Fiji govt at odds with magistrate over Covid-19 curfew ruling

Fiji's government says a ruling by a magistrate challenging the Prime Minister's powers to order the arrests of anyone breaching the Covid-19 nationwide curfew is flawed.

On Wednesday, the Nadi magistrate acquitted three people charged with breaching curfew and ruled the Public Health Act only gave powers to the Health Minister and not the Prime Minister.

But Attorney-General Aiyaz Saiyed Khaiyum said he believed the ruling was incorrect.

"All over the world, similar health protection directives have been announced by heads of government," he said.

"Even in times of calm, not crisis, it is common sense that a head of government publicly announces major policy initiatives, even if the legal authority rests in a different ministry or department."

Mr Khaiyum said his office had discussed with the Commissioner of Police on how the rulings could be expeditiously reviewed.

He also said orders under the act did not need to be gazetted as long as they were made public.

Mr Khaiyum claimed the magistrate missed the substance of the matter and he was disturbed the court did not consider nor refer to the gazette which published the orders 11 days before the ruling.

Two of the accused were charged with failing to comply with the orders of the Prime Minister by breaching curfew, while the third person was charged with disobedience relating to the Crimes Act.

But in his ruling, the magistrate said the prosecution had relied on a declaration by the Prime Minister and not the Health Minister as set out in the Public Health Act.

The magistrate said the pair was prosecuted on a non-existent law.

On the third accused, the magistrate ruled the act vested no powers to the Prime Minister so any decision emanating from the directive was unlawful and void.

But Mr Khaiyum said believed the charges were "erroneously dismissed - not on the basis of the law's validity - but on the basis of how the prosecuting police officers drafted them."

This is a matter of form, not substance, he said.

"No doubt the police prosecution office could have drafted the charge more clearly, referencing the order from the Minister for Health, rather than referring to the Prime Minister.

"However, that charge could have easily been amended or fixed at the request of the court, as is common practice, so long as it does not in any way prejudice the interest of the accused. In the interest of justice and public health, this is clearly what should have taken place in this instance."

Mr Khaiyum said a number of magistrates throughout Fiji had "applied the law and facts to similar cases".

He said the decision from the magistrate in Nadi "in no way jeopardises the enforceability of the Fijian Government's health protection directives.

"These directives are saving Fijian lives every day, and those who violate these directives will continue to be arrested and prosecuted."

The Attorney-General said any changes under the Public Health Act would be announced by the Prime Minister so that it "reaches the widest possible audience and is given the utmost attention.

"It is unfortunate the Magistrate deviated from the standard court practice of allowing the charge to be rectified, moreso given the wide publicity and the public interest in ensuring that the law and the charges made under the Public Health Act are enforced in these extraordinary times.

"Any legal practitioner with even a rudimentary understanding of criminal procedure would know that, in such situations, charges can be amended rather than be dismissed in such a hasty manner," Mr Khaiyum added.