Win for Grace Road 7

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Daniel Kim outside the Tagimoucia Court House in Lautoka. Picture: BALJEET SINGH

The Fiji Court of Appeal yesterday ruled the decision by the Minister for Home Affairs to detain seven officials of Grace Road can be subject to a habeas corpus application hearing, adding “the role of the court is supervisory and to ensure that wide powers are not abused or exercised arbitrarily”.

The three-member bench ruled the High Court in Lautoka was wrong to strike out the habeas corpus application in the case involving Grace Road president Daniel Kim and six of his colleagues.

On October 27, 2023, Justice Lyone Seneviratne had struck out the habeas corpus application on the grounds that it was an invalid application, and upheld the argument that the Minister for Home Affairs’ decision to detain the seven could be challenged.

However, the Fiji Court of Appeal yesterday ruled Justice Seneviratne was wrong and that the detention order by the minister can be challenged, with the case remitted back to him with a re-hearing order of within seven days.

“Since the essence and purpose of a writ of habeas corpus is to determine the legality of the detention or arrest, all matters that may be raised in judicial review proceedings may not always be related to every order made in respect of departure from the jurisdiction,” stated Justices Filimone Jitoko, Farzana Jameel and Karen Clark in their ruling.

“Often the applicant is not necessarily under detention, but is the subject of a deportation order, or a denial of the right of enter. In such cases, the decision of the authority would be the subject of judicial review proceedings.”

The justices said the writ of habeas corpus therefore continued to remain relevant in constitutional democracies.

“Most courts will be reluctant to interfere with national security concerns and matters that lie within the exclusive domain of the elected representative, and the executive branch of government, and would, in the interest of comity, defer to the views of the elected representatives,” the ruling stated.

“However, the constitutional role ordained for the judiciary ought not to be abandoned under the guise of the separation of powers in cases of habeas corpus and judicial review.

“The role of the court is supervisory and to ensure that wide powers are not abused or exercised arbitrarily, whilst remaining cautious and refraining from imposing its own judgment on how public authorities should use powers allocated to them.”

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