Richard Naidu

Suva lawyer Richard Naidu’s application to cross-examine Attorney General Aiyaz Sayed-Khaiyum in the substantive hearing in relation to committal proceedings filed against him has been refused by the Civil High Court in Suva.

This committal proceedings against Naidu stem from a post on his Facebook page in which he allegedly made comments about the judiciary following a case in February.

Naidu’s lawyer Jon Apted had made submissions saying that the constitution gave every accused person the right to challenge evidence presented against him.

He also said that the Attorney General is like any other witness in the court proceedings and that he was not immune from the rules of the High Court.

Apted also submitted that the Attorney General’s sole purpose in bringing the contempt proceedings is to harass and embarrass the respondent and the Facebook post is nothing more than a light-hearted quip.

He argued that the motive and good faith of the Attorney General are at issue and therefore the court should not act without cross-examining the Attorney General.

In her reply AG’s lawyer, Gul Fatima stated that the respondent was not deprived of his rights and the court had clearly accommodated the respondent’s constitutional rights in this proceedings by allowing him to remain silent or produce evidence to challenge it.

Fatima also submitted that an allegation of contempt by scandalizing the court is very serious.

She also said that it was clear from the current summons that the respondent only wished to cross-examine the Attorney General on his affidavit verifying facts, however, had failed to point out which portions of the affidavit were in contention as the AG did nothing more than placed the alleged contemptuous material before the court.

She also invited the court’s attention to the fact that the position in Fiji in such matters is to allow cross-examination in exceptional circumstances and is at the court’s discretion.

She also submitted that the respondent has all the rights to call witnesses and give evidence and she argued that there is nothing in the constitution compelling anyone to subject himself to cross-examination against his wish.

The High Court Judge in his ruling today stated that the alleged contempt in the present case is not in connection with criminal proceedings and therefore the summary procedure is the rule and ordinary is the exception.

The Judge also stated that the respondent has no constitutional right to confrontation and cross-examination of the Attorney General.

The Civil High Court Judge also said that the contempt in the form of scandalizing the court is a public injury.

He also said that the reason behind it being an offence is not to protect the dignity of the individual officer but to protect the integrity of the administration of justice.

The Judge also said that a clear line has to be drawn between acceptable criticism of the judiciary as an institution and of its individual members and on the other side statements that are downright harmful to the public interest by undermining or ridiculing the legitimacy of the judicial process.

Following this ruling, AG’s lawyer Gul Fatima also raised an issue relating to an article on this proceedings in The Fiji Times dated October 15th in which Naidu’s lawyer Jon Apted was quoted saying “If the evidence cannot be challenged, that would be a kangaroo court.”

Fatima today alleged that this statement is contempt in the face of the court.

She said given that this has transpired during the course of the current proceedings and Fatima asked the court whether they will consider launching a committal proceeding.

She said any ordinary Fijian reading the article would hold a certain view about the court.

The High Court Judge then said that this transpired before his court and that the matter should go before a different judge.

He also said Fatima may inform the registry for further steps to be taken.