Former Attorney General Aiyaz Sayed-Khaiyum and former Supervisor of Elections Mohammed Saneem will know their fate on the 2nd of February next year when Chief Justice Salesi Temo delivers his judgement in the abuse of office and receiving corrupt benefit case.
While delivering her closing submission in court, Acting Director of Public Prosecutions Nancy Tikoisuva stresses this is not a tax or an employment case as there is no allegation that Saneem did not pay his tax.
She says this is about the corruptive motive of their conduct in executing a second deed of variation without following constitutional processes and giving benefits to Saneem who was in high public office and even conducts done in the course of being employed as a civil servant can be criminal.
Tikoisuva says Sayed-Khaiyum has stated in court that he held the belief that he was delegated the powers by the President.
She says that the mistaken belief of this supposed delegation of powers was not reasonable as the President delegated the execution of the contract to the Prime Minister in his capacity as Chair of the Constitutional Offices Commission.
The Acting DPP says there is no mention at all of any delegation of the Presidential powers to Sayed-Khaiyum and the only delegation of powers mentioned and prescribed ever in the Constitution is to the Chief Justice and nowhere else in the Constitution can the President delegate its function and powers.
Tikoisuva also says that throughout the trial, Sayed-Khaiyum and Saneem referred to the second deed of variation as “the replacement deed” which was done to replace the first deed of variation.
She says it was indeed a “replacement deed” because it was done with the sole purpose and intent to conceal the existence of the first deed of variation and to make it look like that the second deed of variation was the one that was approved and determined by the President January 2022.
The Acting DPP says the two deeds had the same date, the same witnesses to the signature, it had no reference to the first deed and if it wasn’t for Financial Controller at the Fijian Elections Office Romika Sewak hiding a copy, no one would ever know that the first deed of variation was done, processed and paid.
She further says that Saneem knew very well about the process of getting additional benefits to himself and had been writing to the Secretary of the COC before.
Tikoisuva asks why did he not do the same prior to the second deed of variation and try to conceal the existence of the first deed.
She says he used his position of authority over the FEO staff to try to conceal his conduct.
Tikiosuva says on or around the time he received the benefit in 2022, he made a decision not to refer charges against the former FijiFirst party to FICAC after they breached the campaign laws and also made the executive decision to waive a legal requirement on the nominations of political parties without any legal basis.
She says the only basis was that former FijiFirst General Secretary Sayed-Khaiyum had called Saneem to tell him that his interpretation of the law was wrong and as a result of that Saneem had to waive for all other political parties.
The State prosecutor adds that clearly, the decision of the Supervisor of Elections at the time was influenced by Sayed-Khaiyum on the interpretation of the law.
Sayed-Khaiyum and Saneem’s lawyer, Devanesh Sharma says there is nothing sinister about the replacement deed and one deed can be replaced by another and which were drafted by the Solicitor General's office.
He says Saneem’s benefit arose because he was unhappy with his back pay and the two parties to the deed were the Government of Fiji and Saneem.
Sharma says the Constitution states that the remuneration and allowances of the SOE must not be varied to their disadvantage during their term in office, except as part of an overall austerity reduction.
He says Saneem was advised by Sewak around 6th July that out of his back pay of $111,285.17 for the year ending 31st December 2021, he had to pay taxes in the sum of $110,840.73, leaving him a balance of $394.44 and anyone in authority who is receiving a back pay after delivering two great elections, who gets $111,070 and then ends up with that amount is going to be upset.
Sharma says to counter this disadvantage and to preserve Saneem's salary, the Office of the Solicitor General drafted a second deed whereby any additional tax over $67,000, which was the ordinary tax, would be paid for by the government directly to the FRCS.
Sharma says Sayed-Khaiyum acted lawfully to comply with the Constitution to preserve Saneem’s salary and stresses that there was going to be no additional payment to Saneem.
He also says that any narrative that the government suffered prejudice is also misconceived.
Sharma says Sayed-Khaiyum expected nothing in return from Saneem but for him to perform his role independently, which he did.
He says there is no evidence that Sayed-Khaiyum and Saneem were talking to each other and there was no evidence that Saneem asked for or received from Sayed-Khaiyum a corrupt benefit but he asked for the COC to look into why his taxes were so high and that was being unfair to him.
He also says Saneem was fair to every political party as he knew there was an election coming, and so he gave the parties an opportunity to rectify any default so that they could concentrate on the business of doing an election rather than fronting court.
Sharma further says the minutes of the January 2023 meeting of the COC was put before the court and none of the new members of the COC took any issue with the payment being made to Saneem or the replacement deed.
He adds the COC is not the complainant but SOE Ana Mataiciwa is who agreed with him that natural justice was denied.
Sayed-Khaiyum is charged with one count of abuse of office while Saneem is charged with one count of receiving a corrupt benefit.
It is alleged that between the 30th of June, 2022 and the 12th of July, 2022 in Suva, whilst being employed in the civil service as the Acting Prime Minister of Fiji, Sayed-Khaiyum signed a Deed of Variation and Addendum between the Government of Fiji and the Supervisor of Elections, Mohammed Saneem, agreeing to pay the taxes of Mohammed Saneem without the proper approval of the Constitutional Offices Commission and the President of Fiji, in abuse of the authority of his office, which was an arbitrary act prejudicial to the rights of the Government of Fiji.
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.
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