NEWS

High Court Jurisdiction Questioned In Karunaratne Case

A ruling on whether the High Court has jurisdiction to hear the constitutional redress application and grant permanent stay of proceedings in the case of businessman Jagath Karunaratne will be made
31 Oct 2015 11:25
High Court Jurisdiction Questioned In Karunaratne Case

A ruling on whether the High Court has jurisdiction to hear the constitutional redress application and grant permanent stay of proceedings in the case of businessman Jagath Karunaratne will be made next week.

Karunaratne is charged with SODELPA MP Mosese Bulitavu for allegedly writing seditious comments against the Government in various places in 2011.

It is alleged that on August 1-27, 2011 the two accused did an act namely the spray- painting of words in different places between Nausori and Suva with the seditious intention of bringing into hatred or contempt, or to excite disaffection against the Government of Fiji as by law established. This trial is before the Suva Magistrates Court.

However Karunaratne’s lawyer Aman Ravindra Singh filed a motion and affidavit last month in the High Court whereby he argued that his client’s charge was not correct and that there were constitutional issues that needed to be addressed.

The case was called for hearing before High Court judge Justice Paul Madigan yesterday afternoon where both parties, the State and the Defence raised their concerns.

Mr Singh argued that there was no government ‘as by law established,’ hence his client’s sedition charge is inappropriate.

Justice Madigan said there was an interim government when the alleged incident took place.

Mr Singh agreed that there was an interim government however it was not ‘as by law established.’

He said that when the previous constitutions were abrogated, there was no law from which the interim government was appointed.

He said President Ratu Josefa Iloilo abrogated the constitution and appointed Voreqe Bainimarama as Prime Minister but the President did not have the power to do so.

He said the President filled the vacuum, took over and made the appointment.

He said since the constitution was abrogated there was no law, hence the government was not established by law, and committing sedition against them was not an offence.

State prosecutor Lisiate Fotofili argued that on April 10, 2009, President Ratu Josefa made directive that decisions made shall be regarded as law forthwith hence it is an offence to write seditious comments about the government of the day.

He said the President, being the Head of State, exercised his right in an official capacity and appointed the interim government hence the government was as by law established.

He said if a person was in office, the directives by him are made in an official capacity.

He said the right procedure for defence was to make an application on no case to answer after the end of trial where he can raise the issue.

He also said that permanent stay of proceedings can be sought when there is a delay in the magistrate’s court or when there is abuse of process.

Mr Fotofili said if his application did not succeed on no case to answer, he could appeal the decision.

He cited a 2013 Supreme Court ruling which stated that there was a government in place although there was no parliament.

Justice Madigan asked Mr Singh as to whether he made an application to amend the charge in Magistrates Court and have the words ‘as by law established,’ removed.

Mr Singh said then it would be inappropriate because the crimes decree has those words in place in section 66 (1)(i).

The section reads; “…a seditious intention is an intention; to bring into hatred or contempt or to excite disaffection against the Government of Fiji as by law established…”

He said the charge is an abusive process because it was not made out and they were seeking High Court’s interpretation of the charge as to whether the government (the interim government) was established by law.

He said if the permanent stay of proceedings is accepted and a constitutional redress succeeds than his clients charge does not stay otherwise it continues.

Justice Madigan will deliver his ruling on the above application on Wednesday.

Feedback:  farisha.ahmed@fijisun.com.fj

 

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