Fiji Labour Party Leader Mahendra Chaudhry after this afternoon's Fiji Court of Appeal ruling. Mahendra Chaudhry has confirmed to Fijivillage in the last hour that he will remain as the Leader of the FLP although he cannot contest next month’s elections. Chaudhry said while he knows that he cannot go for a parliamentary seat, he will lead the party to the September polls. When asked by Fijivillage on whether he sees this as a wise move as he will lead the party with people knowing that he cannot go into parliament, Chaudhry said this is the strategy based on the assessment of what their supporters want. We asked him on whether there is a standby parliamentary leader if they win the elections as Chaudhry cannot take up the position. He said the decision will be made later. Source: Fijivillage News, Thursday, 14/08/2014
Fiji Labour Party leader Mahendra Chaudhry's appeal against his conviction have been dismissed and his sentence varied by the Court of Appeal in Suva today. In handing down its judgment, the appeals court affirmed Chaudhry's conviction and other orders in his initial sentence following his conviction for breaching the Exchange Control Act in April this year. A fine initially imposed on him however has been reduced to $F1million. The court said the initial fine of $F2million was excessive. On Chaudhry's appeal against his conviction, the court said there was lack of merit in the 10 grounds that was presented. "We reiterate our view that we expressed earlier regarding the proviso to section 23 (1) of the Court of Appeal Act (Cap.12) that there is no substantial miscarriage of justice in the conviction of the appellant as there was sufficient evidence to convict him," the judgement said. The ruling means Chaudhry would not be eligible to contest the forthcoming election. Addressing the media afterwards, Chaudhry declined to comment on the ruling saying he needed time to go over the judgment. He also says he remains the leader of the FLP and is expected to issue a statement later. Justice Suresh Chandra, Justice Salesi Temo and Justice Chandrasiri Kotigalage presided over today's seating. Source: Fijilive, 14 August 2014.
By VICTOR LAL and RUSSELL HUNTER
Perjury in False Affidavit, Abuse of Office, and Aiding and Abetting Perjury
To summarize, Justice Goundar observed in Chaudhry v State  FJHC 1229; HAM034.2011 (25 July 2012):
“The applicant says he later found out that a former editor of the Fiji Sun obtained his confidential tax details from FIRCA and released it to Victor Lal, a former Fiji journalist residing overseas. Victor Lal published those details in anti-government websites.”
We have demonstrated that we never published Mr Chaudhry’s tax details in any anti-government websites but in the Sunday Sun dated 24 February 2008, including the first tax story in the Fiji Sun, on 15 August 2007.
1: We therefore call upon the Director of Public Prosecutions to investigative whether Mr Chaudhry committed the offence of “perjury in a false affidavit”.
2: We call upon the Director of Public Prosecutions to investigate whether Mr Chaudhry’s legal representatives in offering his affidavit to the Fiji High Court are also guilty of aiding and abetting the offence of perjury in a false affidavit, for it is abundantly clear that we did not publish Mr Chaudhry’s tax details in any anti-government websites.
3: We request the Director of Public Prosecutions to establish on what grounds the original letter tendered from one Harbhajan Lal dated 9 September 2004 to FIRCA from Haryana in India was withheld [if it was] and a new letter from Delhi Study Group dated 12 October 2004 substituted in Mr Chaudhry’s affidavit before Justice Daniel Goundar in the Fiji High Court. The “Harbhajan Lal Letter” of 9 September 2004 states the money was collected in Haryana and part of it was transacted through the Indian Consulate in Sydney, Australia. Harbhajan Lal wrote from Haryana:
“Respected Chaudhry Saheb, Nameste. We are hale and hearty here and please accept our good wishes. I received your letter. You have asked for details of the funds. You may recall that when you were here in the year 2000, we had formed a committee, which requested you to leave Fiji and stay in Australia since the situation in Fiji was not safe and you were not secure there. The committee also assured you that it would collect funds for your settlement in Australia. Lakhs of people from Haryana including traders, businessmen, landlords and non-resident Indians contributed heavily for the cause. The amount was pouring in for three years, which was sent to you from the year 2000 to 2002. The total amounting to nearly AUD fifteen laks was sent to you with the help of Government of India through its Consulate General in Sydney. We sent AUD 503,000/- as first instalment in the year 2000. In 2001, AUD $486,890/- was sent and then in 2002 AUD $514, 149/- was sent.”
The “Delhi Study Group Letter” states, “This is to confirm that funds were collected in New Delhi and other parts of India, including NRI's (Non-Resident Indians) to assist Hon'ble Mahendra Pal Chaudhry, Former Prime Minister of Fiji in 2000-2002.”
5: We call upon the Director of Public Prosecutions to ask Mr Chaudhry who transferred the money from India – Delhi Study Group based in New Delhi or Harbahajan Lal in Haryana, India?
6: We request the Director of Public Prosecutions to establish whether Mr Chaudhry and Nalin Patel, in presenting to FIRCA the letter from Harbhjan Lal, whose content was materially false [re his enquiring the details of the funds etc] –Chaudhry (and Nalin Patel) committed a criminal offence under Fiji’s tax laws by offering a false document to FIRCA, namely the Harbhajan Lal letter.
7: We request the Director of Public Prosecutions to investigate the Suva accountancy firm of G. Lal & Co, Mr Chaudhry’s delegated tax agent to deal with FIRCA in 2004, to establish whether it was aware of the inconsistencies in the Harbhajan Lal-Chaudhry correspondence regarding the $2million, and whether the accountancy firm also had in its possession the Delhi Support Group letter dated 12 October 2004.
8: We request the Director of Public Prosecutions to establish whether Mr Chaudhry and Nalin Patel submitted Harbhajan Lal’s letter knowing its content was false in material respects to prevent FIRCA from pursuing the original source of the funds in Mr Chaudhry’s Australian bank account.
9: We request the Director of Public Prosecutions to investigative whether Mr Chaudhry, in presenting the Tax Amnesty submission to the Cabinet in September 2007 for endorsement, might have abused office as Interim Finance Minister and direct line manager of Fiji Island Revenue and Customs Authority (FIRCA), to benefit himself, and to escape any future criminal prosecutions for submitting late tax returns between 2000 and 2003. We have documentary evidence that in August 2007 Mr Chaudhry still owed FIRCA $57,000 in tax debt, due to be paid on 9 August 2007. His own $57,000 could have fitted into insufficient advance payment or even late payment amnesty.
10. We therefore request the DPP to establish whether Mr Chaudhry had taxes or returns outstanding and paid during the amnesty period he had ordered and hence gained avoidance of penalties, and if so, then a case for Abuse of Office as Finance Minister and line manager of FIRCA could be made against him.
11: We call upon the Director of Public Prosecutions to plead with the Fiji High Court to expunge the patently false claims made against us in Chaudhry v State  FJHC 1229; HAM034.2011 (25 July 2012) – re that we published Mr Chaudhry’s tax details in anti-government websites. In conclusion, we leave you with the words of the great English judge, the late Lord Denning in King v Victor Parsons & Co  1 WLR 29, 33-34:
“The word 'fraud' here is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or his agent such that it would be 'against conscience' for him to avail himself of the lapse of time. The cases show that, if a man knowingly commits a wrong (such as digging underground another man's coal); or a breach of contract (such as putting in bad foundations to a house), in such circumstances that it is unlikely to be found out for many a long day, he cannot rely on the Statute of Limitations as a bar to the claim: see Bulli Coal Mining Co v Osborne  AC 351 and Applegate v Moss  1 QB 406. In order to show that he 'concealed' the right of action 'by fraud', it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed it and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he keeps it secret. He conceals the right of action. He conceals it by 'fraud' as those words have been interpreted in the cases. To this word 'knowingly' there must be added recklessly': see Beaman v ARTS Ltd  1 KB 550, 565-566. Like the man who turns a blind eye. He is aware that what he is doing may well be a wrong, or a breach of contract, but he takes the risk of it being so. He refrains from further inquiry least it should prove to be correct: and says nothing about it. The court will not allow him to get away with conduct of that kind. It may be that he has no dishonest motive: but that does not matter. He has kept the plaintiff out of the knowledge of his right of action: and that is enough: see Kitchen v Royal Air Force Association  1 WLR 563.”
The limitation statute’s aim is to prevent citizens from being oppressed by stale claims, to protect settled interests from being disturbed, to bring certainty and finality to disputes and so on. These are, as legal commentators have pointed out, laudable aims but they can conflict with the need to do justice in individual cases where an otherwise unmeritorious defendant can play the limitation trump card and escape liability.
We call upon the Director of Public Prosecutions to ask Mr Chaudhry which of the two letters – Harbhajan Lal or Delhi Study Group – is the lie – as they both can’t be genuine. Apart from the false accusations against us in his affidavit, the contents of the Harbhajan Lal letter dated 9 September 2004 does not accord with his bank statements from the Commonwealth Bank of Australia which he offered to FIRCA.
In our humble submission we beg the Director of Prosecutions to call upon the Fiji High Court to waiver the statute of limitation for prima facie there is evidence in the “Harbhajan Lal” letter that Mr Chaudhry obtained a favourable decision from FIRCA (an oversight on the part of FIRCA tax officers) through alleged fraud – the contents of the Harbhajan Lal letter does not square with his Australian bank statements.
Moreover, although we do not have a copy of Mr Chaudhry’s affidavit cited by Justice Goundar (despite requests for one from the Director of the Public Prosecutions) we call upon the Director of Public Prosecutions to examine the contents of both the Harbhajan Lal and the Delhi Support Group letters. If there are glaring disparities in the two letters than Mr Chaudhry must be deprived of the statute of limitation for the “fraud”, if any on his part, would be a continuing “fraud” since 2004 when he first offered Harbhajan Lal’s letter and now the Delhi Study Group letter in 2012 to explain away the $2million is his Australian bank account.
VICTOR LAL and RUSSELL HUNTER, 4 September 2012;
By VICTOR LAL
Fiji Sun, August 11, 2006
Fiji Labour Party needs leadership change
In another country, the Leader of the Opposition after loosing a parliamentary election for the second time in his political career might have gracefully stepped down. Even if the leader lost with a razor-thin minority, it is never prudent for him to cling on to the leadership. Such a practice is disdainfully frowned upon in most democratic systems, except in Africa, where dictatorial leaders hold on to party leadership in the hope of capturing power at the next election.
On the other hand, if the twice-defeated party leader in a western-style democracy refuses to relinquish control, he is humiliatingly forced out of the Opposition office through a ‘palace coup’ by one or some of his colleagues, supporters, or by a potential challenger.
Why should the Fiji Labor Party change its leader? Firstly, Mahendra Pal Chaudhry had his chance in 2001, and now again in the 2006 general election, to wrest political control of the nation from the Laisenia Qarase-led SDL party, but has failed.
This should be sufficient ground for him to take a parliamentary back seat, and let another Fiji Labor Party parliamentarian take the helm.
As his deputy Poseci Bune indicated during the campaign, there are parliamentarians in the party who have the clout and the experience to even become Prime Minister.
Secondly, I still believe that it was a strategic blunder on the part of Mr. Chaudhry to have boycotted Parliament for a long spell over the issue of the allocation of Cabinet portfolios following the 2001 elections.
I pleaded with him to be visibly and vocally present in Parliament while continuing to pursue his legal case but it was to no avail. After all, his new found coalition partner Mick Beddoes, had stepped in and did a sterling job as Opposition leader.
Mr. Chaudhry’s entire political posture on the land issue, despite his genuine concern for the Indo-Fijian tenant farmers, was a potential vote loser among the Fijian voters.
It would be no exaggeration to suggest that its Coalition partner [Party of National Unity] PANU felt the full brunt of the Fiji Labor Party’s posturing on the land question at the ballot box.
The SDL was able to privately persuade the Fijian voters that PANU would not hesitate to ‘sell’ the landowners in a post Chaudhry-led government.
What other explanation can be put forward to explain why PANU was trounced in its own backyard in Ba and other western constituencies?
Cynics will attribute it to the politics of preference sharing and the electoral system.
Thirdly, despite being frequently described as a wily and cunning old political fox and one of the shrewdest of political operators in the country, I think Mr. Chaudhry miserably failed to take the Fijian pulse and gauge the political tempo of the 2006 election.
I was surprised that, having secured the Indo-Fijian communal seats through last-minute deals with the National Federation Party, he again popped up in the midst of electioneering to explain the alleged frauds and malpractices in terms of race i.e. that there was a sinister plot to disenfranchise the Indo-Fijian voters.
In the minds of many Fijian voters, he stamped an image of being a closet ‘Indo-Fijian nationalist and racist’, a charge that was frequently hurled at his political opponent and rival, Mr. Qarase.
In view of the dramatic shift in population where Fijians are now a majority race in the country, it is very important for any non-Fijian political leader to pitch at the Fijian voters, even if it means ‘betraying’ a part of the Indo-Fijian constituents. Elections, after all, are about winning, and Mr. Qarase played his cards very cleverly and strategically.
For example, once he forcefully made the point that Fiji was still not ready for an Indo-Fijian Prime Minister, his view, even if it was construed as racist, was relegated to the political backburner.
Mr. Chaudhry did not have the same fall back opportunity. He still needed the Fijian voters to make up the winning numbers.
Worse, by speaking the counterfeit sudh (standard) Hindi, the Fiji Labor Party failed to reach the 30 per cent of Fijians who speak Fiji Hindi.
These are just some of the reasons why I personally think it is time for Mr. Chaudhry to honorably relinquish the party leadership.
And if he refuses to go, well, it is up to those parliamentarians with clout and experience to become the next Prime Minister to come out of his political shadow.
Leaders and supporters come and go but the party has a life of its own.
There is nothing stopping Mr Chaudhry from becoming the elder statesman of the party that he helped found in 1985 with many visionary and multi-racialist Fijians.
The Fiji Labour Party blunderingly placed all its political eggs in one basket: it calculated that if it won at least 30 seats, and PANU and UPP their share of seats, it would go on to form the next government.
It was also hoping that the leader of the National Alliance Party, Ratu Epeli Ganilau, was going to win his seat until the NFP disclosed its preference against the paramount chief.
It also seems likely that the Fiji Labor Party had expected that Commodore Frank Bainimarama’s frightening and threatening statements might just persuade a sufficient number of Fijian voters to swing the results in the Fiji Labor Party-UPP-PANU’s favour.
I had thought otherwise, that the Commodore’s intervention in politics would backfire on the Fiji Labor Party.
Why does the Fiji Labor Party need a new leader? There are other indisputable reasons.
This was the last general election where race really mattered. In 2011 the Fijians will be the majority of the voters, and fully groomed in democratic politics. For this reason, the Fiji Labour Party will have to broaden its outlook, and cannot rely on Indo-Fijian voters in the Open seats to win future elections.
It will need a leader who has a ‘clean slate’ and preferably speaks the Fijian language (there are many Indo-Fijian parliamentarians who are fluent in Fijian).
It must also stop clinging to the politics of land to win votes.
I also think the NAP should spend the next five years building up a multi-racial platform, and if need be, replace the Fiji Labour Party as a truly genuine multi-racial party.
Over the years, Fijians from outer islands and other areas of Fiji have migrated to these areas, and the SDL ‘secret agents’ had done preparatory election homework by routinely attending funerals, church meetings, weddings, solis etc, and were able to exploit demography and democracy to their electoral advantage.
Most commentators, including the Fiji Labour Party, were too busy concentrating on the displaced farmers from Labasa, while some parties were exploiting their misery for political purposes.
When his own political obituary is written one day, Mr Chaudhry’s Fijian political rivals will sorely miss him: his towering and controversial presence on the political stage has so far welded the taukei Fijians into one political unit.
His presence has suppressed the politics of tribalism and regionalism so rampant on the continent of Africa, where their own ‘Chief Lutunasobasobas’, after expelling or marginalising the Asians (Indians) in their midst, are tearing their countries apart as they vie for political, economic, and military supremacy.
The Fiji Labor Party needs a complete political makeover if it is to win the next general election.
It needs to attract significant taukei Fijian political ‘kai vatas’ of its own to achieve that goal.
And the Indo-Fijian farmers will have to realise that in the rapidly changing demography they, and not their political representatives, will ultimately pay a price if they leave the decision on the land question in the hands of their new chosen Fiji Labour Party Members of Parliament.
The taukei Fijian landowners magnanimity and patience will finally run out on the politics of land leasing.
And any new Fiji Labor Party leader must begin his leadership on that cautionary note.