Pandemic law – A whole drama series

Acting Chief Justice Kamal Kishore Kumar, left, overturned a ruling by High Court judge Justice Salesi Temo. Picture: FILE/Graphics: SACHIDA SINGH

If like me you belong to Generation X, these are challenging days. If the coronavirus doesn’t kill you, the stress of new technology will.

Take Netflix, for example. Netflix delivers to your home screen more new movies than you could possibly watch.

You settle down to watch a movie. Then you realise — too late — that it’s actually a series.  It’s got seasons and episodes. They go for hours.

And they’re still making more episodes, so you can’t even get to the end.

A particularly bad movie, Fiji and the Law of Pandemics, is a bit like that. There’s still no end in sight.

A few weeks ago, I wrote a column headlined pandemics and legal drama. I said it was important, even in the middle of a health crisis, for the Government to get the law right.

If you are going to restrict people’s movements, you need to write down the law clearly, and make sure everyone knows the rules.

The Government, I suggested, had made a poor job of that. It had not done the simple work to write its law down early in the crisis, or clearly.

This is important in a health crisis, when the rules are changing all the time – a new lockdown here, curfew hours changing there. Not everyone is watching the Prime Minister’s press conferences.

It’s all a bit much

At first, people applauded when the police charged around arresting and detaining people. They were all bad people who had broken the law. They deserved to be punished.  It’s never that simple.

No doubt some people have been careless, defiant or plain stupid. But sometimes the law changed and people didn’t know.   Others found themselves in different and possibly difficult human situations.

Many people dismiss constitutional rights as a waste of time, invented by lawyers to make money. But those rights apply to these human situations. It’s why we call them “human rights”.

Now, the police detain teenagers for playing touch rugby and soccer (or for sitting with their boyfriends at a seawall). And the public appear to be getting a bit tired of all this heavy-handedness.

Especially when on the news you see political leaders shaking hands and posing for photos with other people. How seriously are they taking the coronavirus?

I was puzzled at a funeral the other day. Police officers rigidly enforced the “20 persons only” rule inside a funeral hall. So people sat in two rows of seating with no social distancing, while the rest of the hall was empty.

But dozens of people milled around outside, shaking hands, standing together and engaging in animated conversations — and this didn’t seem to be a problem.

Do the authorities know what the rules are there for?

Where we left off

But back to the legal drama. In the last episode:

  • Magistrate Siromi Turaga had acquitted three people in two separate court cases. This was for the simple reason that, even though they had pleaded guilty, he considered that the crime they were accused of in their charge didn’t actually exist.
  • The Attorney-General had called a press conference the following day to criticise one of the decisions as “flawed”. Then, a few hours later, acting Chief Justice Kamal Kumar issued a statement to say that a High Court judge had “reviewed” ” the magistrate’s decision. So that particular court case was back on.

The law gives the power of review  to the High Court. Basically, a judge has the power to quickly change a magistrate’s decision if he or she feels that the magistrate has gotten things seriously wrong.  This is different from an appeal.

No more Magistrate Turaga

Then we read about Magistrate Turaga, in that esteemed news media organ, the Fiji Sun.  Apparently he was no longer to be a magistrate. Why? “His contract came up for renewal so it wasn’t renewed, on the basis of the information we have,” acting CJ Kumar told the Fiji Sun.

What “information” was this? Because, the magistrate told the Fiji Sun,  two months ago he had been told he was doing a good job.  So good, in fact, that he was going to become a Master of the High Court.

Lawyers’ gossip groups buzzed with this news (great gossipers, lawyers). But unknown to most of them, other things were happening.

Justice Temo goes to work 

Justice Sailosi Temo had called in a lawyer from the DPP’s office and one from the Legal Aid Commission. He had a stack of court files – 51 in all. “Right,” he said (well, I am guessing he said something like this) – “we’re going to start at the first file and go through to the finish”.

On May 14, at the end of that process (the court record says it took eight days) Justice Temo issued a ruling. He too had exercised the power to review.

He overturned one conviction. He also threw out 48 of the sentences imposed by the magistrates on other coronavirus rule-breakers. He ordered the magistrates to look at the sentences again.

Why? Because, he said, the sentences were too harsh. They breached people’s constitutional rights.

People have the right under the Constitution (section 11) not to be treated harshly or disproportionately by the law.

Justice Temo pointed out that some of the people fined — hundreds or even thousands of dollars — had few sources of income and families to support. They could not afford it.  “Other sentencing options,” he said, “were not explored”.

Justice Temo set out the other options available to magistrates.  They could order suspended jail sentences. They could order community work. They did not have to record a conviction at all.

So, he more or less told the magistrates, “look at all of these cases again”.

Perhaps it’s my imagination (because on this I am of rather the same mind as Justice Temo) but the judgment seems to have struck a popular chord.

The public seems a little bit tired of heavy-handed police action and heavy fines imposed on people already suffering under a pandemic-driven economic crash.

But wait! (as they say in that TV ad where they promise you free steak knives). There’s more!

Justice Kumar responds

Four days later, on 18 May the acting Chief Justice issued his own ruling. Justice Temo’s revisions were all wrong, he said. Justice Temo couldn’t revise anything unless he, the Chief Justice, had first made a report.

So, Justice Kumar said, Justice Temo’s decision was a “nullity”.  Which would put all the magistrates’ courts judgments reviewed  by Justice Temo back to where they were before.

What is not clear to me from his nine-page ruling, with all respect to the acting Chief Justice, is what law he is relying on to countermand Justice Temo.

It’s one thing for a judge to review  a magistrate’s decision. But nowhere can I see how a judge – even the Chief Justice – can review  another High Court judge’s decision.

Were Justice Temo’s orders wrong, as Justice Kumar says? That’s a matter for argument.  I don’t think they were wrong – others disagree (or are still thinking about it).

But ordinarily a High Court judge’s decision can only be overturned on appeal to the Fiji Court of Appeal.

The saga won’t end here

Fiji Law Society president Laurel Vaurasi raised a valid point in The Fiji Times earlier this week. Justice Kumar’s decision, she said, had caused confusion.

Imagine you are one of the people affected by the magistrates’ decisions. What now? Will you be sentenced again? Or not? Is your conviction overturned? Or not?

It seems that the Law Society – and perhaps others – will be challenging Justice Kumar’s ruling. This will leave another High Court judge in the difficult position of having to decide whether the acting Chief Justice had the legal power to do what he did.

And this all has a potentially corrosive effect on confidence in the law.

Most of us want to be able to go about every day doing the things we do, knowing that, even if the law isn’t certain all the time, at least the legal system is clear to us.

And after all this judicial back-and-forth, it really is not clear to many of us how the system is working.

Maybe we’ll just have to wait for the first episode of the next season.

  •  Richard Naidu is a Suva lawyer whose law firm works for The Fiji Times.  He is also representing some of the people prosecuted under coronavirus laws. The views in this article are not necessarily the views of this newspaper.

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