Blog Archives

COOK ISLANDS former Solicitor-General falls foul of Constitution of Fiji. Graham Leung's appointment as A-G fails to meet s56 (2-c) of 'ordinarily resident test requiring 2 year residency in Fiji before appointment as A-G'

29/10/2024

If it is established that Graham Leung's appointment is illegal, then his appointment of BARBARA MALIMALI is illegal. In any case, she should never have been foisted upon FICAC when she was under investigation.
He should also be investigated if he aided and abetted the arrest of Fiji's Finance Minister BIMAN PRASAD who was wanted by FICAC.

SECTION 56-2(c): Is Ordinarily Resident in Fiji for at least 2 (TWO) years immediately before being nominated:

Friday 25 March 2022: GRAHAM LEUNG is sworn-in with fanfare as new Cook Islands Solicitor-General:

8 November 2022: GRAHAM LEUNG dramatically RESIGNS as S-G

5 JUNE 2024: Graham Leung is appointed new Attorney-General of Fiji

Fijivillage quotes the Constitution relating to Leung's appointment but by omission or commission ignores to cite s56 that requires that the holder of the Attorney-General's Office should have been ordinarily resident in Fiji for two years prior to his/her appointment as Attorney-General

DO THE LEGAL MATHS: Leung was in the Cook Islands from March to November 2022, for a total of NINE MONTHS.
We don't know when he returned to Fiji. But his Immigration Arrival Records in the Fiji Immigration data will verify his return to Fiji.
Let us assume he returned to Fiji in the middle of November 2022.
November 2022 to November 2023 = 12 months
November 2023 + June 2024= 7 months
Total: 18 or 19 months.
Clearly, he was not entitled to be appointed the new Attorney-General of Fiji under s56 (2) (c) of the Constitution of Fiji
RESIGN, or better, Rabuka declare Leung's appointment null and void.
He cannot find refuge in s23(5) of the Electoral Act that states that an aggregate term of 18 months could be considered in particular circumstances.
"For the purpose of subsection (4) (c) a person shall only qualify to be ordinarily resident in Fiji for at least 2 years immediately before being nominated, if that person has been present and living in Fiji for an aggregate period of not less than 18 months out of the 2 years immediately before being nominated.'
In any case, there was no mention of 'residency test' in his appointment.
In Graham Leung's case, the Constitution overrides any Act.
We can't have two laws - one for the Attorney-General and another for
A-G - Atunaisi (A) and Ganpat (G) in Fiji
Fijileaks: We asked Leung for comments. He has not responded to us.

FARMERS BLOWING HOT UNDER THE COLLAR. Miracle or Maths Gone Wrong as PADRE Ratabacaca, convicted for sauna indecent sex assault, is Voted National Farmer of the Year. He learned to farm while in PRISON

24/10/2024

"Congratulations to Rev. Epeli Ratabacaca, President of the All Nations Christian Fellowship Church, for being named National Farmer of the Year. With 1.2 million cassava plants, 60,000 dalo, 35,000 rourou, and 542 pearl guava plants, his farming efforts are truly inspiring. Reverend Ratabacaca family have leased 33 acres from neighbouring Naloto Village land and hope to fully utilise it in the coming months."
VATIMI RAYALU, Minister for Agriculture and Waterways

MATHS OR MIRACLE? RAYALU, who did the MATHS, Finance Minister Biman Prasad? How can the Padre who leased 33 acres from neighbouring Naloto Villages, produce 1.20m cassava stems?
Surely, using basic maths, 1.20m cassava stems, divided by 8000 stems, will give the PADRE 150 acres of cassava.
Padre's land acreage is only 33 acres.
*Miracle (Mark 4.8) or Massaging MATHS Figures, driving FARMERS to blow steaming hot with anger under their collars as the convicted sauna sex assault Padre is voted the National Farmer of the Year.

PRESIDENT of Fiji must NOT be i-Taukei monopoly PLC. ROTUMANS, RATUS, and the i-Taukei ROGUES have graced the Government House. Time for an Indo-Fijian - Veteran Diplomat Amraiya NAIDU for President?

23/10/2024

Justice Jitoko

ORDER, ORDER!
The recently retired and highly respected President of the Fiji Court of Appeal Justice FILIMONI JITOKO (an old friend of ours) has been endorsed by the Rabuka Cabinet to replace Ratu Naiqama Lalabalavu as the SPEAKER of Fiji's Parliament

Meanwhile, Sitiveni Rabuka's CHAMBERMAID and NFP 'FICAC FUGITIVE' will dare not demand that an Indo-Fijian should be the next President of Fiji.
For he knows that Rabuka will hand him over to FICAC and he will end up in the adjacent cell to Frank Bainimarama.
In fact, if Wiliame Katonivere has been forced to withdraw his application to continue as President after Fijileaks* exposed the Macuata Tikina Holdings Ltd SHARE scam then BIMAN PRASAD must be forced to step down as Fiji's Finance Minister because of his own share scam in the Lotus Construction Fiji Ltd. He must be charged by FICAC.

The Living Legend of Fiji, Mr Amraiya Naidu

Amraiya Naidu, the new Permanent Representative of Fiji to the United Nations, presented his credentials to Secretary-General Kofi Annan today.

Prior to his current appointment Mr. Naidu was his country’s Permanent Secretary for Education, a position he had occupied since 1993. Between 1990 and 1993 he had served as Deputy Secretary for Education.

Mr. Naidu started his career in 1966 as a teacher of chemistry and mathematics, and later served as principal of three secondary schools. He was promoted as a Divisional Education Officer in 1988, and the following year appointed to act as Chief Education Officer.

Born in Fiji in 1941, Mr. Naidu attended his country’s Nasinu Teachers’ College and Andhra University in India, where he graduated with a Bachelor of Science degree. He is married and has two sons.

***************

In 2001 he was again appointed as Fiji Ambassador to United Nations. He continued in that role for 3 years. In 2004 he was posted to Canberra as Fiji’s High Commissioner to Australia. He retired from Fiji’s diplomatic service in June 2007.

This living legend of Fiji remains in high demand long after he retired. Naidu belongs to a rare breed of Fijians possessing the character, discipline and mindset to find time – voluntarily in his case – to contribute to the welfare of Fiji citizenry.

Since 2012, after taking time off to travel and relax, he was enlisted by the Then India Sanmarga Ikya (TISI) Sangam to chair Sangam College of Nursing’s Academic Board.

In 2017, Fiji’s President awarded him the Fijian highest Civilian honor ‘Companion of the Order of Fiji medal’. Naidu accredits that pinnacle of honour to the “unstinting support and countless sacrifices” of his life companion.

Two decades ago, our Founding Editor-in-Chief had called for 'Rotating the Vice-Presidency' but i-Taukei racists refused to share it with other races. Even Frank Bainimarama never saw it fit to appoint an Indo-Fijian as President. He appointed Jioji Konrote and Wiliame Katonivere as successive Presidents of Fiji. Now, we will get Ratu Naiqama Lalabalavu.

From Fijileaks Archive, 2 August 2015:

By

Fijileaks 'Bagehot'

It is time to look at the role of the Fijian President in the 2013 Constitution compared to the 1997 Constitution to think about how ‘we the people of Fiji’ have the duty to decide who will be elected to that position.

While thinking about it we should realize that the position of the President in the 2013 Constitution is now only ceremonial. That means, basically, opening Parliament, cutting ribbons, accepting credentials from diplomats of obscure countries with unpronounceable names, kissing babies and, perhaps as a necessary obligation, opening ablution blocks in rural areas. Admirable duties these are of course but, sadly, no longer very significant in the body politic. Particularly since the President can now only outline the policies and programmes of the government at the opening of each annual session of parliament (section 81 (4) of the 2013 Constitution), a provision missing from the 1997 Constitution.

Gone is the robust and substantive role that the President enjoyed under the 1997 Constitution. Gone is the proper and respectable position as head of state with important powers to take care of all the people of Fiji and, importantly, as the substantive commander-in-chief of the military. The President’s role, as far as the RFMF is concerned under section 81 (3) of the 2013 Constitution, is now only ceremonial. On the other hand, under section 87 of the 1997 Constitution, the President was actually the Commander-in-Chief of the military forces. With such statutory demotion, it is not really clear who can now actually command the military in a meaningful and statesman like way since the job of the Commander of the RFMF under the 2013 Constitution is only to exercise military executive command of the forces, being mainly in appointments, removals and disciplinary actions. This ‘executive’ job was also provided to the Commander in the 1997 Constitution but with two significant differences: in that Constitution, the Commander-in-Chief was the President who held his position as a substantive officer and therefore could meaningfully command the military; and any ‘executive’ command of the Commander could only be carried out subject to the control of the relevant Minister. Both clauses are now gone.

The inclusion of section 131 (2) in the 2013 Constitution (which came from section 94 (3) of the 1990 Constitution), makes the current position of the military forces quite interesting. By reading all the relevant sections together in the three constitutions of Fiji, 1990, 1997 and 2013, we can spot the vacuum created by making the position of the President merely ceremonial in regards to the RFMF. In trying to eliminate the problem created by Qarase for Bainimarama, the baby has been thrown out with the bathwater. Now no one really ultimately commands the military- certainly not the President and, it appears, also not the Commander, and not the Minister. In fact the Commander has a slight command edge over the other two officers of the state.

But back to the President: let Fijians choose a humble farmer or simple worker to be the President of Fiji. Clearly the person will need a certain level of literacy to be able to communicate with all the people of Fiji, especially when opening parliament, but we have so many highly intelligent people who have participated actively in public life, have sacrificed their personal needs for the public good and, yet, may not be formally educated. For so long we have had chiefs, military leaders and the hoi poloi of Fiji bidding for the position of President but now that the job is purely ceremonial, surely the hoi poloi can step aside to let an ordinary but capable citizen of Fiji become President? Especially someone who is not associated, even subtly, with any of the current political parties, including the government, so that the people can look forward to absolute fairness and impartiality from their next President.

People should put names forward of remarkable citizens who have done much for Fiji without accolades and fanfare or for selfish reasons. After all, next time round, parliament will decide who shall be President, not the elites.

People should not let the elites (whoever they are) manipulate and therefore ambush the ordinary people’s duty to elect their President from among their own ranks in light of the constitutional phrase - ’We the People of Fiji…'

USP STRIKE: VC PAL AHLUWALIA has outlived his 'Bula Welcome' and 'Goodwill' since his deportation and return. Now, he must RESIGN from USP and return to the new nest he is building in ADELAIDE, AUSTRALIA

22/10/2024

BUT, before he departs or is booted out, POLICE must interview him to establish how much he billed GLOBAL GIRMIT INSTITUTE to host the two-day international girmit* conference at USP.
Biman Prasad dished out $200,000, without calling a tender, to GGI. Prasad's wife is one of three GGI trustees.
The other two are Ganesh Chand and Hirdesh Sharma

AMAZING GRACE: The Ahluwalias' new abode 'Grace' in Adelaide

*So far, Ahluwalia has not responded to our questions nor has USP produced any invoice or receipts to account for the conference, and whether there was 'insider dealing' since Rajni Chand is an USP employee, and Ahluwalia was very close to Biman Prasad.

AUCKLAND, NEW ZEALAND: Hailed for 'engineering from outside the defeat of the tyrannical FijiFirst government'. Not to mention sending its leader and the Prime Minister Frank Bainimarama to PRISON

PAL AHLUWALIA's chum Biman Parasad failed to declare that wife Rajni Chand was a trustee of the Global Girmit Institute. He was facing sixteen counts of failing to disclose the link under the Political Parties Act 2013

BLUEPRINT FOR NEW PARTY AND DEFECTION, PAP STYLE. PAP must be aware how some of its high-profile MPs and Party Members roughed it out with SODELPA until Election Writ. 'Politics Is One Long Stab in Back'

18/10/2024

POLITICAL TRAITORS WELCOME: PAP embraces NINE (9) FijiFirst Party TRAITOR MPs without asking them to 'LEAVE FIJIFIRST PARTY NOW'

The nine FFP MPs include Aliki Bia, Mosese Bulitavu, Josaia Niudamu, Viliame Naupoto, Alipate Tuicolo, Ioane Naivalurua, Taito Rokomatu, Penioni Ravunawa, and Naisa Tuinaceva.

From Fijileaks Archive, 1 November 2022

* They are as follows:
Ratu Naiqama Lalabalavu
Ro Filipe Tuisawau
Inosi Kuridrani
Ratu Antonio Lalabalavu
Mitieli Bulanauca,
Peceli Vosanibola
Ratu Tevita Navurelevu
Jese Saukuru.
While confirming this at the People's Alliance Headquarters, Ro Filipe says they have been interviewed by People's Alliance and await their response. Ro Filipe says they could not reconcile the differences given the difficulties within SODELPA.
He says the report that resulted in Niko Nawaikula being imprisoned came from within a faction of SODELPA.

Fijileaks: It is also ridiculous for the two to boast about PAP. The reality is Lynda Tabuya had failed to cross the 5 per cent threshold with her old party and Sitiveni Rabuka, like a 'blind duna', was snaking around since losing the 1999 general election. SODELPA welcomed them in good faith and the reward - they tried to destory the party and are now in PAP. The ridiculous d'Hondt electoral system encourages party leaders to garner most votes, to carry their parties over the 5 per cent threshold and either into Government or Opposition. That is why Rabuka had most votes. It was SODELPA voters and other candidates who had shored up his votes.
One failed candidate, Dr Mere Samisoni, claimed that the two stole 5,000 of her votes in the Lami constituency, an allegation Tabuya denied

ONLY IN FIJI: We were shocked when the failed PAP candidate Ratu Naiqama Lalabalavu, the Tui Cakau, was appointed SPEAKER

CJ Gates, 'Electoral offences are properly classified as CRIMINAL. A wide range of obligations are placed under the Political Parties Act 2013'. We call on A-G Leung to remove Malimali so that FICAC can charge Prasad

17/10/2024

In parachuting Barbara Malimali in as the new FICAC Commissioner, Leung, with the assistance of the President of the Fiji Law Society Wylie Clarke (who whisked Malimali away from the clutches of FICAC investigating officers), has turned FICAC into the new ANIMAL FARM.
Who instructed Malimali to halt the charges against Biman Prasad?
FICAC investigators had spent months collecting incontrovertible evidence against NFP leader Biman Prasad, a political chum of Suva lawyer Richard Naidu.
Go elsewhere with your RUBBISH, Pio Tikoduadua. We insist that the Military under s131(2) of the Constitution is now our only hope to grab Biman Prasad by the scruff of his 'shirt collar' and hand him to FICAC.

Regarding Malimali's appointment while she herself was under FICAC investigation, we repeat what we told Prime Minister Sitiveni Rabuka and copied it to new Attorney-General Graham Leung:
'Its like appointing a paedophile suspect in charge of childrens nursey'*.

SECTION 131 (2) of the Constitution of Fiji.
*Our only hope to end this sordid, corrupt saga is for a joint military-police operation led by Brigadier-General Manoa Gadai, the Commander of the RFMF's Joint Task Force.

Fijileaks to FICAC and Attorney-General GRAHAM LEUNG
Count One
Statement of Offence

PROVIDING FALSE DECLARATION OF ASSETS, INCOME AND LIABILITIES: Contrary to section 24(1A) and 24(5) of the Political Parties (Registration, Conduct, Funding and Disclosures) Act No. 4 of 2013.

Particulars of the Offence

BIMAN CHAND PRASAD between 01 January 2015 and 31 December 2015, at Suva in the Central Division, as the Leader of a registered Political Party, namely the National Federation Party, provided a false declaration of assets and liabilities to the Supervisor of Elections by failing declare and provide information, namely that BIMAN CHAND PRASAD was a company Director in Platinum Resorts & Hotels Limited, a limited liability company duly registered with the Registrar of Companies in Fiji contrary to sections 24(1A) and 24(5) of the Political Parties (Registration, Conduct, Funding and Disclosures) Act 2013.

Count Two
Statement of Offence

PROVIDING FALSE DECLARATION OF ASSETS, INCOME AND LIABILITIES: Contrary to section 24(1A) and 24(5) of the Political Parties (Registration, Conduct, Funding and Disclosures) Act No. 4 of 2013.

Particulars of the Offence

BIMAN CHAND PRASAD between 01 January 2016 and 31 December 2016, at Suva in the Central Division, as the Leader of a registered Political Party namely the National Federation Party, provided a false declaration of assets and liabilities to the Supervisor of Elections by failing to declare and provide information namely that BIMAN CHAND PRASAD was a company Director in Platinum Resorts & Hotels Limited, a limited liability company duly registered with the Registrar of Companies in Fiji contrary to sections 24(1A) and 24(5) of the Political Parties (Registration, Conduct, Funding and Disclosures) Act 2013

Statement of Offence
ATTEMPTED TO PERVERT THE COURSE OF JUSTICE: Contrary to section 190 (e) of the Crimes Act 2009
Particulars of Offence

JOSAIA VOREQE BAINIMARAMA sometime between July 2020 and September 2020 at Suva in the Central Division, attempted to pervert the course of justice by telling Sitiveni Tukaituraga Qiliho, the Commissioner of Police of the Republic of Fiji to stay away from the USP investigations that was reported under CID/HQ PEP 12/07/2019.

State v Bainimarama - Judgment and Sentence [2024] FJHC 278; HAA016.2024 (9 May 2024) BETWEEN:
THE STATE
APPELLANT

and: JOSAIA VOREQE BAINIMARAMA
FIRST RESPONDEN
and
:
SITIVENI TUKAITURAGA QILIHO
SECOND RESPONDENT

"It was not right for you to tell the second respondent [Police Commissioner Sitiveni Qiliho] to stay away from investigating the alleged mismanagement of taxpayer’s fund at the University of the South Pacific by top senior officials, who appear to be citizens of Fiji. The second respondent was the Commissioner of Police. The second respondent’s brief as Police Commissioner was guided by section 5 of the Police Act 1965. It was mandatory for the second respondent to prevent and detect crimes and enforce the criminal law of the Republic of Fiji. The police were investigating the USP mismanagement of funds at the time.
The police had sought the Director of Public Prosecution’s assistance. He had recommended the caution interview of the suspects. By telling the second respondent to stay away from the USP investigation, you have in a sense effectively sabotaged the police investigation. To this day, the investigation had not been completed. Your action was inconsistent with the oath of your office.
Breach of the Public’s Trust. At the material time, the second respondent was the Commissioner of Police of the Republic of Fiji. By virtue of section 129 (3) of the Constitution, he commands the Fiji Police Force and is responsible for its administration, organization, deployment and its control, and in those matters, he is not subject to anyone’s control. He is the top police officer and it is his task to lead the police maintain law and order. By virtue of section 5 of the Police Act 1965, he leads the police in preserving the peace, protecting life and property, prevent and detect crime and to enforce the criminal law of this country. However, when he, on 15 July 2020, at Suva in the Central Division, directed the Director of the Criminal Investigations Department Serupepeli Neiko and Inspector Reshmi Dass to stop investigations into the police complaint involving CID/HQ PEP 12/07/2019, he was certainly abusing his office, which was an arbitrary act, prejudicial to the rights of USP. What he did was a direct violation of section 5 of the Police Act 1965 and as such, was a breach of the public trust in him.
(ii) By acceding to the first respondent’s request to stay away from the USP investigations reported in CID/HQ PEP 12/07/2019, the second respondent violated his constitutional independence as guaranteed by section 129 (5) of the 2013 Constitution.
In sentencing you [Bainimarama}, I am guided by section 4 (1) of the Sentencing and Penalties Act 2009, that is, to punish you in a manner which is just in all the circumstances; to protect the community; to deter others from committing similar offences and to signify that the court and community denounce what you did in Count No. 1. I start with a sentence of 6 months imprisonment. For the aggravating factor, I add 2 ½ years making a total of 3 years imprisonment. For all the mitigating factors, I deduct 2 years, leaving a balance of 1 year imprisonment. On Count No. 1, I sentence you to 1 year imprisonment.

*On the morning of Wednesday, 4th September 2024, as acting Deputy Commissioner, Francis Puleiwai had, after receiving legal advice, sanctioned that Biman Chand Prasad should be arrested and charged the following day (Thursday, 5 September) for multiple statutory declaration breaches under the Political Parties Act 2013. She was exercising her legal powers so the new FICAC Commissioner, Barbara Malimali, had no retrospective power to interfere or review the decision that was legally made to charge the Coalition government's Deputy Prime Minister and Finance Minister Prasad.

LITANY OF CHARGES against BIMAN PRASAD must be re-instated by FICAC. A further investigation must be launched to establish if Prasad and Sunil Chand used their nephew at HFC Bank to obtain Lotus LOANS

16/10/2024

*BIMAN PRASAD must be arrested and charged for failing to declare in his 2014 statutory declaration that his wife Rajni Kaushal Chand jointly owned two houses with him, that he had a 5% share in Lotus Construction (Fiji) Ltd, that he was co-director of Lotus (Fiji) and that he bought two villa units off-the-plan (12 March 2014) from his cousin Sunil Chand before the two formed Lotus Construction (Fiji) Ltd on 15 March 2014.

He must be arrested and charged for further lies and falsifications in his 2015 statutory declarations, including hiding from the voters and the general public that he was a Director of Lotus Tours & Transfers, a subsidiary company of Lotus Construction (Fiji) Ltd.
Barbara Malimali, Graham Leung, FLP society president Wylie Clarke and acting Chief Justice Salesi Temo should also be investigated whether they perverted the cause of justice on that infamous afternoon - 5 September 2024 at FICAC.
After all, Temo has jailed Frank Bainimarma for attempting to stop the investigation into the graft at USP. VC Pal Ahluwalia was one of the Police complainants.
FICAC was also planning to charge BIMAN PRASAD for failing to declare that his wife Rajni Chand was a co-trustee of Global Girmit Centre with Ganesh Chand and Hirdesh Sharma.
Prasad gave GGC, without tender, $200,000 to host the Global Girmit Conference at USP where his wife is a lecturer. VC Pal Ahluwalia was the keynote guest speaker. He has declined to reveal if the USP charged GCI for hosting the international conference.
Meanwhile, we reveal more charges that Biman Prasad must face arising out of his 2015 Statutory Declaration under the Political Parties Act relating to Lotus Tours & Transfers.

Sunil Chand

The NFP leader Biman Prasad failed to reveal his Directorship in Lotus Tours and Transfers (LTT). He failed to declare his proper shares in LTT.
Documentary evidence reveal he was heavily involved in LTT but deliberately chose NOT to reveal his links in the 2015 Declaration.

As we have established, Biman Prasad was NOT only a Shareholder but DIRECTOR of Lotus Construction (Fiji) Ltd and Lotus Tours & Transfers.
He blatantly lied in his 2015 Statutory Declaration and he must be CHARGED, for like all other party leaders, he was required by law to truthfully and completely declare all his shares and directorship.
We produce below evidence for FICAC to arrest and charge Prasad.
*He signed the 2015 statutory declaration on 28 January 2016 and documents reveal he was heavily involved with Lotus Tours since 2015.

*Incontrovertible evidence that he was aware of Lotus Tours & Transfers

Conflict of Interest: The Valuation Report for Lotus Tours and Transfers Ltd is clearly addressed to Krishil Kumar at [email protected].
Krishil Kumar was CREDIT OFFICER at the HFC Bank.
With his two uncles, he was also Director of Lotus Tours & Transfers

In its '2016 Lotus Tours & Transfers Ltd Business Proposal', the company was seeking for refinance of existing debts and additional funding for purchase of fleet for operation of car rental business from HFC Bank. The total debt subsequent to successful refinance and additional funding sought was stated at $802,500.
The total funding, the 'Business Proposal' claimed would be secured against the following securities to be pledged by the company and the Directors (Prasad, Chand and Kumar) as follows:
* 1st Registered Mortgage Debenture
First Registered Mortgage over Residential Property comprised in Crown Lease 12167, being Lot 25 on SO 1878, situated at Bulai Rd, Laucala Beach Estate, Suva, with current market valuation of $400,000.
First registered mortgage given by Biman Chand Prasad over residential property comprised in Certificate of Title 27032, being Lot 9 on DP 5799, situated at Matasawalevu, Dreketi, with current market valuation of $60,000.
First registered mortgage over vacant land comprised in Certificate of Title 42203, being 2 on DP 9474, situated at Naidiri Bay Road, Malomalo, Nadi, with current market valuation of $65,000.
First registered Bill of Sale over 17 second-hand motor vehicles with estimated current market value of $437,000 (Motor vehicle details to be provided in due course).
Unlimited guarantee from Lotus Construction (Fiji) Ltd
Unlimited Guarantee from Directors.

COMING OUT OF THE CLOSET: He only began to mention the shares on becoming Finance Minister and Deputy Prime Minister in Sitiveni Rabuka's Coalition government, 'Shares in Business/Companies - one third share in one and 50% share in another'.*

NEXT: We will examine the fraud and falsifications in his 2016 Declaration

GO, 'MY NFP PEOPLE', Tell TRUTH and RECONCILE with PAINFUL PAST. On becoming NFP leader in March 2014, Biman Prasad began filling out 'Truth' in his statutory declaration which did not RECONCILE with FACTS

12/10/2024

BHAGAVAD GITA OF PARLIAMENTARIANS: The Statutory Declaration under the Political Parties Act 2013 is similar to the Holy Book. Elected MPs take the oath of office and are required to declare truthfully and honestly all their assets, incomes, and liabilities. If caught lying, they face a fine of $50,000 and ten years in prison.
On 29 March 2014 Biman Prasad was elected NFP leader. On 28 July 2014, he filled out his first statutory declaration under the Political Parties Act. He lied that he was the sole proprietor of three houses. Prasad owned one only, and the other two he jointly owned with his USP lecturer wife Rajni Kaushal Chand.
We recently unearthed his connection with Lotus Construction (Fiji) Ltd.
He did not declare his link with Lotus (Fiji) nor his 5% share in the company that he was gifted by his cousin SUNIL CHAND.
Worst, while he vaguely declared he held $85,000 worth of shares (no identity of the company or entity), he did not declare that he was co-DIRECTOR of Lotus (Fiji). Under the Political Parties Act, he was required by law to declare his directorship.
It beggars belief that a former Professor of Economics at USP was not aware of it. How could he, when he had founded Lotus (Fiji) with Sunil Chand on 15 March 2014, and three days previously, on 12 March, he along with 18 investors (mostly Indo-Fijians living in Australia) had bought two off-the-plan villa units for $300,000 ($150,000 each).
Biman Prasad did not declare the two villa units in his statutory declaration. Hence began a systematic pattern of lying in the statutory declarations for the next ten years, from 2014-2024.
He was, therefore, rightly to be charged by FICAC until Barbara Malimali, allegedly assisted by a band of lawyers, prevented him from being arrested on 5 September 2024
We repeat: FICAC must arrest, charge, and present Biman Prasad before a court in Fiji. His version of 'truth' does not 'reconcile' with facts in his statutory declarations under the Political Parties Act
As we have pointed out in the past, the NFP provided Coupist Sitiveni Rabuka its support for him to become Prime Minister in 1994, and to rule for the next five years, under the racist and feudalistic 1990 Constitution of Fiji.
The NFP-SVT formed a coalition to fight the 1999 election under the newly promulgated 1997 Constitution but failed to win any seats, with Biman Prasad trashed by his FLP political opponents at the poll.
The NFP and its FIVE MPs only made it into Parliament because of the d'Hondt Electoral System in the 2013 Constitution of Fiji.
The majority of Indo-Fijians voted for FFP and Biman Prasad was trounced by Aiyaz Sayed Khaiyum in Prasad's northern stronghold.
His parroting for a Truth and Reconciliation Commission is borne from the fact that there were NO NFP MPs held hostage by George Speight.
For, in 1999 the party had failed to win any seats, including in the 2001 and the 2006 elections.
*The 2013 Constitution enabled NFP to enter Parliament with 5 MPs.

“We know that the Truth and Reconciliation Commission may be hard on some people. We also know that it will not solve every problem or resolve every grievance or hurt of the past. But we must begin this process. Only when we understand how we have been affected by our past can we, as a nation, work with confidence towards our future. I want to ask all members of NFP to support this process, to continue to support our government as we work to make Fiji better.”

BIMAN PRASAD must be arrested and charged for failing to declare in 2014 that his wife Rajni jointly owned two houses with him, that he had a 5% share in Lotus Construction (Fiji) Ltd, that he was co-director of Lotus (Fiji) and that he bought two villa units off-the-plan from Sunil Chand before the two formed Lotus Construction (Fiji) Ltd. We will continue with his other declarations later.

BIMAN PRASAD failed to declare in 2014 that his wife Rajni jointly owned two houses with him, that he had a 5% share in Lotus Construction (Fiji) Ltd, that he was co-director of Lotus (Fiji) and that he bought two villa units off-the-plan from Sunil Chand before the two formed Lotus Construction (Fiji) Ltd

We will continue with his 2015-2024 declarations later

The Political Parties Act required from Biman Prasad, his wife and children (if any) the following:

$4,500 CONSIDERATION and Transfer of 45% shares by SUNIL Chand to BIMAN PRASAD in 2015. Whether at today's value or at the value in 2015, Prasad defeated FRCA of thousands of dollars in Capital Gains. RESIGN.

11/10/2024

BIMAN PRASAD has committed multiple criminal acts under the Political Parties Act 2013 in his statutory declarations from 2014 to 2024, and also as Director of Lotus Construction (Fiji) Ltd and Lotus Tours & Transfers

Manoa Gadai

SECTION 131 (2) of the Constitution of Fiji.
Our only hope to end this sordid, corrupt saga is for a joint military-police operation led by Brigadier-General Manoa Gadai, the Commander of the RFMF's Joint Task Force. The NFP leader Prasad will be at the party's annual convention in Sigatoka.
FICAC is compromised under the new Commissioner Barbara Malimali.

$747,000 owed to FRCA (Salus Populi- To People of Fiji). In today's terms, we estimate that Biman Prasad's failure to declare the true realised Capital Gains from the transfer of 45% of shares in Lotus (Fiji) from Sunil Chand valued (at 2024 Market Value) estimated at $18m, with Sunil Chand's cost base of estimated $1.4million. The calculated realised capital gain of $18m-$1.4m) = $16.6m against consideration of $4,500 for the transaction. This transaction potentially defeated FRCA of Capital Gains Tax of $747,000.

BIG VILLA COST LIE: During the opening ceremony of 'Westfield Villas', one of the two directors Sunil Chand claimed that it cost him $4million to build the 28 villa units at Legalega, Nadi.
The total cost was $6,456,501. Sunil Chand only contributed $1,128,608.The Australian Indo-Fijian investors, $1,500,000. Pacific Hotels and Resorts Ltd, $2,709,924.. Lotus (Fiji) obtained ANZ Bank Loan of $1,126,989.
Total: $6,465,501
The Co-Director BIMAN CHAND PRASAD did not contribute a single cent.

While shifting through Lotus Construction (Fiji) Ltd files, we stumbled upon an e-mail from Krishil Kumar, a nephew of Biman Prasad and Sunil Chand. Kumar had witnessed the formation of Lotus (Fiji) and later became a shareholder with his uncles in Lotus Travels company, a subsidiary of Lotus (Fiji). He was returning the Transfer of Shares certificate to Prasad after having submitted it to ANZ Bank for loan.
We wonder if the 45% transfer of shares to Biman Prasad was made to strengthen applications for loans from ANZ and HFC banks?

*The FICAC has powers to investigate and prosecute breaches under the Crimes Act of 2009, Electoral (Registration of Voters) Act No. 54 of 2012, Political Parties Act No. 4 of 2013, and the Electoral Act of 2014.

BIMAN PARASAD did not disclose in his statutory declarations that he was one of two directors (the other his cousin SUNIL CHAND) of Lotus Construction (Fiji) Ltd, and that he had been gifted 5% shares in the company on 15 March 2014. He was still Professor of Economics at the University of the South Pacific.
He prolifically lied in his statutory declarations for the next ten years until he became Finance Minister in the Coalition government.

On 12 March 2014, Biman Prasad bought two villa units off-the-plan from his cousin Sunil Chand worth $300,000 ($150,000 each). Three days later, on 15 March 2014, the two formed Lotus Construction (Fiji) Ltd to build 28 units (Westfield Villas) in Nadi. Prasad never contributed a single (CENT or DOLLAR) but was made a 50% shareholder in Lotus (Fiji) Ltd.

In 2016, Prasad and his wife Rajni Kaushal Chand sold their Burerua St property to Lotus (Fiji) for merely $550,000. He never disclosed in his statutory declarations that his wife was joint owner of the Burerua St property.
The couple transferred the property on 19 January 2016 with a reported market value (on 9 July 2015, some 7 months before the transfer) of $2,815,000 (end value) for declared value of $550,000.
In return, Lotus (Fiji) paid Prasad's CGT and other debts, including his ANZ bank loan.
*Further, Sunil Chand gave Prasad's wife 2 Units worth $300,000 in Westfield Villas. Also, Rajni Chand was granted a lease for the term of 99 years plus of Westfield Villas, effective from 13 August 2018 (rent of $320 per annum).

As we revealed previously, the Burerua property was sold for $550,000 in exchange for Lotus (Fiji) to clear the couple's bank loan, pay their Capital Gains Tax, and for Rajni Chand to get 2 units in Westfield Villas, Legalega, Nadi.
Worst, Biman Prasad never declared in his statutory declaration that Rajni Chand owned two villas worth $300,000 or that she jointly owned the Burerua St property.
*He must be arrested, charged, and SACKED as Finance Minister and Deputy Prime Minister

Fijileaks to FICAC: Here are two counts to start with against Prasad
Count One
Statement of Offence

PROVIDING FALSE DECLARATION OF ASSETS, INCOME AND LIABILITIES: Contrary to section 24(1A) and 24(5) of the Political Parties (Registration, Conduct, Funding and Disclosures) Act No. 4 of 2013.

Particulars of the Offence

BIMAN CHAND PRASAD between 01 January 2015 and 31 December 2015, at Suva in the Central Division, as the Leader of a registered Political Party namely the National Federation Party, provided a false declaration of assets and liabilities to the Supervisor of Elections by
failing declare and provide information namely that BIMAN CHAND PRASAD was a company Director in Platinum Resorts & Hotels Limited, a limited liability company duly registered with the Registrar of Companies in Fiji contrary to sections 24(1A) and 24(5) of the Political Parties (Registration, Conduct, Funding and Disclosures) Act 2013.

Count Two
Statement of Offence

PROVIDING FALSE DECLARATION OF ASSETS, INCOME AND LIABILITIES: Contrary to section 24(1A) and 24(5) of the Political Parties (Registration, Conduct, Funding and Disclosures) Act No. 4 of 2013.

Particulars of the Offence

BIMAN CHAND PRASAD between 01 January 2016 and 31 December 2016, at Suva in the Central Division, as the Leader of a registered Political Party namely the National Federation Party, provided a false declaration of assets and liabilities to the Supervisor of Elections by
failing to declare and provide information namely that BIMAN CHAND PRASAD was a company Director in Platinum Resorts & Hotels Limited, a limited liability company duly registered with the Registrar of Companies in Fiji contrary to sections 24(1A) and 24(5) of the Political Parties (Registration, Conduct, Funding and Disclosures) Act 2013.

One is lost for words that the NFP leader, Deputy Prime Minister, and Fiji's Finance Minister, was once a Professor of Economics, Accounting, and Statistics at USP.
His declarations under the Political Parties Act relating to shares in companies, and directorship, are so vague and elusive that a faint hearted investigator would have given up after a few hours of inspecting the declarations.
First, we thought the 'poor chap' was just hiding the true nature of his wealth, assets, land, shares and directorship from the megalomaniac Aiyaz Sayed Khaiyum but now we suspect he had other compelling reasons, and he has to explain to FICAC.
We were, however, determined from the moment we got hold of his declarations, from 2014 to 2024, to forensically go through and lay bare the irregularities in his declarations.
In his declarations he has a notorious slap-dash streak of simply stating, 'Shares in Business, Value$ - 85,000', 'Shares in Business/Companies-85,000, estimated total value as 31/12/2015', 'Shares in Business/Companies, 2 companies. Value$: One third (33% share in company 1 (and 50% share in another). No where has Prasad specifically mentioned that he has 50% shares in Lotus Construction (Fiji) Ltd. He merely states, 'Lotus Construction Ltd'. As we know, Lotus Construction (Fiji) Ltd is the sister company of Lotus Construction (Australia) Ltd. Sunil Chand owns Lotus (Australia).

The 33% share in 'Company 1' evaded us for days but in the past 24 hours, we finally made a major breakthrough and can reveal that he owns 33% shares with Sunil Chand and his nephew Krishil Kisan Kumar in Lotus Tours & Transfers Ltd. When the company was formed his nephew was still employed with the HFC Bank but was the principal contact for Lotus Tours & Transfers Limited.
*The company was formed on 5 September 2015 by Lotus Construction (Fiji) Ltd, the owners of Westville Villas in Nadi. Biman Prasad and Sunil Chand have 50% shares each in Lotus (Fiji). It started operations in May 2016, to cater for tourists coming to Fiji.

In its '2016 Lotus Tours & Transfers Ltd Business Proposal', the company was seeking for refinance of existing debts and additional funding for purchase of fleet for operation of car rental business from HFC Bank. The total debt subsequent to successful refinance and additional funding sought was stated at $802,500.
The total funding, the 'Business Proposal' claimed would be secured against the following securities to be pledged by the company and the Directors (Prasad, Chand and Kumar) as follows:
* 1st Registered Mortgage Debenture
First registered mortgage given by Biman Chand Prasad over residential property comprised in Certificate of Title 27032, being Lot 9 on DP 5799, situated at Matasawalevu, Dreketi, with current market valuation of $60,000.
First registered mortgage over vacant land comprised in Certificate of Title 42203, being 2 on DP 9474, situated at Naidiri Bay Road, Malomalo, Nadi, with current market valuation of $65,000.
* First registered Bill of Sale over 17 second-hand motor vehicles with estimated current market value of $437,000 (Motor vehicle details to be provided in due course).
Unlimited guarantee from Lotus Construction (Fiji) Ltd
Unlimited Guarantee from Directors.

RAJNI CHAND: One STEP behind in Her Husband's 'UMBRELLA DEALS'

"IT'S JUST A PHOTO'. No Attorney-General Graham Leung, 'It's not just a photo' of Turaga, John Rabuku and Barbara Malimali having a jolly good time. Go to basic law textbook on 'Perception and Fair-Minded Observer'

10/10/2024

A PICTURE TELLS A THOUSAND WORDS

It is just shocking how low some of the lawyers have stooped since the Coalition government came to power on one vote.
Graham Leung was in the forefront of preaching to us and the international community on the sorry state of law in Bainimarama-Khaiyum's post 5 December 2006 Coup in Fiji.
In October 2008, Fiji Sun* lawyers Suruj Sharma and Steven Stanton were so scared of reprisal that they were not willing to approve the publication of our Editor-in-Chief's legal opinion piece (see below; he was at the time a regular Opinion Columnist) in the Fiji Sun.
The late Fiji Sun publisher Russell Hunter (27 October 2008):
"Suruj and Stanton say NO on recusal story - not because they think it's wrong but because they fear the court."

Commodore Frank Bainimarama and Justice Davendra Pathik applying holi powder to each other in March 2008 at the Indian High Commissioner’s residence in Suva while the Qarase and Others v Bainimarama and Others case was still in progress before him and the acting Chief Justice Anthony Gates and Justice John Bryne.
Photo source: Fiji Television Ltd

Justice Pathik, good-natured Holi* celebration, and the question of apprehended bias and recusal in the High Court

By VICTOR LAL

"I want to dispute the interim Attorney-General Aiyaz Sayed-Khaiyum’s warning to the media that he would not tolerate any contempt of court and comments on the recent judgment and anybody bringing the judiciary or the administration of justice into contempt will be called to account for their actions. I presume he knows better as a student of law that the conduct of the judges and their judgments are open to scrutiny once a court has delivered a judgment. His constant threats to the media only reinforce “the all-too-common tendency to view the attorney-general and his department as no more than the law firm that is always on call to serve the interest of the political party that is in power at the time.” The A-G, despite his political role as a supporter and advisor to the government, is meant to wear an apolitical hat in his parens patriae role as guardian of the public interest. The judiciary and the media are also guardians of the public interest."

A judge chides a senior lawyer in a recusal case. Another judge questions the role of a fellow judge in a deportation case. The fellow judge complains about that judge to an acting superior judge. But what about the non-judge, who wants answers from all the judges on a particular judge’s behaviour – in this case, that of Justice Davendra Pathik at the holi celebrations that took place at the residence of the Indian High Commissioner in March of this year.

Let me state my case at the very outset. I am not, and I repeat with a capital R, casting any aspersion on Justice Pathik’s character or his suitability to be a High Court judge. I first encountered Justice Pathik nearly 30 years ago when I was briefly a court reporter, and he was a magistrate in the Suva courts. However, as a newspaper columnist, I have received endless questions about the legal position on the fear of apprehended bias regarding Justice Pathik’s behaviour on that joyous and religious occasion.

The occasion referred to is the colourful and joyous holi party at the residence of Prabhakar Jha, the Indian High Commissioner to Fiji, on 29 March 2008. The Fiji Television captured and relayed to the general viewing public Justice Pathik and interim Prime Minister Commodore Frank Bainimarama celebrating holi together at Mr Jha’s residence. Now, the same public wants to know whether Justice Pathik should have disqualified himself from writing the Qarase-Bainimarama judgment because his conduct at the holi festival has given reasonable rise to an apprehension of bias.

How should one respond? Before responding, I want to dispute the interim Attorney-General Aiyaz Sayed-Khaiyum’s warning to the media that he would not tolerate any contempt of court and comments on the recent judgment and anybody bringing the judiciary or the administration of justice into contempt will be called to account for their actions. I presume he knows better as a student of law that the conduct of the judges and their judgments are open to scrutiny once a court has delivered a judgment.

His constant threats to the media only reinforce “the all-too-common tendency to view the attorney-general and his department as no more than the law firm that is always on call to serve the interest of the political party that is in power at the time.” The A-G, despite his political role as a supporter and advisor to the government, is meant to wear an apolitical hat in his parens patriae role as guardian of the public interest. The judiciary and the media are also guardians of the public interest.

In his fifth edition of Media Law (2008) Geoffrey Robertson QC, who successfully argued the Chandrika Prasad case before Justice Gates, writes on the issue of scandalising the court: “Scandalising the court was invented in the eighteenth century to punish radical critics of the establishment, such as John Wilkes [In the context of 18th-century politics it was an attempt to protect Lord Mansfield from reasoned criticism of his oppressive judicial behaviour towards Wilkes and other critics of the Government]. Despite its apparent breath, scandalising the court should not prevent criticism of the judiciary, even when expressed in strong terms. “Justice is not a cloistered virtue” a senior Law Lord (Lord Atkin, Ambard v Att-Gen for Trinidad and Tobago, 1936), once said, and comment about the legal system in general or the handling of particular cases once they are over sometimes deserves to be trenchant…Scandalising the court is an anachronistic form of contempt. Lord Diplock (Secretary of State for Defence v Guardian Newspapers Ltd (1985) has described is as “virtually obsolescent in the United Kingdom” and it has not been used here for 60 years.”

I want to state my case as follows. Imagine a scenario where Justice Pathik, while writing his judgment, along with acting Chief Justice Anthony Gates and Justice John Bryne, was forced to ask himself: “Don’t I know the Commodore from somewhere?” The answer would have been, “Yes, Your Honour, from the Holi celebration where Fiji TV captured you and the Commodore exchanging coloured powder”.

So, what should his Honour have done? He should have, I want to submit humbly, based on AWG Group Ltd (formerly Anglian Water plc) and another v Morrison and another ([2006] EWCA Civ 6) Court of Appeal, Civil Division (Lord Justice Mummery, Lord Justice Latham and Lord Justice Carnwath) 20 January 2006, considered stepping down from the case. And if he had refused to step down, Justices Gates and Bryne should have decided what course to take to resolve the matter.

If we are to accept the “Morrison Principle”, Justice Pathik should have, in my humble submission, recused himself from hearing the case and writing up his judgment. As the three judges in Morrison ruled, disqualification of a judge for apparent bias was not a matter of discretion, and, in a case where the principle of judicial impartiality was properly invoked, inconvenience, costs and delay did not count.

In Morrison, the question arose, “Don’t we know each other from somewhere?” In that case, the trial judge, Justice Evans-Lombe was reading into a case on the eve of the trial when he realised that he knew one of the claimant’s proposed witnesses, one Mr Jewson. Justice Evans-Lome’s family had known Mr Jewson’s family for many years. Their children were friends, and they had attended dinner parties and played tennis together. The judge immediately informed the parties. In response, the claimant decided not to call Mr Jewson to give evidence. Notwithstanding the claimant's decision, the defendant asked Justice Evans-Lombe to withdraw.

Justice Evans-Lombe refused, as Mr Jewson was no longer being called as a witness. He considered the delay, disruption, and additional costs of finding a new judge. The defendant appealed. Although there was no suggestion of actual bias or that Justice Evans-Lombe had any personal interest in the litigation's outcome, the defendant argued that there was the “real possibility of apparent bias.”

Lord Justice Mummery said that disqualification of a judge for apparent bias was not a discretionary matter. Inconvenience, costs and delay did not count in a case where the principle of judicial impartiality was properly invoked. That was because it was the fundamental principle of justice at common law and under Article 6 of the European Convention on Human Rights. If, on an assessment of all the relevant circumstances, the judge was automatically disqualified from hearing the case, the conclusion was that that principle either had been or would be breached. In the unfortunate circumstances of the present (Morrison) case, the judge should have recused himself.

In Weber v The Queen (1994), the basic test for disqualification on the ground of apprehended bias was as follows: “Whether, in all circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the trial judge might not bring an impartial and unprejudiced mind to the resolution of the question.” The test has been described a “double might test” – a possibility, not a probability, of bias.

The rationale is that no person shall be a judge in his or her own cause and that it is important to maintain public confidence in the fairness and impartiality of the judicial system. The legal question and debate is whether Justice Pathik’s conduct at the Indian High Commissioner’s residence crossed the line into impermissible indications of bias.

In Pinochet (No 2), the House of Lords unanimously held that one of their brethren, Lord Hoffman, who had sat and determined R v Bow Street Metropolitan Magistrate, Ex parte Pinochet Ugarte (Pinochet No 1) was automatically disqualified from hearing the case because of the apprehension of bias. The House of Lords was prepared to automatically assume bias from Lord Hoffman’s relationship with Amnesty International, one of the interveners in the proceedings. This assumption of bias amounted to a departure from precedent.

It is worth pointing out that Pinochet had put the British judiciary in the glare of national and international public attention. Like all high-profile cases, lawyers and legal academics engaged in a prediction game, stating which judges will rule in favour of General Augusto Pinochet and which judges might go against him. A similar scenario was being played out in Qarase-Bainimarama case, and I thought it might be 2:1, Justice Gates for Qarase and Justices Bryne and Pathik for Bainimarama.

Lord Hoffman had not disclosed his connection with Amnesty International in the Pinochet case. He was merely a director of Amnesty International; in fact, he was a director of Amnesty International Charity Ltd, he was not even a member of Amnesty International itself, although his wife was in the Press and Publicity section of Amnesty International’s International Secretariat.

The Pinochet judgement regarding Justice Pathik is also relevant, albeit tangentially, in the Qarase-Bainimarama case. We know from the University of Fiji’s official website that both the Pathiks are represented on the University’s Council but on behalf of the Arya Pratinidhi Sabha of Fiji, one of many stakeholders in that university. Justice Pathik was appointed last year as director of the University of Fiji’s Suva campus. But what does the Pathiks’ connection with the University of Fiji relate to the Qarase and Others v Bainimarama and Others case?

I would argue that the apprehension of the “Pinochet bias” test is relevant in the present case because in March President Ratu Josefa Iloilo was appointed the first Chancellor of the University of Fiji. In delivering his key address at the first graduation ceremony held in Lautoka on 28 March, the President said he was honoured to accept the position adding that the new University held promise for Fiji as the nation strives to position itself in a rapidly globalising knowledge society.

“I am honoured to be the first Chancellor of our University of Fiji, thank you for this honour, and my appreciation to you for such a dignified and splendid installation ceremony. Ratu Josefa was also awarded the first honorary doctorate of the University. Like the “powdering ceremony” at the Indian High Commissioner’s residence, the links of both the Pathiks and the President to the University of Fiji could, arguably, have given rise to the fear of apprehended bias in the present case. After all, all the legal arguments before the High Court were about the President's constitutional role before and after the 2006 coup.

In Pinochet, the British Law Lords attacked their colleague Lord Hoffman, who had failed to declare his and his wife's links with Amnesty International. In their written judgement, the Law Lords gave their detailed reasoning for overturning a ruling by a previous panel of Law Lords, including Lord Hoffman, which had denied the former Chilean dictator immunity from prosecution for his crimes against his opponents.

One of the Law Lords, Lord Hope, said: “In view of his links with Amnesty International as the chairman and a director of Amnesty International Charity Limited he could not be seen to be impartial. There has been no suggestion that he was actually biased. He had no financial or pecuniary interest in the outcome. But his relationship with Amnesty International was such that he was, in effect, acting as a judge in his own cause.”

Another appeal judge, Lord Hutton, said: “I consider that the links between Lord Hoffman and Amnesty International, which had campaigned strongly against General Pinochet and which intervened in the earlier hearing to support the case that he should be extradited to face trial for his alleged crimes, were so strong that public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand.”

Lord Browne-Wilkinson, who led the appeal hearing, stressed that Lord Hoffmann was not guilty of any bias but said that the appearance of absolute impartiality had to be maintained. They “reluctantly” agreed with General Pinochet's legal team, who argued that Lord Hoffmann’s links to Amnesty had given rise to “a real danger of bias” in the hearing.

As I have indicated above, I am not suggesting that the links between Justice Pathik and Ratu Iloilo with the University of Fiji are wrong. Still, in the eyes of the law, I would humbly submit it raises the question of the fear of apprehended bias. I am equally aware that Justice Pathik refused to recuse himself in another case brought against him by the NGO activist Angie Heffernan. She had applied to recuse Justice Pathik from hearing the case she had brought against Justices Byrne and Gates. In Justice Pathik’s extempore ruling, he had stated the application was “frivolous to say the least and was a clear case of abuse of process of the Court”.

In 2001, I argued that Justice Daniel Fatiaki, later Chief Justice (and now under suspension), must recuse himself from hearing the case brought by the CCF against the President following the 2000 coup. Justice Pathik should have done the same humbly. I am surprised that Qarase’s legal team had not entertained the idea of Justice Pathik’s recusal after Fiji TV aired the holi celebration, which clearly shows the judge and the commodore “powdering” each other in an amicable manner in the presence of other guests, which included the interim Attorney-General Khaiyum, a fourth defendant in Qarase and Others v Bainimarama and Others.

In 2008, the Fiji Court of Appeal and the Supreme Court were also confronted with the apprehended bias test in Gates v Takiveikata; State v Takiveikata [2008] FJSC 16; CAV0015.2007S & CAV0016.2007S (24 July 2008). This time it was about what conversation took place between Justice Gates, who had jailed Ratu Inoke Takiveikata following the mutiny trial, and the Brodies (Donald and Margaretha Brodie) at a cocktail party at the French Embassy on Bastille Day on 14 July 2004. The Brodies claimed in their affidavits that Justice Gates had told them he was going “to put him away” – Ratu Takiveikata.

In his affidavit of 21 December 2004, Justice Gates acknowledged that a conversation had occurred between him and the Brodies at the French Embassy. However, he explained the conversation: “We exchanged pleasantries, the details I do not now recollect. I did not say anything about the conduct of the case by the defence to date, nor about any pending applications. Nor did I express a view on “"a form of traditional Fijian trial” or as to any punishment I was minded to pass in the event that Rt Inoke were to be convicted. It was Mr. Brodie who raised the topic of Rt Inoke’s trial. He asked whether charges Rt Inoke faced were serious. I said he faced several different charges but the courts had in the past considered such offences as serious. Much would depend upon the facts of the case and how the evidence unfolded I said. I then left.”

Both the Fiji Court of Appeal and the Supreme Court ruled in Ratu Inoke’s favour on the issue of apprehended bias, with the Supreme Court endorsing the Court of Appeal’s position, which had ruled: “For judicial bias to result in a retrial, the test has been formulated by the High Court of Australia recently in Antoun v The Queen [2006] HCA 2, 80 ALJR 497. This Court relied on that case in its decision in the application to adduce further evidence; further counsel for the appellant and counsel for the State agreed that it formulates the proper test. Antoun was a case of alleged bias by the trial judge in dealing with a submission of no case to answer. We again set out two passages from judgments delivered in the High Court. Hayne J stated at p18: ‘The principle to be applied in determining these appeals is not in doubt. If a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unbiased mind to the resolution of the question the judge is required to decide, the judge is disqualified from trying the case’.”

In Hefferman’s challenge, Justice Pathik claimed that there were only two grounds for his recusal: one, that his appointment was unconstitutional, and two, his age. But in this case, I would argue, it is another, and a far more powerful one: a picture tells a thousand words at the Indian High Commissioner’s residence.

Justice Pathik might ask: who is the “fair-minded and informed observer”? The answer, in my humble submission, is the television viewer (in possibly hundreds), who religiously followed the hearings on Fiji TV, and is acutely aware of the questions and interjections from Justice Pathik during the legal arguments before him and his fellow brother judges, and who witnessed the “holi powdering” event on Fiji TV.

I rest my case on the “Morrison and Pinochet” precedents of recusal, supported by the rulings in Gates v Takiveikata on the “fair-minded and informed observer” test. 25 October 2008

<<Previous