purposively (dicta of Mudholker J in Sakal Papers (P) Ltd v Union of India & Ors (1962) AIR 305, 311 adopted). In this context any treatment or punishment that impinges upon the inherent dignity of the individual will contravene s 25. This protection is further reinforced by reading s 25 in conjunction with Art 10(1) of the International Covenant on Civil and Political Rights (as permitted by s 43(2) of the Constitution) to the effect that all persons in custody should be treated humanely and with dignity. This obligation includes the duty to provide sanctions for infractions of prison rules that have due regard to the dignity of the person.
  • In addition, Art 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which has also been ratified by Fiji, recognizes the right of everyone to adequate food [Editor's note - this is what appears in the original judgment but at the time of the judgment, Fiji had yet to ratify the ICESCR.] The reduction in rations meted out to R was not consonant with Art 11(1) and, whilst ratification does not create a mandatory obligation, the Commissioner's actions were contrary to the spirit of the ICESCR as outlawing the use of food as a means of control.
  • Furthermore, it is difficult to reconcile the reduction of rations with the respect for human dignity proclaimed by the preamble to the Constitution. Food is a basic necessity for daily sustenance. To reduce rations as a form of punishment is in principle an offensive concept. The amount is unimportant. The very idea that the state would use a necessity of life to punish proscribed behaviour and thereby devalue prisoners' lives is intrinsically unacceptable. Therefore section 83(1)A(vi) of the Act contravenes s 25(1) by amounting to degrading and inhuman treatment and is accordingly declared null and void.
  • Following R's sentencing of 6 months imprisonment by the Court he was tried again by the Commissioner and subjected to further punishment under the Act and Regulations. This clearly breached s 28(1)(k) of the Constitution by amounting to double punishment for the same offence of escaping from lawful custody. It therefore follows that sections 83(1)A(I) and (vi) where they are additional to any sentence imposed by a court are ultra vires and the Commissioner may not apply them.
  • Further the Commissioner has no power to impose an extra 66 days imprisonment to R's sentence and the very thought of him having such power is breathtaking in its implications. It would give an administrative body the authority to incarcerate persons without any reference to a judicial body. Therefore whilst the 6 months consecutive sentence imposed by the Magistrates Court is upheld, the punishments imposed by the Commissioner are set aside.

 

[Adapted from INTERIGHTS summary, with permission]

"Food is a basic necessity for daily sustenance. To reduce prison rations as a form of punishment is a concept that is offensive in principle. Not only may it affect a person's capacity to survive but it deprives him/her of a portion of rations that are at best adequate. The amount of reduction is not of any importance. The very idea that the state would employ such means is intrinsically unacceptable for the reason that it uses what is a necessity of life as a means to punish proscribed behaviour. This devalues persons such as the appellant because it assumes their status as prisoners justifies such sanctions. The short answer to that proposition is that they are no less human for being incarcerated with an entitlement to an inherent dignity no bars or walls can violate. The rationale for such treatment harks back to a time when prisoners were not considered deserving of much consideration as human beings. The court is respectfully of opinion that section 83(l) A(vi) of the Act contravenes section 25(1) of the Constitution as amounting to degrading and inhumane treatment and is null and void."

Lawyers:For the Appellant: the appellant in person. For the Respondent: A Saiyad Khaiyum

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