Under the Constitution, the lower courts have the right and power to determine constitutional issues, says lawyer Devanesh Sharma.
Mr Sharma made the observation in relation to a motion raised in the cases of former prime minister Voreqe Bainimarama and former attorney-general Aiyaz Sayed-Khaiyum, who are co-defendants with former health minister Dr Neil Sharma, who is represented by Krishneel Chang.
Senior Magistrate Sufia Hamza is presiding over the case of the three men, who face charges of abuse of office, obstructing the course of justice and breach of trust by a person employed in the public service over alleged transactions in 2011.
They’re accused of failing to comply with statutory requirements as stipulated under the 2010 Procurement Regulations.
Dr Sharma is charged with two counts of abuse of office and two of breach of trust. Mr Sayed-Khaiyum is also charged with one count of abuse of office and one of obstructing the course of justice while Mr Bainimarama is charged with one count of abuse of office.
Magistrate Hamza said the main issue in the motion — challenging the validity of charges and appointments by the office of the Director of Public Prosecutions — was its jurisdiction.
Mr Sharma told the court that under section 44(6) and section 99 (7), the court had the jurisdiction to determine any issue under the Constitution, but it also had the option of transferring the matter to the High Court.
However, DPP lawyer Nancy Tikoisuva said the motion under section 290 of the Criminal Procedures Act ought to be properly addressed before a judicial review or stay of proceedings.
Magistrate Hamza outlined arguments on jurisdiction and directed Mr Sharma and Ms Tikoisuva to file submissions by January 8 next year.
Meanwhile, the former health minister’s lawyer, Krishneel Chang, said the response by Ms Tikoisuva relating to the documents and information he sought was not addressed.
Mr Chang had asked for the FICAC file in this case, a list of state witnesses, confirmation of the first and second phase disclosure contents, and whether the DPP’s office or the police had more undisclosed evidence.
Ms Tikoisuva will make submissions to address Mr Chang’s request.
The hearing date for the motion will be recalled on January 23 next year.
