Lawyer: Act Section ‘Invalid’

Alawyer for Sun Insurance Company has submitted in the High Court in Suva that Section 31 (1) of the Accident Compensation Act 2017 is constitutionally invalid.

Queen’s Counsel (QC) Julian Moti said on Monday the Insurance company was seeking a court ruling that the section was unconstitutional because it violated the requirements of Section 27 of the 2013 Fiji Constitution.

Section 31 (1) of the Act repealed The Motor Vehicles (Third Party Insurance) Act 1948 and the Motor Vehicles (Third Party Insurance) Regulations 1949.

Section 27 of the Constitution states that every person has the right not to be deprived of property by the State other than in accordance with a written law referred to in subsection (2), and no law may permit arbitrary acquisition or expropriation of any interest in any property.

Mr Moti said since there was an inconsistency with Section 31 and it would require the order of the court to redress the contravention.

He said his client’s position was that they were deprived because of the repeal of the compulsory Third Party (CTP) insurance business. However, Mr Moti submitted, Section 27 did not assign a special or specific meaning to the word property in its text, but that it was neither exhausted nor restricted. He said there was no need to import the circumscribed meaning of “possession” from the European convention to dictate the meaning of property in the Fijian Constitution.

He said the State was allowed to take away the CTP business by legislating it to acquire it under the conditions specified in the legislation.

Mr Moti said the business was more than just income and policies. He said the Court had powers under Section 44 (3) of the Constitution to make orders it deemed appropriate.

Mr Moti proposed that as a remedy the Insurance company was seeking an award for vindicatory or compensatory damages.

On the issue of commencement date of the Act, Mr Moti said by virtue of Section 49 (2) of the Constitution, the operative date of the “contravention” was January 1, 2018, which was determined by the Minister.

He submitted that it was also the date of commencement of the 60day time frame. Solicitor-General Sharvada Sharma contends that the 60-day time frame started on July 14, 2017, the date when the Act was enacted.

Justice David Alfred will deliver his judgment on notice on the summons to strike out the Sun Insurance motion.