PM's terms 'outrageous", suggests Solicitor General
“This shows how outrageous these terms of reference are,” the Solicitor General, Nathan Moshinsky QC said. “It would amount to interference with existing and future process,” he said.
Mr Moshinsky said that two of the 11 terms of reference Prime Minister Manessah Sogavare set for the inquiry could lead to serious interference with court work. He was appearing for the Attorney General, Primo Afeau.
Mr Moshinsky asked the judge, Justice John Brown, to quash the two clauses. He cited several legal grounds and precedents dating back to 1865. The judge said he would give his decision as soon as he could.
Mr Moshinsky said the clauses to which he objected were so unreasonable that no reasonable Prime Minister, acting in accordance with the law, could have set them. He argued too, that Mr Sogavare had exceeded his powers, in setting them. Mr Moshinsky also said Marcus Einfeld, the man chosen to head the inquiry, had been seriously mistaken, when he promised that he would not allow the risk of contempt of court to arise. As things stood, Mr Einfeld, would have no choice but to report on the two objectionable clauses. His appointment was executive, not judicial.
Mr Sogavare was not represented at the hearing. However, he sent a letter to the court, saying he would accept whatever decision the judge made. Mr Moshinsky said this is the traditional practice, in such cases.
The first of the two clauses the Attorney General is seeking to have quashed sought information on the role any MPs might have had in the April riots. The commission was ordered to:
(1) “Investigate, examine and determine the role of any member of parliament (including the Honourable Charles Dausabea PM and the Honourable Nelson Ne’eMP)(“the accused persons”) in the organization and execution of the April civil unrest.
(2) "Review the circumstances relating to the arrest, charge and detention of the accused persons, as well as investigate and evaluate the basis on which their continued detention in custody was reasonably justified and not politically motivated, so as to deprive them and their constituents of their constitutional rights and responsibilities.”
Both MPs have been arrested, charged and detained on allegations arising from the riots. Both have repeatedly been refused bail. Mr Moshinsky had an early victory in the case, when the judge ruled that the Attorney General does have the necessary standing to make such an application to the court. Mr Moshinsky said the Attorney General had brought the case, not as an executive officer, but as a friend of the court.
Proceedings against the two MPs are already under way, in the Magistrates’ Court. Both have pleaded not guilty. Mr Moshinsky said the proposed Commission of Inquiry would be given just six months to report. So magistrates, as well as High Court judges, could be called before the commission, to explain what weight they put on the strength of the prosecution case. Mr Moshinsky said the rules of evidence, which apply in court, would not apply before the commission. He said the Attorney General’s application had been made to protect the proper functioning of the Solomon Islands courts.
Source: Solomon Star