By EDDIE OSIFELO
THE Government should have established a tribunal before it imposed the curfew in Honiara from Friday -Saturday.
A prominent senior lawyer expressed this after Chief Magistrate Emma Garo discharged 58 of the 63 people arrested for breaching the two days curfew on Tuesday because there was no charge filed to the court against them by police and prosecution.
Magistrate Garo said since there was no charge filed to the court regarding the accused the court has no power to preside over their case.
She said that she is making the order as the Chief Magistrate in sending the people back, but if police and prosecution file charges to the court, their cases can be called back, because a criminal process can only be triggered when charges are filed and a magistrate’s signature on the charges.
Garo said the accused were around the court premises from 9am to 2.30pm without any charges prepared and filed.
The lawyer who wished to remain anonymous, said establishing a Tribunal is required under Section 16, subsection 8 of the National Constitution.
In subsection 8, it states that where a person is detained by virtue of a law that authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists in Solomon Islands during that period, the following provisions shall apply, that is to say –
- he shall, as soon as reasonable practicable, be furnished with a statement in writing, in a language that he understands, specifying in detail the grounds upon which he is detained;
- the announcement of his detention shall be made as soon as possible and not more than fourteen days after the commencement of his detention a notification shall be publish in the Gazette stating that he has been detained and giving particulars of the provision of law under which his detention is authorised.
- not more than one month after the commencement of his detention and thereafter during his detention at intervals of not more than six months, his case shall be reviewed by an independent and impartial tribunal established by law consisting of a Chairman appointed by the Chief Justice and two other persons appointed by the Judicial and Legal Service Commission;
- he shall be afforded reasonable facilities to consult a legal representative of his own choice who shall be permitted to make representations to the tribunal; and
- at the hearing of his case by the tribunal he shall be permitted to appear in person or by a legal representative of his own choice.
The lawyer believes this maybe the reasons why the court could not deal with the 58 people because only the Tribunal can hear their cases.
“I think the Tribunal should be established before the Prime Minister orders the curfew.
“The curfew is good to restrict people’s movement due to the coronavirus but the system needs to be put in place first,” the lawyer said.
The lawyer said when the Governor General declared the State of Public Emergency under Section 16 of the Constitution due to the threat of the pandemic; the GG gave the power to the Prime Minister to execute it.
However, the challenge is the order would affect the rights of the people which the same Constitution protects like the freedom of movement and freedom of speech.
“So the issue here is where do we strike the balance.
“I think by establishing the Tribunal can help address this situation,” the lawyer said.
Meanwhile, out of the total 63, only five have been charged.
Three pleaded not guilty to the charges while two entered guilty pleas yesterday.
However sentencing of the two accused who entered guilty pleas will be stayed awaiting the court to decide on the legal issues that was raised in court.