Police powers apply across Fiji, says law professor
Police powers apply across the land, says law professor on Fiji dispute over military stance.
An Auckland law professor, Bill Hodge, says unless there is an emergency situation, the police have the right to access the military barracks to carry out an arrest warrant.
Fiji prosecutors say the police were denied access to arrest a military officer wanted for sexual assault, who skipped court twice.
The military is disputing the prosecution's claim but also says access is not for everybody.
Professor Hodge says the law applies across the land.
BILL HODGE: There is no doubt that, unless you have a military dictatorship and there is certainly some symptoms of that, that the rule of law applies across the land. And the rule of law applies on a military reservation, it applies on a military base, and the police as representatives of a constitutional authority have jurisdiction to enforce, carry out search warrants, arrest warrants etc. There would usually be a courtesy - my experience in the military leads me to say there would be a courtesy that if the police say 'we want so and so, we've go a warrant' then the military authority would produce that person and hand that person over for justice in the system. But it sound like they're carving out a region and a doctrine of immunity, or being above and not subject ot outside the ordinary legal system which is anathema to the rule of law as we understand it.
WALTER ZWEIFEL: Could there be special circumstances that would entitle the military to say that they won't allow the police access to the barracks?
BH: There would have to be some sort of state of emergency still surviving. If it was for example an alleged crime that took place in the battalion serving in the Middle East, I suspect the military would have some argument that there was non-justiciability for what one does overseas in a combat situation. There is plenty of law about soldiers serving in a combat zone. So when a soldier beats up a civilian or tortures a possible criminal or civilian or someone escaping, that subject to the rule of the land, the rule of law and the ordinary courts and the ordinary police. So unless there is some survival of some state of emergency, which exempts a military reservation - and I'm not completely clear that all such regulations from the days of emergency have been done away with. But otherwise the military reservation is part of Fiji and subject to the law of Fiji.
WZ: Now the military has hired three police accused of assault, including a person accused of rape. Is there a possibility that the military could try to say that these people have some sort of immunity, that they are part of the military, and the military being the guardian of the best interest of Fiji?
BH: I would hate to see the military go down that route. Your analysis sounds like the military are trying to drape a form or a cloak of immunity over people who were not military at the time and retrospectively develop a concept of immunity - even if there is some sort of immunity. Now an interpretation could be they are draping those former constables with a military cloak of immunity although I don't agree that there should be such a cloak of immunity in any event.
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