Attorney General, Aiyaz Sayed-Khaiyum says the ruling by Nadi Magistrate Siromi Turaga 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.
Police are in the process of looking at issues for appeal in relation to the ruling of Magistrate Turaga where he acquitted two people charged with Failure to Comply with Orders of the Public Health Act and said that the prosecution is prosecuting the accused on a non-existent law and the charge is bad in law.
Under the particulars of the charge by Police, Ravin Lal and Shalvin Chand on the 9th of April, 2020 in Nadi without lawful exercise failed to comply with orders of the Prime Minister of Fiji by breaking the curfew hours, an order that was deemed necessary for the protection of public health from an infectious disease, namely Novel Coronavirus.
In his judgement, Magistrate Turaga said the prosecution is relying on a declaration by the Prime Minister but not made by the Minister of Health pursuant to his powers set out in section (69)1 of the principal Act nor made pursuant to the Public Health [Infectious Diseases] Regulation 2020.
Magistrate Turaga further said in his view, the charge in this case is defective.
Lal and Chand had pleaded guilty to the charge.
Sayed-Khaiyum says the curfew order and other health protective directives are simple and straight-forward. He says this order was made by the Minister and Permanent Secretary for Health under the Public Health Act 12 days ago. The Attorney General says as earlier stated, orders under the Public Health Act do not need to be gazetted as long as they are made known to the public. He says nonetheless the orders were published in the Government Gazette.
Sayed-Khaiyum says the claim in the Nadi Magistrate’s ruling that the announcement by the Prime Minister dilutes the legal standing is baseless.
The Attorney General says the charges were dismissed by the Nadi Magistrate on the basis of form not substance, it was an easily correctable charge and the two men charged had also admitted to the offence.
Sayed-Khaiyum also stresses that the flawed decision by the Magistrate in Nadi in no way jeopardizes the enforceability of the government’s health protection directives.
He says these directives are saving Fijian lives everyday and those who violate them will continue to be arrested and prosecuted. Sayed-Khaiyum says regardless of who announces the directives, legal authority rests with the Minister and Permanent Secretary for Health which nobody has usurped.
The Attorney General also says 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.
Meanwhile fijivillage can confirm that the government has already gazetted Health Minister, Doctor Ifereimi Waqainabete’s order under the Public Health Act 1935 on April 4th.
On that date, Doctor Waqainabete gave notice of his order for the Lautoka lockdown with effect from March 20th,2020 which was made pursuant to section 69(1)(c) of the Public Health Act for the protection of public health, and publicly announced on March 19th any school within the Greater Lautoka Area, any business within the Greater Lautoka Area that is not an essential business and any nightclub, gym, cinema, swimming pool or fitness centre.
Doctor Waqainabete’s directive for Suva to be locked down was also gazetted on April 4th and to be in effect from April 2nd.
The directives by Permament Secretary for Health, Bernadette Welch on 14 days self isolation or self quarantine, people to stay in the Lautoka lockdown area, outsiders not to enter the lockdown area and the ban on any gathering of 20 or more people or any contact sporting engagement for the whole of Fiji was also gazetted on April 4th for the date going forward from March 20th. The same was done for the Suva lockdown area from April 3rd.
The directives for less than 20 people in restaurants, the delivery of goods, 2 metres physical distancing in the queue, the ceasing of inter-island shipping services, the curfew period, any person entering Fiji to be quarantined in a designated centre, hospital, camp or station with effect from March 28th, 2020 have also been gazetted.
Sayed-Khaiyum confirms that the government has had discussions with the Police Commissioner on how these fundamentally flawed rulings can be reviewed through an appeals process.
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