THE Fiji Independent Commission Against Corruption yesterday suffered an embarrassing setback when its chief prosecutor and New Zealand lawyer Grant Tyrrell's legal status was challenged by defence lawyers in a case involving an allegedly corrupt senior police officer.
Graham Leung, who is representing businessman Abbas Ali, who is charged with alleged corruption along with former Criminal Investigations Department boss Josaia Rasiga, argued that Mr Tyrrell, a lawyer from Christchurch, did not have the proper clearance and accreditation to practice as a lawyer in a court in Fiji and described him as a 'legal stranger' in Fiji .
He submitted that:
Mr Tyrrell was not admitted to practice in Fiji under Section 38 (2) of the Legal Practitioner's Act Cap 254;
He did not get temporary admission or certificate of temporary admission as is provided under; There is provision for temporary admission for any specific cause or matter under section 39 of the Legal Practitioner's Act;
The only other way Mr Tyrrell could practice apart from the two requirements above was to get authority from the Director of Public Prosecutions appointing him as State Counsel which he also did not get.
Mr Leung further argued that the legal motion signed by Mr Tyrrell regarding his client's bail conditions was defective as it was signed by a person who had no legal standing and he was a legal stranger to the courts of Fiji.
Mr Leung said he did not doubt that Mr Tyrrell was no legal stranger to the Courts in Christchurch; 'but Christchurch is not Suva. And in Suva, Mr Tyrrell has no legal standing to appear before your Worship."
Mr Tyrrell attempted to explain his position and the constitutional argument but was asked by Magistrate Ms Prasad about the question of his legal standing.
"I did foreshadow at the very beginning that administrative steps have been taken by the interim administration," he said.
Mr Tyrrell said he could see that some questions had been raised about his legal standing to practice in Fiji.
"In response, I wish to say that I was called in by the Independent Commission Against Corruption and I have been told that administrative steps have been taken to enable me to practice in Fiji," he said.
Ms Prasad said she was, "not aware of this situation before that you don't have a practising certificate, or temporary admission to the Bar here".
To which Mr Tyrrell replied: "Ma'am, I respectfully refer you to section 2AA of the ICAC legislation - the ICAC can prosecute in its own name.
Ms Prasad said however that as far as she was concerned, she could not hear him at all in her Court.
Mr Tyrrell then stepped down to allow fellow prosecutor and police inspector Loraini Seru to take over the case.
Mr Leung also asked the court to raise questions with the High Court regarding the legality of the President Ratu Josefa Iloilo making laws such as the promulgation of the commission , as the constitution said otherwise.
Section 45 of the Constitution states that the power to make laws for the State "vests in a parliament consisting of the President, the House of Representatives and the Senate".
He asked the Magistrate to take the following questions on law to the High Court under section 120(4) of the Constitution. That provision states that once an issue of constitutional interpretation is raised involving "a substantial question of law, the presiding member of the court must refer the question to the High Court. :
Does the President have legislative authority under section 85 of the constitution of Fiji;
"Is the Fiji Independent Commission Promulgation a lawful enactment?"
Did the President of Fiji have constitutional authority to enact Promulgation 11 of 2007 (regarding the promulgation of FICAC);
Is Promulgation No. 11 of 2007 ultra vires the Constitution of Fiji;
Is section 45 of the Constitution of Fiji operative;
Assuming Promulgation 11 of 2007 was determined by the Courts under the doctrine of necessity to have been validly enacted, is that Promulgation within the parameters of principles referred to in Madzimbamuto v Lardnerbruke (1969) in which Lord Pearce said at Page 732
"I did foreshadow at the very beginning that administrative steps have been taken by the interim administration," he said.
Mr Tyrrell said he could see that some questions had been raised about his legal standing to practice in Fiji.
"In response, I wish to say that I was called in by the Independent Commission Against Corruption and I have been told that administrative steps have been taken to enable me to practice in Fiji," he said.
Ms Prasad said she was "not aware of this situation before that you don't have a practising certificate, or temporary admission to the Bar here".
Mr Tyrrell replied: "Ma'am, I respectfully refer you to section 2AA of the ICAC legislation the ICAC can prosecute in its own name."
Ms Prasad said however that as far as she was concerned, she could not hear him at all in her court.
Mr Tyrrell then stepped down to allow fellow prosecutor and police inspector Loraini Seru to take over the case.
Ms Prasad is expected to rule on the legal status of Mr Tyrrell tomorrow afternoon and she will decide on the constitutional matters later.
