Ruling on Sayed-Khaiyum and Saneem's no case to answer application today

Chief Justice Salesi Temo will deliver his ruling on former Attorney General Aiyaz Sayed-Khaiyum and former Supervisor of Elections Mohammed Saneem's no case to answer application today.

The no case to answer application was filed in court earlier yesterday.

The two will be acquitted if the judge decides that there is no case to answer however the defence has to present it’s case if the judge rules that there is a case to answer.

While making his submission in court, Sayed-Khaiyum and Saneem's counsel Devanesh Sharma argued that the President had delegated his powers to the Prime Minister regarding Saneem's contract.

He says all terms of the contract are determined by the Prime Minister and the contract says that the Government will remunerate Saneem.

The defence counsel says in January 2022 the Electoral Commission wrote to the Prime Minister as the Chair of the COC about giving Saneem an increase in pay as nothing was done since he came into office in 2014.

Sharma says Saneem wrote to the then Secretary to the COC, Sharvada Sharma to ask for a salary increase and the Acting Secretary to the COC Preetika Prasad informed the President on 30th June 2022 that the COC had met and increased the salary to $350,000 with benefits and backpay.

He says when asked during cross-examination if tax is remuneration or allowance, Prasad had said that it was neither and was a benefit.

Sharma also says that Prasad had confirmed that lawyer Valerie Narain drafted the second Deed of Variation which allowed Saneem to receive a tax relief of over $55,000.

He says Narain vetted the contract, while another lawyer, Noleen Narayan, stated that Saneem was present as Narain drafted it and took instructions from Prasad over the phone.

The defence counsel says it was drafted and approved by legal experts.

Sharma says there is also no evidence that Saneem was bullying and gave instructions to destroy it when it was attached with the payment voucher.

He further says that Supervisor of Elections Ana Mataiciwa admitted she should have gone to FICAC but she went to Sakeo Raikaci at Police CID.

He says this was an abuse of process on Mataiciwa’s part.

Sharma also says that the prosecution did not produce any evidence that Sayed-Khaiyum was a member of the civil service or if there was any prejudice to the government.

He says there is also no evidence produced that Sayed-Khaiyum was the General Secretary of the FijiFirst Party.

The defence counsel also says that no one was called to give evidence from the current COC, the Office of the President, or from the Ministry of Finance that the government suffered from this.

Sharma says the new COC met on January 2023 and Prime Minister Sitiveni Rabuka signed on the minutes of the meeting on June 29th 2022 where they had talked about increasing Saneem’s salary.

He says the COC did not have any issues signing 2 Deeds of Variation or Saneem getting salary reimbursement.

Sharma also says that there is no evidence that Saneem, without lawful authority asked for benefit and increase in salary and adds that it is nothing sinister as it is a request from an employee to an employer.

He further says there is no evidence of undue influence, noting that Fijian Elections Office Legal Manager Mesake Dawai testified Saneem at times favoured FijiFirst, but when presented with seven examples involving other parties, he acknowledged that Saneem was fair.

Sharma says Dawai acted with honour and took back his words because of evidence before the court, and adds that Saneem was within his statutory right to do what he did.

He says Saneem’s amended charges involves Section 136 of the Constitution which is in relation to remuneration and allowances of certain public office holders being determined by the President on the advice of the COC, but Saneem has nothing to do with the COC and the prosecution cannot imbue Section 136 to him.

Sharma also says that the salary issue is an employment matter and not a criminal matter.

He adds there are too many ‘hoo-haa’ and gaps and assumptions in the evidence presented by the prosecution.

While responding to the submission, Acting DPP Nancy Tikoisuva argued that the COC was not aware about the second Deed of Variation to Saneem's contract that allowed him to get the benefits.

She says Sayed-Khaiyum and Saneem are lawyers and they both interpret the law to suit their own benefit and signed the contract outside constitutional process.

She says this interpretation is dangerously flawed, unconstitutional and illegal.

Tikoisuva the second Deed was executed outside the legal process and Section 2 of the Constitution says anything contrary to the Constitution shall be null and void.

She also says that civil matter is not a defence in law and that ignorance of law is also not a defence.

Tikoisuva says that instead of going to Fiji Revenue and Customs Service, they went and executed the second Deed.

She says Sayed-Khaiyum admits to drafting the second Deed of Variation and says the effect was to give benefit clouded under tax relief.

The Acting DPP says there was no COC meeting for the additional benefit.

Tikoisuva says Saneem had written a letter to the Electoral Commission for an increase in salary so he knew the law.

She says Sayed-Khaiyum was reckless, knowing that there was no COC meeting and approved the benefit.

The State prosecutor says Saneem bypassed the proper process by going directly to Sayed-Khaiyum, stressing that the abuse lay in assuming they could act on their own while the COC was unaware of the additional clause.

She also says Dawai testified that Saneem favoured the FijiFirst Party in some actions and waived legal processes for them, and since he did it for one, he had to do the same for others.

Tikoisuva says the process in which allowance and benefits are set is in Section 136 of the Constitution but the defence says that benefits is not an allowance.

She asks then how does he get other benefits such as a phone.

Tikoisuva says the evidence proves that there is a case to answer.