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NFP MPs Suspension Update: Munro Leys to Mohammed Saneem: "You cannot, in interpreting the test for an auditor’s qualifications under the Decree, insert into the test words that do not exist." Read full letter below

4/2/2016

22 Comments

 
"You correctly state that under s. 26(2) of the Decree the accounts of a political party must be audited by an auditor certified by the Fiji Institute of Accountants. You incorrectly suggest that this means a person holding a certificate of public practice under s. 22 of the Fiji Institute of Accountants Act. We assume you have now worked out that there is no such thing as an auditor certified by the Fiji Institute of Accountants. The Institute does not certify “auditors”. It certifies “members” who are either provisional, licensed, affiliate or chartered accountants, certain of whom (we call them “CPPs” for short) must hold certificates of public practice. The (meaningless) reference to an auditor certified…[etc] in the Decree does not mean that only a CPP may audit the accounts of a political party. NFP argues that a member of APNR Partners, NFP’s auditors, holds an Institute-issued copy of a certificate saying he is a chartered accountant. Your interpretation of the phrase is no more or less correct than NFPs"

The Letter to the Registrar of Political Parties was sent by Munro Leys after 2pm on Thursday 4th February. The Memorandum of Advice together with the Letter to the Registrar was sent on behalf of the three MPs by an NFP official to the Speaker of Parliament at 3.15pm on Thursday 4th February - before the Speaker released her ruling that the three Members would be noticed that they would be suspended as Members of Parliament for 30 days - the duration of NFP's suspension.

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PictureNaidu
From Munro Leys to Mohammed Saneem

4 February 2016 Our ref M999-009 RKN:ik

Your ref
Mr Mohammed Saneem
Registrar of Political Parties and Supervisor of Elections
59-63 High Street
Toorak
SUVA
By hand delivery
By email msaneem@gmail.com


The Political Parties (Registration, Conduct, Funding and Disclosures) Decree 2013 (“Decree”)
Our client: The National Federation Party (“NFP”)

Your letter dated 1 February (“Letter”) and purported notice of suspension (“Suspension Notice”)
Introduction


1. NFP has handed to us your Letter and Suspension Notice for reply. We address each in turn below.

Letter

Qualifications of NFP’s auditors


2. You correctly state that under s. 26(2) of the Decree the accounts of a political party must be audited by an auditor certified by the Fiji Institute of Accountants. You incorrectly suggest2 that this means a person holding a certificate of public practice under s. 22 of the Fiji Institute of Accountants Act.

3. We assume you have now worked out that there is no such thing as an auditor certified by the Fiji Institute of Accountants. The Institute does not certify “auditors”. It certifies “members” who are either provisional, licensed, affiliate or chartered accountants, certain of whom (we call them “CPPs” for short) must hold certificates of public practice.

4. The (meaningless) reference to an auditor certified…[etc] in the Decree does not mean that only a CPP may audit the accounts of a political party. NFP argues that a member of APNR Partners, NFP’s auditors, holds an Institute-issued copy of a certificate saying he is a chartered accountant. Your interpretation of the phrase is no more or less correct than NFP’s.

5. You cannot, in interpreting the test for an auditor’s qualifications under the Decree, insert into the test words that do not exist. Other laws – for example the Trust Accounts Act, which sets the rules for trust account auditors3 – are explicit in requiring that only a CPP holder may conduct the audit. It is not clear what the Decree means, but you cannot hold NFP to a non-existent legal test.

6. Your Letter recites s.22 of the Fiji Institute of Accountants Act. That section does not deal with the question of who may audit the accounts of political parties. Your role is to interpret and apply s. 26(2) of the Decree. We refer you back to paragraph 2 of this letter. For the reasons above, paragraphs 7 and 8 of your Letter4 are irrelevant.

Purported decision to suspend

7. You have given notice to NFP to remedy its “breach” of the Decree under s.19(2). You have then purported to suspend NFP under s.19(3).

8. The power to suspend is exercised under s.19(3). That provision says that you may (emphasis added) suspend the registration of a political party to enable that political party to remedy the breach…In other words, it is a decision to be exercised in your discretion, to achieve a specified purpose. You do not have to suspend a political party.

9. As an accountable public officer, please explain:

(a) why you exercised your discretion to suspend NFP - clearly a decision to its detriment - without first giving it an opportunity to be heard on that decision, in accordance with the rules of natural justice

(b) why, given that the purpose of suspension is to enable [the] political party to remedy the breach, you thought that suspending NFP would achieve that. The power to suspend is not to punish. It is to enable compliance. Let us assume, for the purposes of argument, that you are right about the breach. NFP can remedy the breach just as easily when it is not suspended. So why did you suspend it? How would suspension “enable” NFP to remedy this particular breach?

10. What is of particular interest is that you were apparently advised on or about 16 December 2015 – more than six weeks before the date of your Letter – of the Institute’s concerns (valid or otherwise) about APNR Partners. Why were these concerns not drawn to NFP’s attention immediately, as natural justice would ordinarily require, to allow NFP to address them directly with you, or to allow NFP (if it chose) to take the relatively simple step of obtaining another audit?

11. Your reference of these facts to FICAC are noted and will be addressed separately.

12. Lastly, you advise that during the period of suspension NFP shall not be entitled to any of the rights and privileges specified under the Decree. We have searched but cannot find in the Decree any “rights and privileges” specified in the Decree for registered political parties. Accordingly please identify what “rights and privileges” under the Decree you believe NFP is no longer entitled to.

Suspension Notice

13. Most of the issues raised in the Suspension Notice are addressed above. However the Notice says that a party suspended under s.19(3) cannot operate, function, represent or hold itself out to be a political party. That prohibition does not exist under s.19. Please tell us why you claim this.

Conclusion

14. For the reasons above, we ask you to address the following matters to avoid an appeal to the High Court pursuant to s.30(1):

(a) please explain your reasoning for concluding that the s.26(2) words in the Decree, an auditor certified by the Fiji Institute of Accountants, mean “a person holding a Valid Certificate of Public Practice under s. 22 of the Fiji Institute of Accountants Act”

(b) please explain why you exercised your discretion to suspend NFP’s registration as a political party without first giving it the opportunity to be heard on that decision, particularly given that the matters giving rise to the suspension first came to your attention six weeks before your decision

(c) please explain why you believed, in the exercise of that discretion, that suspending NFP would “enable [it] to remedy the breach” you have specified in the Suspension Notice

(d) please explain:

(i) what “specified rights and privileges” are given to registered political parties under the Decree and
(ii) accordingly what NFP may or may not do while purportedly suspended

(e) please tell us why you say in the Notice that a suspended political party cannot operate, function, represent or hold itself out to be a political party. We cannot find any legal basis for this in the Decree.

15. We suggest that the correct steps for you to take are to:

(a) withdraw the purported suspension and

(b) bring to the attention of NFP your concerns about its audit in a reasonable and proportionate way (as s.16(1)(a) of the Constitution would appear to require). Whether NFP agrees or does not agree with what you say, it is a relatively simple matter for NFP, if it chooses, to obtain another audit, without the need for you to take sudden and precipitate action to suspend it.

16. Political parties do not exist for themselves or their office bearers. They exist to voice the political interests and concerns of their members, who are citizens of Fiji. To suddenly, disproportionately and unreasonably deprive the members of NFP of those rights is inimical to the democratic process and a breach of their political rights under s.23(1) of the Constitution. No doubt a person in your position understands this well.

Yours faithfully

MUNRO LEYS
Richard Naidu
Partner

*There seems to be some confusion about membership of “CPP(Fiji)”. There is no such thing as “CPP (Fiji)”.



From Munro Leys to NFP leader Biman Prasad:

MEMORANDUM OF ADVICE

Our ref M999-009 RKN:ik
Your ref

To
Dr Biman Prasad, Leader, National Federation Party

From
Richard Naidu

Date
4 February 2016


Purported suspension of NFP under Political Parties (Registration, Conduct, Funding and Disclosures) Decree 2013 (“Political Parties Decree”) – effect on the rights of NFP MPs in Parliament
Introduction

1. You have sought our advice on the above. In our view nothing that has occurred in recent days affects the rights of NFP’s MPs to take their seats in Parliament during the period of NFP’s purported suspension.
The legality of NFP’s suspension in the first place

2. We enclose a copy of our letter of today’s date to the Registrar of Political Parties and Supervisor of Elections. There is in our view some doubt whether NFP has breached the Decree at all and, even if it has, on the lawfulness of its suspension – but this advice assumes for these purposes that the suspension is lawful.
The Political Parties Decree

3. The rights of any MP to take his or her seat in Parliament flow from the Constitution and the Electoral Decree 2014. The Political Parties Decree does not restrict any of the rights of MPs of a party suspended for contravening the Decree (ie under s.19). Section 19(4) says that a suspended party is not…entitled to any of the rights and privileges specified under this Decree but there are no such rights (refer paragraph 13 of our letter to Mr Saneem). Even if it is claimed that such rights exist in the Political Parties Decree, none of these rights relate to whether or not an MP can take his or her seat in Parliament.

4. There is one gloss on what we say above, which is to be found at s.27(6) of the Political Parties Decree. Section 27 concerns the suspension of a political party which has committed an offence under the Political Parties Decree. In such a case, notwithstanding the suspension a National Federation Party 4 February 2016 2
person who is a member of a political party that has been suspended and is a member of Parliament, shall continue as a member of Parliament for the unexpired term.

5. That provision would tend only to reinforce the right of NFP’s MPs to take their seats in Parliament. If the Political Parties Decree expressly respects that right in the case of a party suspended for an offence against the Political Parties Decree, it must follow that the same right is respected in the case of a party suspended merely for an (alleged) contravention of the Decree (as NFP is). Constituents’ political rights

6. Finally, there is a perhaps obvious point that should not be lost in this debate. A Member of Parliament does not sit in Parliament for his or her own benefit. A Member of Parliament does so in service to those members of the public who voted for him or her (and subject to appropriate rules on Parliamentary behaviour, etc, which are not in issue here). To deprive an MP of a right to sit in Parliament deprives citizens of their political rights, including to have matters which are important to them aired by their political representatives in Parliament.

Conclusion

7. Accordingly:
(a) nothing in the Political Parties Decree – or in other legislation – restricts NFP’s MPs from taking their seats in Parliament because of the purported suspension of their party under s.19

(b) indeed the Political Parties Decree affirms, in more extreme circumstances of suspension, the right of suspended party MPs to take their seats and

(c) to deprive MPs of the right to take their Parliamentary seats would in any event deprive their constituents of their political rights, not a matter to be lightly undertaken.

Yours faithfully

MUNRO LEYS
Richard Naidu
Partner

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Mohammed Saneem to NFP: "You are suspended for 30 days"

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22 Comments
Chiku
4/2/2016 07:51:20 pm

First things first. The first thing is to determine whether Mohammed Saneen is a State official acting as an impartial empire or whether he is merely a proxy of Aiyaz Sayed Khaiyum. The answer will tell you where Saneen is coming from with his " interpretation" of the relevant legislation ( imposed by decree ).
The answer will also tell you the legal opinion on Saneen's suspension notice by Richard Naidu of Munro Leys is a case of casting pearls before the swine.

Reply
rajend naidu
4/2/2016 08:30:53 pm

Editor,
Here is a letter that would be of interest - by extension - to Fijileaks followers . Writing to The Age 5/02 Ray Pilbeam says " Germany's war-time treatment of Jews and others was also legal because Hitler made the laws. That does not make it right or moral".
( Ray was reacting to the Australian High Court's ruling that the detention of asylum seekers in off-shore detention centres, described by human rights groups as concentration camps, as lawful).
Who made the laws which has been used to suspend from parliament members of a political party elected by the people?
Sincerely,
Rajend Naidu

Reply
Thinker
4/2/2016 08:47:29 pm

Thank you Mr Naidu for standing up ti teach these two cent lawyers.

We need brave n smart Richard Naidu types in fiji

I told you Saneem that you need to pray harder, didnt I?

Here comes the father of legal education - run

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Suspended
4/2/2016 08:52:50 pm

When will the Government be suspended for not properly accounting for public funds.

Reply
Samjha
4/2/2016 09:38:10 pm

Dictatorships do not account for public funds. Public funds become the dictator's private fund for him and his cronies to use as they see fit.
That is exactly what happened under the Bainimarama - Khaiyum dictatorship.

Reply
Suspended
5/2/2016 12:21:58 am

Is there any way to get any international body to look at their wealth outside Fiji? They must be made to account for it.

Reply
Fools of Paradise
5/2/2016 03:06:16 am

This saneem no school , starts with "Warm regards" cheeky aye ?
then says 'Go to hell".
So who is telling you all this ? ASK
Your boss ? ASK
and you are the bitch , right ? because you are rejected lawyer and begged ASK for this job ..right ? Douche Bag.

FNP don't back out , High Court Independence is in question , but do the right thing , fight it death.

You guys know exactly whats going on . This is a totalitarian government. Because the fijian public voted them in because when you give Tax payers money FREE , you are stealing from hardworking tax payers to free loaders. FF guilty.

Reply
Dekho
5/2/2016 06:37:33 am

Richard Naidu of Munro Leys acting for NFP asks Saneen to please explain " why you exercised your discretion to suspend NFP". Allow me to explain. It's because that is what Aiyaz Sayed Khaiyum wanted. Saneen is acting for Khaiyum. He is not there to act in the public interest, or in the interest of good governance, or to ensure natural justice . Saneen is Khaiyum's hound dog. That's all he is. I hope my explanation makes it clear why Saneem PREFERRED to suspend NFP when clearly there was no compelling reason to do that as Richard Naidu's letter demonstrates.

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Vil
5/2/2016 01:59:41 pm

Yes, it is becoming increasingly clear that Saneen is a lap dog of Khaiyum.

I wonder how will they wriggle out of this one?

Meantime, those who tried to stand up to ASK are either in jail (Pita Driti); in asylum overseas (Roko Ului); or have been forced to resign from their ministerial appointments (Tikoduadua & Saumatua).

It is not a record to be proud of.

ASK is pushing people who disagree with him OUT, when he should be keeping them IN. It makes no sense.

I am comforted by the saying that : "Every dog will have its day".

God Bless Fiji



Reply
Naibono
5/2/2016 08:57:20 am

Advocate Naidu should challenge Saneems judgment in court. Writing directly to Saneem and creating gossip on social media only makes a circus



Reply
The Puppet Show...(Now On)
5/2/2016 10:14:04 am

The facts are there - we be the Judge!

The clown of this circus is the puppet SOE Saneem. And anyway, the Courts are a bigger circus - haven't you heard of 'Khaiyum Clauses' which bars our access to justice...??

Reply
Fiji First Party
5/2/2016 10:05:03 am

Richard Naidu makes sense. He talks of natural justice and touches on the very essence of the democratic process and on SOE’s discretionary powers on seeking a viable alternative rather than opting for the most extreme and severe form of punishment of NFP - by suspending them from our Parliament.

Whereas the SOE in his decision, as we can see, is narrowly confined to the dogma of the decree.

This same SOE in the instant of our ‘name chori story’ did not so strictly apply the dictates of the same decree. He illegally (without regard to the decree) unprofessionally and unethically registered Bainimarama and Aiyaz’s Chor (Theft) Party despite our very strong and lawful objections to the same.

This SOE is a Puppet and is playing politics.

Reply
Rajend Naidu
5/2/2016 12:38:36 pm

Editor,
Alleged Election Fraud : The Brazilian case
We learn from LAHT article ' Brazil's Rousseff Faces Probe of Re-election Campaign' ( Feb.5 ) that Brazil's Superior Electoral Tribunal on Thursday officially notified President Dilma Rousseff regarding a complaint accusing her of irregularities during her 2014 campaign for her second term.
The process which has the potential to result in Rousseff's ouster, was launched last year by the main opposition PSDB party, which accused the incumbent of assorted illegal practices during the 2014 contest.
The PSDB also presented evidence that could suggest that part of the $2 billion looted from State company Petrobras in a massive corruption scheme was used to finance her campaign.
The process also affects the Vice President Mchel Temer who was reelected on the same ticket and thus would be considered an accomplice in the alleged irregularities.
Yes, fraudulent elections happen and when you have a truly independent electoral body, as this case suggest Brazil has, then an independent probe is conducted .
Otherwise cheats cheat to win an election and get away with it.
There are many examples of the latter.
Sincerely,
Rajend Naidu

Reply
Tomasi Koroi
6/2/2016 10:19:49 am

Legal advise reads very good. But NFP lacks leadership and courage to act on the advice. They should claim their seats in parliament on Monday. They should demand this. Let the Speaker and Regime force them out. That will 3expose the nature of democracy we have. But I doubt if NFP will do this.

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King Rat
6/2/2016 11:28:27 am

The Fijian word for the lack of courage shown by the NFP as you point out is, 'lamu lamu'.

Same behaviour Frank demonstrated in November 2000 when he mowed down the cassava that the squatter Apenisa had planted on the slopes behind QEB

Reply
Vili
7/2/2016 03:20:15 pm

Will Apenisa be compensated?

Fiji First Party
6/2/2016 03:09:44 pm

Any government which has powers to ban any opposing political party - from performing its rightful role of representing its members in Parliament - cannot and call itself a ‘democratic government’.

It is clear - the pertinent Decree itself is anti-democracy. It is inconsistent with the fundamental philosophies (and spirit) of what entails liberal democracy and the Decree, surely is, an unjust law – which needs an urgent abrogation.

The pertinent Decree (as said before) “has been conceived by the evilest of the mind for the evilest of the purpose – to gain, retain and abuse Power.” Banning NFP is a very undemocratic –and glaring abuse of Power.

Come Monday the three empty seats in our Parliament would bewail the death of democracy in Fiji - yet again.

Reply
End of times
7/2/2016 11:02:55 am

Fiji first is behaving like FLP when it was in government in 1999. Drunk with power and doing unnecessary things to anger the population. Khaiyum is in a sense behaving like Mahen chaudhry when he was PM thinking he is untouchable and he can act with impunity. The way khAiyum is puppeteering Samneem Chaudhry junior rajen used to puppeteer FLP MPs especially his boy lekh ram.looks like FFP will also fall like FLP as it is becoming too even more arrogant by the day. It will die by its own hands like FLP did. Pride comes before fall.

Reply
Injustice
7/2/2016 07:11:22 pm

End of Times you cannot apply chaudhry situation to FFP coz FFP has Russian guns.

Reply
Chodri
7/2/2016 09:06:19 pm

Our Leader Chaudhary must be brought in now to mediate this dangerous impasse threatening democracy between this Aiyaz's government and the NFP because our Leader is very neutral - democracy / dictatorship -he can go both ways.

Reply
Spirit vs the Letter of Law
8/2/2016 10:04:03 am

It is true that the Political Parties Decree States that the accounts of a party should be audited by an auditor certified by the Fiji Institute of Accountants. But what should be more important is the "spirit" of the law rather than the "letter" of the law. What the law intended was that a person or persons auditing the account of a political party should be accredited and be a member of the FIA. Was this so in the case of NFP? The law may be faulty and it needs an an amendment but the intent is clear. Indulging in verbal gymnastics and technicalities for political point scoring is not very helpful.

Reply
Bahuki
11/2/2016 05:52:09 am

Authoritarianism is clearly overwhelming as shown by FijiFarce Party that would do anything to get their way, even if it means getting rid of some people to achieve that.

Reply

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