Justice Temo’s orders for 49 cases nullified by Acting Chief Justice

Acting Chief Justice Kamal Kumar has today declared and nullified High Court Justice Salesi Temo’s orders to the magistrates in relation to the 49 cases last week and has also ordered the magistrates not to follow Justice Temo’s orders.

In a statement, Acting Chief Justice Kumar says under Section 260 (2) of the Criminal Procedure Act 2009, Justice Temo could only exercise his discretion to review the magistrates’ decisions upon receipt of a report under the hand of the Chief Justice which requires that such action be taken.

Justice Kumar says he as Acting Chief Justice did not provide any report to Justice Temo requesting him to review the magistrates’ decisions.

He says Justice Temo did this without consulting the Acting Chief Justice Office in any respect and Justice Kumar became aware of his reviewing the subject decisions or orders when it was published in the media.

Justice Kumar says Justice Temo lacked the jurisdiction to conduct the review.

He says he has also conducted a review of all the files that were subject to Justice Temo’s judgement and identified files in which the sentence passed by the magistrates needs to be reviewed.

Last Thursday, Justice Salesi Temo had quashed and set aside fines imposed by the Magistrates Courts in Suva, Nausori, Tailevu, Vunidawa and Savusavu in 49 cases which dealt with people breaching the curfew hours or social gathering directives.

He did not decide on 2 cases as they were already on appeal.

For these cases, Justice Temo had ruled that the magistrates are to re-sentence the accused persons, after taking on board what is recorded in his judgement.

Justice Temo also quashed and set aside the 19-year-old woman’s conviction and sentence by the Suva Magistrates Court on 22nd April this year.

He has also dismissed the charge against her without recording a conviction.

While delivering his ruling, Justice Temo said the 19-year-old university student was charged for kissing and hugging her boyfriend at the Suva seawall on April 20th.

He said the woman pleaded guilty on the first call, was remorseful for her action, is a second-year university student, is living with her parents and is a member of the Suva Rotary Club.

Judge Temo said we are dealing here with a youth, a student, as a 19-year-old having a boyfriend is part and parcel of life and she is striving to better her future.

Justice Temo said this case clearly demonstrates the non-attendance to the constitutional demands of Section 11 (1) of the Bill of Rights of the 2013 Fijian Constitution.

He had said the imposition of the higher penalties brought about by the Public Health Act must be done while taking into account the obligation in Section 11 (1) of the Constitution.

The section states that every person has the right to freedom from torture of any kind, whether physical, mental or emotional and from cruel, inhumane, degrading or disproportionately severe treatment or punishment.