The University of Fiji has warned that introducing a mandatory no-bail period for serious drug offences could conflict with constitutional protections and judicial discretion.
During consultations on the Counter Narcotics Bill, it was proposed that persons charged with serious drug offences be denied bail for a fixed period, for example up to four months, to allow for complex investigations; the rationale advanced is that the organised and transnational nature of the drug trade justifies prolonged custody before bail may even be applied for.
While giving its submission on the Bill, the University highlights that the Constitution protects Section 9, Right to Personal Liberty; Section 13, Rights of Arrested and Detained Persons; and Section 14, Rights of Accused Persons.
It says that pre-trial detention is permissible, but it must not be arbitrary or punitive.
It says a blanket rule preventing bail applications for a fixed period would significantly restrict liberty and remove judicial discretion.
UniFiji says such a provision would likely face constitutional scrutiny because it undermines the presumption of innocence, restricts prompt judicial oversight, imposes automatic detention without individualised assessment, and may amount to disproportionate interference with liberty.
It says that under the Bail Act 2002, Section 3 establishes a presumption in favour of bail.
It stresses that bail must be granted unless it is not in the interests of justice, with the primary consideration being the likelihood of the accused appearing in court.
It says that even where the presumption is displaced, courts retain discretion and must assess each case individually, adding that the Act therefore builds on judicial oversight, not offence-based automatic detention.
UniFiji highlights that, comparing Commonwealth practice, in Australia and New Zealand serious drug offences may attract stricter bail tests, such as reverse onus or “show cause” requirements.
It says courts consider risks including flight, reoffending and interference with evidence, but judicial discretion is preserved, adding that neither jurisdiction generally imposes a fixed period during which an accused is prohibited from applying for bail, even in serious trafficking matters.
The University says constitutionally safer alternatives exist if Parliament’s concern is investigative complexity in serious trafficking cases, including reverse evidential burdens for commercial quantities, enhanced bail conditions such as passport surrender, reporting and electronic monitoring, asset freezing orders, expedited remand reviews, and stronger investigative and intelligence capacity.
UniFiji says it does not support a mandatory no-bail period for drug offences.
It says that while serious trafficking presents real investigative challenges, any reform must remain consistent with constitutional protections of liberty and fair trial, the presumption framework under the Bail Act 2002, and comparable Commonwealth practice preserving judicial discretion.
It recommends strengthening bail conditions and investigative tools where necessary, rather than introducing automatic detention rules that may be constitutionally vulnerable.
