COURT DECISION FLAWED, A-G SAYS
THE CURFEW ORDER AND OUR OTHER HEALTH PROTECTION DIRECTIVES ARE SIMPLE AND STRAIGHTFORWARD. “The charges were erroneously dismissed –– not on the basis of the law’s validity –– but on the basis of how the prosecuting Police officers drafted them.”
Read Aiyaz Sayed-Khaiyum’s full address delivered yesterday
The Fijian Government has rolled out an unprecedented package of health protection directives in the interest of stomping out the spread of the coronavirus, including targeted lockdowns of high-risk areas, a nationwide curfew and certain business shutdowns. These directives are vital, they are proven to work around the world, and they are saving Fijian lives.
Nadi Magistrate Court decision
The decision by the Nadi Magistrate Court yesterday regarding the breach of the nationwide curfew is deeply flawed and –– disconcertingly –– seems to miss the substance of the matter, which pertains directly to the health and wellbeing of the Fijian people.
The curfew order and our other health protection directives are simple and straightforward. The curfew is in effect from 8pm to 5am every day.
During that window, all Fijians need to stay off the streets and refrain from travelling.
This order was made by the Minister and Permanent Secretary for Health under the Public Health Act and published in the Government Gazette 12 days ago on 4 April 2020.
As state before, orders under the Public Health Act do not need to be gazetted as long as they are made known to the public.
Nonetheless, the orders were published in the Government Gazette. We note rather disturbingly that the Magistrate in question failed to consider –– let alone refer –– to these orders, even though they were published 11 days before his ruling, and the persons were charged six days after the publication of the orders.
These orders were initially announced in nationally-broadcast press conferences by our Prime Minister.
To claim that this announcement by the Prime Minister dilutes their legal standing is baseless.
All over the world, similar health protection directives have been announced by heads of government. This is done to ensure maximum exposure and public awareness of new public initiatives in a time when the virus –– and its impact on society –– is rapidly evolving.
Even in times of calm, not crisis, it is common sense that a head of Government publicly announces major policy initiatives, even if the legal authority rests in a different ministry or department.
Curfew violation
The decision by the Nadi Magistrate Court pertained to two individuals who admitted to violating the nationwide curfew on 15 April 2020. The charges were erroneously dismissed –– not on the basis of the law’s validity –– but on the basis of how the prosecuting Police officers drafted them. This is a matter of form, not substance. No doubt the Police prosecution office could have drafted the charge more clearly, referencing the order from the Minister for Health, rather than referring to the Prime Minister. However, that charge could have easily been amended or fixed at the request of the court, as is common practice, so long as it does not in any way prejudice the interest of the accused. In the interest of justice and public health, this is clearly what should have taken place in this instance.
These two gentlemen admitted to the offence –– it defies logic that the charges were hastily dismissed by the learned magistrate on the basis of an easily-correctable charge. A number of magistrates throughout Fiji have properly applied the law and facts to similar cases.
The flawed decision from the Magistrate in Nadi in no way jeopardises the enforceability of the Fijian Government’s health protection directives.
These directives are saving Fijian lives every day, and those who violate these directives will continue to be arrested and prosecuted.
Legal authority rests with Health Minister and Permanent Secretary
Regardless of who announces these directives, legal authority rests with the Minister for Health and the Permanent Secretary for Health which nobody has usurped. Meanwhile, with the eyes of the nation on the Prime Minister for decisive leadership, any changes under the Public Health Act will be announced by him so that it reaches the widest possible audience and is given the utmost attention.
It is unfortunate the Magistrate deviated from the standard court practice of allowing the charge to be rectified, moreso given the wide publicity and the public interest in ensuring that the law and the charges made under the Public Health Act are enforced in these extraordinary times.
Any legal practitioner with even a rudimentary understanding of criminal procedure would know that, in such situations, charges can be amended rather than be dismissed in such a hasty manner. We understand this same magistrate made a similar ruling yesterday. We’ve had discussions with the Commissioner of the Police on how these fundamentally flawed rulings can be expeditiously reviewed through an appeals process.
Thank you.