High Court to rule on March 21st on appeal application against Sayed-Khaiyum and Saneem

The Suva High Court will make a decision on former Attorney General Aiyaz Sayed-Khaiyum and former Supervisor of Elections Mohammed Saneem appeal against the Magistrate Courts decision on the 21st of March.

Saneem's Laywer, Devanesh Sharma had appealed against the decision of the Magistrates Court that the charges laid on Sayed-Khaiyum and Saneem by the then Acting DPP John Rabuku were valid.

He is also appealing on the grounds that Saneem's human right were breached and that the Magistrate had no jurisdiction to hear the initial matter regarding Rabuku's decision and human rights violation.

While making his submission before High Court Judge Justice Thushara Rajasinghe, Sharma says the Magistrates Court’s decision to not send the matter to the High Court was wrong as he also did not have the jurisdiction to hear the grounds regarding the human rights violation as it was a constitutional matter.

He says Saneem in his affidavit, Rabuku and Magistrate Yogesh Prasad had decided that the matter would be taken to the High Court but Magistrate Prasad had changed his mind on the next date.

Sharma says they had also agreed that the matter relating to the consolidation of charges against Sayed-Khaiyum and Saneem would be parked.

The lawyer further says the CID cannot usurp the right of FICAC to investigate the matter as the complaint was made by Acting Supervisor of Elections Ana Mataiciwa under the Electoral Act.

He says Mataiciwa had then said that she does not have confidence in the then FICAC Commissioner but it does not mean she can change jurisdiction and file a complaint with the Police.

Sharma says the law is clear that it is mandatory that bribery matters be reported to FICAC.

While speaking on the breaches to Saneem’s rights, Sharma says Saneem was in custody for more than 48 hours without being charged, no order was sought from the Magistrates Court to extend his remand to more than 24 hours, he was caution interviewed for no reason after the charges were sanctioned against him and his right to counsel of choice was denied.

The defence counsel also says that Police had said that they had orders from the top to keep Saneem for more than 48 hours and says that Rabuku was at the top at that time.

While arguing on the jurisdiction under which the matter should have been brought forward, Acting Director of Public Prosecutions Nancy Tikoisuva says Sharma did not bring the matter to court under Section 290 of the Criminal Procedures Act but he did it under the Constitution, for which the Magistrate did not have the jurisdiction.

According to Section 290 of the Criminal Procedures Act prior to the trial of any criminal proceeding either party may make application to the court having control of the proceeding for any order necessary to protect the interests of either party or to ensure that a fair trial of all the issues is facilitated.

Tikoisuva also says their application is alleged that Sayed-Khaiyum between June 30th and July 12th in 2022, while being the Acting Prime Minister, signed a Deed of Variation and Addendum between the Government and the then Supervisor of Elections, Mohammed Saneem.

She says it is a civil matter that should be brought before the Civil Court and the Magistrate did not have the grounds to grant orders because they should be through a Judicial Review or Constitutional Review.

Tikoisuva says the Magistrate’s jurisdiction is limited to what application is before him and the relief sought was out of jurisdiction as well.

The Acting DPP agrees that the Magistrate did not have the jurisdiction to deal with the validity of charges filed by Rabuku and that the charges cannot be reviewed unless they leave for a Judicial Review.

Meanwhile, the hearing on Sharma’s appeal against the Magistrates Court decision to consolidate the charges against Saneem and Sayed-Khaiyum will be heard after the High Court rules in this matter but a date has not been set.

It is alleged the approval for the government to pay the taxes of Saneem was done without the proper approval of the Constitutional Offices Commission and the President.

It is alleged that between the 1st of June 2022 and the 31st of July 2022, while being employed as the Supervisor of Elections, Saneem without lawful authority and reasonable excuse, asked for, and obtained a benefit for himself, that is, the approval and payment of deductible tax relief of more than $50,000 on his back pay from a senior Government official.