Suva lawyer Richard Naidu is a free man after the Suva High Court ruled this week that no conviction be recorded against him.

High Court judge Justice Daniel Goundar ruled on Tuesday that the charge of contempt scandalising the court against Naidu be dismissed.

He said summons to set aside the judgment that had found Naidu guilty in November last year was by consent and was dismissed as he did not have jurisdiction.

Justice Gounder ordered the parties to bear their own costs.

While delivering his judgment, Justice Gounder said while mitigation and sentencing were pending, a new government had come into power and a new Attorney-General had been appointed.

He said that after the change of government [FijiFirst lost the general election last December], Justice Jude Nanayakkara, who had been previously presiding over the case, had resigned as a Fiji judge and left the jurisdiction without concluding proceedings.

Justice Gounder said the new Attorney-General, Siromi Turaga had taken a different position regarding the proceedings, which he had expressed in an affidavit filed in support of the summons to dismiss the proceedings.

Ruling set aside
Turaga stated that his view was that the proceedings should never have been instituted against Naidu in the first place.

In the affidavit, Turaga said he had conveyed to Naidu that his view was that the ruling of 22 November 2022 ought to be set aside and the proceedings dismissed.

He added that Naidu had confirmed he would not seek to recover any costs he had incurred in defending the proceedings.

Justice Gounder said the Attorney-General played an important function as the guardian of public interest in contempt proceedings which alleged conduct scandalising the court.

Lawyer Richard Naidu’s conviction ruled not to be recorded and the charge of contempt dismissed. Video: Fijivillage.com

He said the position of the Attorney-General had shifted and he was not seeking an order of committal against Naidu.

The judge said Turaga dkid not support the findings that Naidu was guilty of contempt scandalising the court.

He said it had not been suggested that the present Attorney-General was acting unfairly as the representative of public interest in consenting to an order setting aside the judgement.

Facebook posting
Naidu was found guilty in November last year by High Court judge Justice Jude Nanayakkara for contempt scandalising the court.

Naidu posted on his Facebook page a picture of a judgment in a case represented by his associate that had the word “injunction” misspelt [as “injection”], and then made some comments that he was pretty sure the applicant wanted an injunction.

The committal proceeding was brought against Naidu by the then Attorney-General, Aiyaz Sayed-Khaiyum.

Naidu was represented by Jon Apted while Feizal Haniff represented the Attorney-General.

Rashika Kumar is a Fijivillage reporter. Republished with permission.

Article by AsiaPacificReport.nz

A former president of Kiribati warns the crisis involving the island nation’s government and the courts has left the country with a “dysfunctional judiciary” and put a question mark over its democratic system.

The Kiribati government suspended its chief justice in July and last Thursday immigration and police detained and attempted to deport High Court Judge David Lambourne.

They were unsuccessful after the country’s highest court ordered the Australian-born judge to be released.

The Court of Appeal stopped the government from deporting Lambourne pending a further hearing expected to be held this week, escalating further acrimony between the executive and judicial arms of the state.

Anote Tong, who was president of Kiribati from 2003 to 2016, says the issue of Judge Lambourne has clear “political connotations” because he is married to the leader of the opposition.

But, he said, the actions of President Taneti Maamau’s government bordered on contempt of court.

“The deportation order by the president [Maamau] is really in direct contravention to the decision by the court. So, whether the government is now in contempt of court is the question that really needs to be addressed,” Tong told RNZ Pacific.

“To be in direct conflict with the decision of the court here, I think we know what that means.”

‘Abiding by the laws of Kiribati’
In a statement, the government maintained that Judge Lambourne had breached his visa conditions and national laws and raised concern “by the overreach of the Court of Appeal” to issue an injunction to prevent his deportation.

The government said it “abides by the laws and the Constitution of Kiribati … to protect the interest of the people of Kiribati”.

It blamed “neocolonial forces” for “weaponising the laws enacted to protect” the i-Kiribati people “to pursue their own interest and suppress the will of the people”.

But Tong said the separation of powers is a fundamental principle of a democratic society.

“We have a constitution. We have the laws in place, and we have a court. The question is: are we adhering to these legal provisions?,” he asked.

“It looks like the government is crossing that boundary and delving into the purview of the judiciary.”

Tong said the problem between the government and Judge Lambourne began after the 2020 elections when his wife, Tessie Lambourne, was elected as leader of the opposition.

“There is no question about it,” he said, adding it did not “give an excuse for the government to ignore a court decision”.

He said until Kiribati amended its laws and constitution “to recognise that the separation of powers is fundamental to its democratic system of government, everything else that has been done will become illegal”.

International condemnation
The Commonwealth Magistrates’ and Judges’ Association (CMJA), the Commonwealth Legal Education Association (CLEA), and the Commonwealth Lawyers Association (CLA) have all raised concerns and said they were “alarmed” at the situation.

The associations have urged the Kiribati authorities to respect the rule of law and comply with orders of the courts.

“The associations are alarmed that the tribunals set up to investigate alleged misbehaviour by Judge David Lambourne and the Chief Justice William Hastings have yet to report on any findings,” they said via a joint statement.

“The associations are further alarmed that there has been an attempt to deport Judge Lambourne without due process being followed and he has subsequently now been arbitrarily detained by the authorities in Kiribati.”

CMJA, CLEA and CLA are urging the Commonwealth Ministerial Action Group (CMAG) to consider the actions of the Kiribati government as a matter of urgency.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

Amnesty International and Civicus have called on the Fiji government to drop contempt of court charges against a lawyer in Fiji for exercising his right to freedom of expression.

On 27 June 2022, Fiji’s Attorney-General Aiyaz Sayed-Khaiyum filed charges for contempt of court against senior lawyer and former journalist Richard Naidu for highlighting on social media an error in a court judgment where the word “injection” was used instead of “injunction’.

Amnesty International and Civicus said in a statement the charges were an “excessive and politically motivated response” to pointing out a spelling error in a court judgment and they violated the right to freedom of expression.

The Attorney-General acknowledged that the error pointed out by Richard Naidu was indeed a spelling mistake. He went on to claim that Richard Naidu’s post was malicious and invited others to mock the judiciary, referencing the comments and responses from others on social media.

Amnesty International and Civicus said they opposed the use of contempt of court or similar accusations used by the authorities deemed to amount to “scandalising the court” because this notion was inherently vague, and incompatible with the right to freedom of expression.

They were also not necessary for legitimate public interests (including the orderly proceedings of a court or the judicial process).

This type of contempt of court accusation was also subject to misuse, with penalties including large fines and imprisonment, the statement said.

Freedom of expression protected
“Under international human rights law and standards, the right to freedom of expression is protected. This right includes being allowed to make comments that may be regarded as critical, or even deeply offensive of government institutions, including the judiciary,” the statement said.

“Any restrictions on this right, including the threat of prosecution and punishment for ‘contempt of court’, must therefore be clearly provided for by law, and demonstrably necessary and proportionate for the purpose of protecting specified and legitimate public interests or the rights or reputations of others.

“In its General Comment on Article 19 of the International Covenant on Civil and Political Rights, which provides for freedom of expression, the Human Rights Committee, the UN body charged with overseeing the implementation of the Covenant by its member states, explains that:

“Contempt of court proceedings relating to forms of expression may be tested against the public order (ordre public) ground. In order to comply with paragraph 3, [providing for restrictions on this right] such proceedings and the penalty imposed must be shown to be warranted in the exercise of a court’s power to maintain orderly proceedings. Such proceedings should not in any way be used to restrict the legitimate exercise of defence rights.”

“The maintenance of orderly proceedings” included the protection of the rights of the accused and responding to acts which amount to obstruction of, and interference with, the judicial process, the joint statement said.

“Such powers must not be exercised in a manner that restricts the right to freedom of expression beyond those restrictions provided for in international human rights law.

‘Manifestly disproportionate’
“Pursuing a lawyer with legal punishment for pointing out accurately a spelling mistake in a public court judgment on social media is manifestly disproportionate and a violation of his right to exercise his freedom of expression. It could also be seen as an act of intimidation or harassment.”

Fiji’s civic space rating remained “obstructed”, according to the Civicus Monitor, a research tool the NGO uses to track the state of civil society and civic freedoms in 196 countries.

This was the most recent in a string of cases where legal proceedings have been abused to silence journalists, non-governmental organisations, political opponents, and lawyers.

Naidu faces hefty fines and possible imprisonment should he be convicted of the offences.

Other laws used to stifle freedoms include sedition provisions in the Crimes Act as well as the Public Order (Amendment) Act 2014 that have been used to target journalists, activists and government critics, while other sections of the Public Order Act have been used to arbitrarily restrict peaceful protests.

The Fijian government has resisted calls to allow the UN Special Rapporteur on the Independence of Judges and Lawyers to visit and assess the situation since 2009 when major judicial reforms were implemented.

“The recent contempt charge undermines the independence of lawyers and the legal profession and will have a chilling effect on freedom of expression,” said the statement.

“This is contrary to the government’s duty to ensure that lawyers are able to perform their professional duties, which include scrutiny of courts, safely and without any threat, intimidation or harassment.

Amnesty International and Civicus call on the Fiji authorities to:

• Immediately drop contempt of court charges issued on 27 June 2022 against Richard Naidu;
• Refrain from prosecutions of lawyers, journalists and non-governmental organizations solely for the peaceful expression of opinions online or in any other medium;
• Publicly commit to upholding the right to freedom of expression, which includes the right to be critical, consistent with international human rights laws and standards and Fiji’s Constitution; and
• Invite the UN Special Rapporteur on the Independence of Judges and Lawyers to visit Fiji and fully co-operate with their visit.

Article by AsiaPacificReport.nz

A Supreme Court ordered mass eviction of settlers on land between Papua New Guinea’s University of PNG, Gerehu Stage 3B and Morata stage one in the National Capital District has been stopped at the 11th hour by Chief of Police Operations and Deputy Police Commissioner Operations Anton Billie.

Deputy Commissioner Billie’s orders to stop this mass eviction have put him in a collision course with two separate orders of country’s highest court — SCA 19 of 2018 and SCA 77 of 2015 — unless he reviews and rescinds his orders within 72 hours.

Lawyers representing the land developers have threatened the police with a contempt lawsuit.

Deputy Commissioner Billie ordered a freeze on the mass eviction citing concerns that the court order was not clear and that the legal ramifications of police involvement were not properly clarified in such a large scale operation involving many families.

In a minute sent to NCD Central Commander, Deputy Commissioner Billie said: “After having been briefed on the matter involving the occupants of the portion of land, NCDC, Sixth Estate Limited and Lands and Physical Planning Department, I believe it is a very complex issue as it is.

“If a request with clear court orders have been presented for police assistance, then we have to engage our Legal Directorate to clarify our legal standing in the matter first before engaging our men.

“There is no real need for impetuosity.”

Land dispute settled in 2016
But the registered proprietor of the land — as determined and settled by a three-man Supreme Court bench in 2016 — the Sixth Estate Limited, through its chairman and chief executive officer Philip Mark Paguk, said the Deputy Commissioner may not have been privy to the history of the issue.

In a detailed, five-page letter, including attachments, lawyers of Sixth Estate Limited, Kandawalyn Lawyers, explained the background to all the court proceedings from the district, national and Supreme Court and two police operational orders for the eviction exercise.

The law firm urged the Deputy Commissioner to revoke his earlier orders within 72 hours or contempt proceedings in the Supreme Court would be filed against him and others who were hindering the mass eviction.

“There is no stay order of the Supreme Court Decision in Otto and Others vs Sixth Estate Limited and Others; SCANO. 19 of 2018 and SCA. NO.77 of 2015, hence the runway is clear for the proposed eviction to progress in compliance with the Supreme Court Order,” the lawyers advised.

The letter went on further and stated that: “As far as we are concerned, there is no court order in place stopping/hindering/restraining the pro-posed eviction exercise.

“There is a Supreme Court order in place as mentioned in our letter for police assistance, and that paves the way for the eviction to commence with the assistance of police.”

CEO Paguk said that while he appreciated the concerns raised by Deputy Commissioner Billie in his minute freezing the eviction exercise, his company had spent millions of kina in mobilisation for this eviction after almost 10 years of court battles.

Republished with permission.

Article by AsiaPacificReport.nz

Samoa’s HRPP party — the country’s caretaker government — has now lost six seats since the April 9 general election, with eight byelections to come.

The incoming FAST Party government holds 26 seats to the HRPP’s 19.

FAST, which won the election but has been stymied in its efforts to assume power by the HRPP, continues to hold a majority of the 51 seats in the Parliament.

The caretaker government has lost six seats during the electoral petitions while a further two are to be contested again at the agreement of candidates.

Today, as the electoral petitions continue to come before the court, three HRPP candidates who had won their seats, agreed to resign, ahead of facing the judge, and so force byelections.

The HRPP’s Tuila’epa Sa’ilele Malielegaoi has been pushing for a new general election to solve the political impasse since he first prompted the crisis by refusing to step down.

Meanwhile, a Supreme Court hearing set to determine if Tuila’epa will face criminal contempt proceedings has been delayed.

Tuilaepa, the attorney-general, Parliament’s former speaker and its clerk were to appear for preventing Parliament from convening on May 24 as the court ordered.

The court is to probe the roles played by the four in defying the May 23 order that the 17th Parliament convene the next day and members be sworn in.

The contempt citation was brought by FAST, but its lawyers today sought a delay in proceedings.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

In the latest twist in Samoa’s political rollercoaster, the FAST party has accused the rival HRPP leader of contempt of court, reports Pacific Media Network News.

Tuila’epa Dr Sa’ilele Malielegaoi has been accused of ignoring a Supreme Court ruling to convene Parliament, when FAST should have been sworn in as government.

Also accused alongside Tuila’epa is the Speaker of Parliament, the Clerk of the Legislative Assembly and the Attorney-General.

The motion was filed by Prime Minister-elect Fiame Naomi Mata’afa, leader of the FAST party, who has also accused Tuila’epa of undermining the judiciary through disparaging comments.

Fiame Naomi Mata’afa speaking on 531pi’s Pacific Days. Video: PMN News

Speaking on 531pi’s Pacific Days, Fiame claimed her opposite number was still refusing to accept his defeat in the April 9 general election.

Negotiations between Fiame Naomi Mata’afa and Tuilaepa Sailele Malielegaoi broke down earlier this week after they disagreed on a transition to a new government

Fiame claims there was nothing out of the ordinary regarding her request.

Transition to new government
“We were looking for a discussion to transition to a new government and then moving out.

“It’s not as though he [Tuila’epa] should be surprised. I think the man is in serious denial, as though it’s very unusual for a party that has won the election to say, ‘Listen mate, these are the results and you should be moving out and let’s have a discussion about that’.”

Fiame doubts there will be further negotiations given the stance taken by herself and her opposite, Tuila’epa.

“Well, you never say no to a negotiation if there’s some rational outcome to be gained from it, but from the positions that we’ve taken and especially the interpretations of the appeal court’s decision, I don’t see it.”

Fiame told Pacific Days that she found it an irony about what was being discussed between the two political party leaders.

“This whole impasse is centered around representation for women, so as a woman, I’m quite fascinated,” she said.

“I’m always pleased if there’s an increase of women in Parliament, but people need to understand that this is a particular provision within the law and there are issues around it.”

Prepared for court rulings
The FAST party leader said she was prepared to go through the formal process of the court ruling on election petitions in order to come to a resolution.

“He’s [Tuila’epa] wanting to delay the process of government, of Parliament meeting and for us to move in and he was saying to us, it was in our interest to cut short this process and do what he was offering of 26 members each going into the House,” Fiame says.

“So I said to him, ‘Listen, however long it takes, you can be sure that we will be pursuing that and through the law’.”

When asked whether the FAST party would be willing to go through a second election, Fiame replied: “Why would we? We won the election. We’re not silly.”

Article by AsiaPacificReport.nz

By Royson Willie and Kizzy Kalsakau in Port Vila

Vanuatu’s Supreme Court has asked the police and immigration to release Fijian citizen Mohammed Rizwan and to substantiate the claim that he is a wanted man in Fiji.

Rizwan’s lawyer, Frederick Loughman, confirmed that yesterday’s conference in chambers saw the court directing for the relevant documentation from Fiji to be made available by June 12.

After the documents are submitted to the court as ordered by the court on Wednesday, then the matter would be listed for trial.

READ MORE: Contempt application filed in Vanuatu over attempt to deport Fijian

An application for contempt would be heard after this matter is heard.

One of the grounds for the application for contempt was that the agents of the government did not provide any formal legal instrument from the government of Fiji to substantiate their new grounds for deportation or the claim that Rizwan is a wanted man in Fiji.

-Partners-

Minister of Internal Affairs Andrew Napuat said the Immigration Act section 53 said the minister could carry out the removal of non-citizen without notice if the person was a wanted person in another country.

“That’s basically what we’re following,” Napuat said.

“We’re following what the law says.”

Discharged from hospital
The minister said Rizwan was discharged from hospital on Wednesday evening but there was another application to the Magistrate Court by the Acting Director of Immigration for Rizwan to be detained because he was allegedly a wanted person in Fiji.

The minister confirmed that Rizwan has a valid residence visa.

“He’s entitled to live in Vila but we don’t have a copy of his police clearance ever since he arrived.

“That’s something that we’re still investigating.

“We need that to come and other supporting documents from Fiji about his cases and that the Fijian authorities want him in Fiji so they can settle outstanding matters they have against him,” the minister alleged.

The minister said Rizwan’s detention and supervision after being discharged from the hospital was done by immigration officers.

“We don’t have any personal issues with the foreigners we’re dealing with.

‘Implementing the law’
“We’re just basically implementing the law, which has not been implemented in the past or may have been relaxed in the past.

“The funny thing though is when we are trying to implement the law and safeguard the interest, the sovereignty of Vanuatu and their nation there are some people that don’t see the logic behind the work the government is doing.

“Even if they are lawyers or politicians, they need to ask themselves, what do they want for this country?

“That’s the most important thing.

“Do they want this country to be a home for criminals, illegal immigrants, overstayers, those that do not have the appropriate papers to come into the country and work here?

“I believe that money should not be the factor that will drive the citizens of the country to do what they want to do.

“They need to look higher into seeing their country, their future, the future of the people, their children.

“It’s sad to see that when the government is trying to do things according to law and trying to protect the sovereignty and interest of the people, some people don’t see that as important,” the Internal Affairs Minister said.

The lawyer representing Rizwan had said his interest was to see that the law was adhered to at all times, even if it was a deportation carried out by the government, it must be done within the confines of Vanuatu laws.

The Pacific Media Centre has a content sharing arrangement with the Vanuatu Daily Post.

Article by AsiaPacificReport.nz