Curfew order unnecessary says PSO
By ASSUMPTA BUCHANAN
RULING as to whether the legal issue regarding the curfew matter will be dealt with in the Magistrate’s Court or transferred to the High Court will be made on May 4.
This followed further submissions from both the prosecution and the defence on Tuesday before Chief Magistrate Emma Garo.
Public Solicitor Howard Lawry had submitted that the Honiara Magistrates’ Court does not have the jurisdiction to inquire into the legality of the PM’s Order to restrict the movement of people in Honiara.
He is representing three of the five people who were part of the 63 individuals who were arrested and charged for allegedly breaching the curfew on April 10 and 11.
His clients have pleaded not guilty to the curfew related charge at a previous court appearance on which Lawry raised the legal issue regarding the curfew regulations in terms of the COVID-19 issued by the prime minister.
In light of the legal issue, Ms. Garo last week had invited further submissions in relation to section 4 (3) of the Emergency Powers Act and section 16(8) of the Constitution.
She wants to know if she has the jurisdiction to deal with this matter or not.
She also wants to know if this matter should be transferred to the High Court to hear the legal argument if she does not have the power to hear the issue.
Lawry in his submission said the Order issued by the prime minister was not necessary.
He said the greatest demonstration that the Order was not necessary is that in the days that have passed there has been no repeat of the curfew and it is still unclear why the Order for a curfew was made.
Lawry added that the order was not necessary for “restricting the movement of a person if it is necessary for the maintenance of order and security of the public in an emergency zone.”
“This was the only basis on which an Order was permitted under Regulation 12 (1) of the Regulations,”
He added that it could not have been to stop the spread of the virus as only two nights was selected and then from 8pm to 5am.
Lawry said the virus has no respect for the days of the week nor hours of the day adding that the prime minister has not authorized to make an order if necessary for public health.
He said there was no evidence that there were any public disorder.
“What then was necessary for the security of the public? he questioned.
In concluding his submission, Lawry submitted that there is a real issue to be determined concerning the breach of section 14 of the Constitution.
He said the request to have the question determined in the High Court is neither frivolous nor vexatious and it affects the rights of not just the three accused but also others who were arrested for allegedly breaching the curfew.
The Prosecution, on the other hand, was of the view that the matter should be dealt with in the Honiara Magistrate’s Court because section 16 (8) of the Constitution deals with people who are detained and not people who are arrested and charged.
The Director of Public Prosecutions (DPP) Rachel Olutimayin had stated that the Legislation distinguishes clearly a person who is detained from a person who is arrested and charged.
She also invited the court to consider section 3(f) of the Emergency Powers cap 11 to see the distinction.
Ms. Olutimayin submitted that section 16(8) of the Constitution does not prevent the principal magistrate from hearing charges that arise from the PM’s order imposing a curfew or from hearing the curfew cases.
“It is pertinent to say that no one in the Solomon Islands is in detention for breaching the curfew order.
“The three defendants, in this case, are not in detention nor are they remanded in custody for breaching the curfew order.
“All the people were arrested for breaching the curfew order were bailed on 11 April 2020 to appear in court on Tuesday 14 April 2020,” Ms. Olutimayin submitted.
She said only five of the 63 people were remanded in custody on April 11 to appear in court on April 15 and all of them were released on bail that same day.
“Section 16 (8) of the Constitution applies where a person is detained pursuant to a regulation made under section 2 of the Emergency Powers Act, Cap 11, Laws of Solomon Islands,” she added.
She also pointed out that on 19 March 2020, the prime minister addressed the nation in terms of the COVID-19, and the World Health Organization also declared the coronavirus a Global Pandemic on 11 March 2020.
She also added that measures in terms of the WHO’s call were also made which resulted in the closures of school, repatriation of non- workers citizens to the province, closure of the Solomon Islands and Papua New Guinea border, closure of all markets except for the Honiara Central Market and other measures.
In concluding, she said the Crown contends that this court has no jurisdiction to determine the question of the legality of the emergency order that creates the offence of restriction of movement in Honiara.
“The court is presumed that the present charge is properly before it and to proceed to hear the matter.
“It is submitted that the question of the legality of the Order may be decided only by the High Court.
“It is further submitted that this court is not obliged by statute to refer the question to the High Court, it is for the defendant in this matter to take their challenge to the High Court.
“The question then is what happens to the present proceedings if the defendants decided to take their challenge to the court?
“It is submitted that this court may stay the present proceedings until the high court pronounces the matter,” she further submitted.
