Wednesday, June 15, 2011

Malicious Prosecutions against Tuisolia and Jalal cost Fijian taxpayers in excess of FJD$2 million

Posted on Raw Fiji News - 15 June 2011


End of 4 current Prosecutions and Appeals in 3 Courts and Law Fare as a form of harassment against Sakiusa Tuisolia & Imrana Jalal
Tu Saki and Imrana at his village
Ratu Sakiusa Tuisolia, a former Deputy Permanent Secretary in the PM's office, CEO of Airports Fiji Limited (AFL) and President of the Fiji Rugby Union (FRU), is celebrating in Manila after he was finally discharged from his last pending court case in Suva by the High Court, on Wednesday morning, 8 June 2011.  The DPP withdrew by filing a nolle prosequi.
Saki and his wife Imrana Jalal, a human rights lawyer and democracy advocate, have been the targets of multiple false, sham city council and criminal charges, instituted by Bainimarama's military regime, to frustrate, silence, discredit, publicly humiliate and financially bankrupt them.  Imrana is well known for meeting Frank, together with Suliana Siwatibau and Angie Heffernan, a few weeks before the 2006 coup, and warned him that his actions in threatening a coup, were treasonous and illegal. She also told him this at a Fiji Rugby Union board meeting at the Coral Coast in 2004, when she and he were both on the Board. At that time, Frank had tried to persuade her to give him a legal justification for removing the democratically elected government. Imrana flatly told him that what he was proposing was treason. He then went to other members of the legal fraternity, who gave him what he wanted – a dubious and shallow justification, one with long term, horrendous consequences – that the promise of promoting multiracialism and eliminating corruption was sufficient to justify a military coup and long term military government. Frank and Aiyaz Khaiyum, (and unnamed others well known to them both) also hold Imrana partially responsible for the consistent documentation of human rights abuses during 2006-2010, which have been widely disseminated internationally. Her prosecution was a salutary warning to other human rights activists to stop their activities, and they did. For a long while anyway.
Saki's prosecution could have been just about anything – from just being Imrana's husband; to the military perceiving him as a Qarase appointee (never mind that Qarase had overruled the PSC's (led by Chairman Sakeasi Waqanivavalagi) recommendation that Saki be promoted to Permanent Secretary, Prime Minister's Office, in late 2002, and reappointing Jioji Kotobalavu, prompting Saki to leave and join AFL); to winning the Fiji Rugby Union Presidency after Frank resigned as President in a huff, when the FRU board refused to sack an FRU staffer that Frank demanded be sacked, without the rules of natural justice applying (what Frank would see as a classic liumuri); to Saki (as President of FRU) inviting the subsequently expelled New Zealand High Commissioner, HE Michael Green, to officiate at an international rugby match between Fiji and NZ Maoris while Frank sat in the stadium as "PM", slighted and fuming. Or perhaps, Frank's paranoid mind, just saw Saki as a future threat of some sort? Paranoid delusion is a common malady of dictators.
On 8 June 2011, the DPP withdrew the last remaining Count 8 against Saki, DPP v Tuisolia,  in a restaurant related Suva City Council (SCC) charge in the High Court,  with a 2 year imprisonment possibility. Saki had been charged with an extra offence in addition to the 7 Counts ($20 offences), that he and Imrana had faced together, as directors of their company, Bottomline Investments Limited (BIL), which owned the Suva based restaurant, Hook & Chook.  Such cases are never commenced in the High Court. Yet these minor charges ended up in 2 separate hearings and trials, and many appearances for permission to travel, and eventually, in three levels of courts in Suva, including the Court of Appeal.
Saki was charged,  in Count 8, for not informing the SCC that he was selling the restaurant and for missinforming a public official.  Saki was to face trial on 20 June 2011 in Suva and was dreading his scheduled return to Fiji on 13 June, because of the possibility of being slapped with new sham charges.    The Count 8 charge was defective in the first instance, because in reality, there is no law that requires people to inform SCC when they are selling their businesses.  The charge was framed by FICAC, initially, with the intention of convicting and imprisoning him. Yet FICAC had earlier used the same Notice of Sale of the restaurant to prevent Saki and his little son Roma, from leaving Fiji at Nadi Airport in December 2009. One arm of FICAC did not know what the other arm was doing.
On 2 June 2011, the DPP's appeal against Saki and Imrana in the Court of Appeal,  DPP v Jalal & Tuisolia(Criminal Appeal No. AAU0055/10) on the 7 counts of SCC related charges for illegally operating their restaurant and Health Act matters, was also abandoned. The appeal was filed by the DPP in July 2010, immediately after Imrana and Saki were fully discharged on the 7 council charges in the High Court.  This case is famous for causing the sacking of Magistrate Mary Muir, for questioning FICAC on the legality of the charges and its power to prosecute it since it was non-corruption related.  However, SCC has finally admitted last week that it had given Saki provisional approval to open and operate the restaurant in March 2008, and that the restaurant became fully compliant with SCC and health requirements.  This fact was fully explained to FICAC, right from the start, but it deliberately ignored this, to fulfill its own illegal agenda. When Capt. Aca Rayawa of FICAC was made DPP, he "transferred" the SCC  to the DPP's office,  and took further personal conduct of the matter, but allowing the unfortunate Seini Puamau to prosecute, whilst he sat in the wings during the trial.
On 30 June 2011, FICAC's appeal case in the Court of Appeal, FICAC v Tuisolia, (Criminal Appeal No. AAU 0097/10) against Saki's AFL corruption case win was also abandoned.  Saki, who was unceremoniously displaced as AFL CEO in December 2006, on false corruption allegations, had been fully acquitted in the High Court by Justice Thurairaja on 3 November 2010, after a unanimous decision  of 'not guilty' by the Assessors.  Saki had faced 6 charges of fraudulent conversion and missuse of his AFL company credit card.  The highlight of the case was when the two key state witnesses (senior AFL accountants), gave evidence in favor of Saki, essentially stating  that he was not involved in any fraudulent or improper conduct, that he had maintained proper financial records and was transparent.  They also added that they were granted immunity by FICAC to give false statements to implicate him.  This, despite FICAC going out of its way and disposing of millions of dollars in wasted tax payers funds, to rig the evidence and witnesses, to implicate Saki and convict him with the intention of getting him imprisoned at any cost. Nor should it be forgotten that Saki was originally sacked from AFL by Frank personally after the 2006 coup, for reasons related to a "Special Audit" of AFL, by the Auditor General.  The Audit was initiated with the consent of the AFL Board and CEO in response to arising false and baseless allegations of widespread corruption in AFL by opponents.  The Audit subsequently revealed no fraud or impropriety on the part of Saki, the Board or any company employee (Saki was informed of this at his first FICAC interview). In desperation, without rhyme or reason, Frank, Aiyaz (and other unamed but well-known persons) and FICAC, searched for an option to charge Saki with and directed that four additional audits of AFL be done in the hopef finding some incriminating evidence about Saki that would stick. Serendipity led them to his company credit card – nothing to do whatsoever with the Special Audit which Frank used to sack Saki. The allegations were that official corporate expenses in the credit card accrued by Saki were deemed to be personal.  So much for those who defend the regime's malice.
Last month, the DPP also withdrew the fresh charges against BIL, DPP v Bottomline Investment, the company that owned the restaurant, which the DPP had filed (by Captain Aca Rayawa – now sacked as DPP, and involuntarily discharged from the military) in a fit of pique when Capt. Rayawa lost the initial 7 charges against Imrana and Saki in their personal capacities as Directors of BIL, in the High Court. The new case was being prosecutred in the Magistrate's  Court. When Capt. Rayawa failed to secure convictions against Imrana and Saki personally, he was instructed to pursue the company as a corporate entity. In this way,  it was hoped, that eventually,  the military regime and Aiyaz would secure a conviction against the Managing Director of  BIL, Saki.
So 4 pending cases in all 3 levels of court have fallen by the wayside in the last four weeks, thankfully for Imrana and Saki.  It has been a long and hard  road, especially given the constant possibility of bias by some handpicked judges. Saki and Imrana were extremely fortunate to competent, strict rule of law Sri Lankan Judges, who gave them both a fair hearing and trial. The presence of international human rights observers at the SCC hearing no doubt enhanced the possibility of a fair trial. Imrana's role as an international human rights lawyer and known human rights defender, meant that whatever happened to Imrana and Saki would naturally be the subject of wide discussion in the international human rights legal and activist communities. Both were unsubtly and  obviously, victims of 'lawfare', a military strategy, designed to mount and pursue falsified criminal charges, at all costs, against targetted people and regime critics, to silence them and ruin them financially, even if there is a strong possiblity of losing. In normal times they would be able to recover their legal fees and other related costs, including travel and communications, in excess of FJD $350,000, in a civil suit of malicious prosecution. However,  a Decree designed to prevent this has been issued by the military a while ago. Like many other people whose cases have concluded or are ongoing, Imrana and Saki have faced the full brunt of the illegal regime's vindictiveness, victimisation and abuse of the judicial system. However,  they have survived, with smiles on their faces.  Their fight was a one sided affair in which they were pitted against Frank and Aiyaz's regime, which had mobilised two arms of the government's legal  machinery (DPP and FICAC), backed by millions of dollars of tax payers funds to convict and imprison them at any cost. That the unwholesome Aiyaz Khaiyum should disingenuously and with utter guile suggest  that the wins by Imrana and Saki show that  the legal system and judiciary is "independent" ignores the complete violation of the rule of law and travesty of justice displayed by the prosecution, at the behest of Frank and his sattrap, Aiyaz Khaiyum.   which should pursue a prosecution without a personal interest in the outcome…..
Saki and Imrana both live in Manila now, with 7 year Roma, and Imrana works for the Asian Development Bank (ADB). Saki is doing consultancy work for ADB as well, and both are focused on rebuilding their fractured lives and family.  They have attributed their victories to several factors.  First, the sustained effort and brilliance of their defence team from R. Patel lawyers, the two brothers, Devanesh and Pravesh Sharma, whose legal costs were worth every cent.  Second, was their own effort in researching the cases and esnuring widespread knowledge of what was happening to them .  Third, was the support from their families, real friends (they lost a few along the way), sympathisers and the local and international human rights community.  Fourth, was their faith in divine justice.
However, they clearly carry scars of the five year battle and will probably do so for many years.  These included 4 years of worry, humiliation, loss of reputation and respect, stress, sleepless nights and a feeling of helplessness. They have lost many "friends" along the way for various reasons, but primarily because Imrana and Saki were on the government's 'hate list'.  These friends, they have happily discarded. They have not forgotten what its like to live with fear and worry about potential imprisonment, not to mention the mounting legal bills, that accompanied every court appearance and hearing.  So what is the estimated cost to the taxpayers of Fiji of the combined investigation and prosecutions by SCC, FICAC and DPP of Imrana Jalal and Sakiusa Tuisolia? The legalities involved the following:
  • Several Judges and Magistrates adjudicating over 4 years of appearances, mentions, bail applications, hearings and trials; involving several SCC officers, several FICAC and DPP lawyers, senior FICAC investigators, a large number of police officers, public relations officers (FICAC) in serving charges, conducting investigations, making appearances, attending trials and hearings; and immigration officers told to stop travel;
  • The countless trips to Nadi by FICAC and the military to investigate at AFL, involving several weeks of investigations and interviews of large numbers of AFL staff (loss of work hours by staff of state owned AFL);
  • The several days of investigation at FIRCA by the military attempting to find tax irregularities in Saki and Imrana's tax files, which eventually led to the "resignation" of a FIRCA officer because he could not find anything potentially unlawful;
  • The personal investigation by Capt. Aca Rayawa himself at SCC, attempting to force and threaten the SCC lawyer to file restaurant  charges (she was eventually sacked as well);
  • The transport to and accomodation in Nadi, to serve documents on Saki at the airport to prevent he and Roma leaving in December 2009;
  • The transport to Nadi and acomodation of 4 FICAC officers plus Capt. Aca Rayawa at expensive Denarau to serve documents on Imrana on New Year's Day 2010 at 8am, conveniently allowing FICAC officers and Aca to party on New Year's Eve at Denarau at tax payers' expense;
  • The personal involvement of the now discredited DPP himself, following them to Nadi on New Year's Eve and the costs to the State of that, (since when does the DPP himself supervise the service of any charge documents, let alone minor SCC offences? Picture the "DPP" serving "traffic summonses" personaly  and you will get an accurate picture);
  • Several full, some opposed, hearings for bail for Imrana and Saki (12), some with state and private witneses, including two full hearings for Saki to travel abroad for work in the High Court;
  • The special night court hearing in February 2008 to specially arraign Saki for the AFL matter, with full media attendance summoned by FICAC's elegantly heeled female public relations officer;
  • Three hearings on the SCC charges in the High Court on legal matters and the validity of the charges, two which required Imrana to travel back from Manila for hearings;
  •  One full 5 week trial with witnesses in the High Court  on the AFL matter, with the judicial and courts costs accrueing; and
  • The specific courts costs of the hearings and trial and the taxpayer employed Judges, Magistrates, court officers, lawyers etc amounting to hundreds and thousands of dollars.
Lawyers have estimated that all totalled,  these malicious prosecutions cost the Fijian taxpayer millions of dollars in transport, perdiums, research, charges, court appearances, public relations, trials and hearings. It is a conservative estimate that that the total costs for thes 4 cases is around FJD$2.35 million, including judicial costs.  This is scarce money that the regime does not have luxury to waste because alternatively, it could have been better spent on high value projects like 293 basic wooden kit homes for poor people (@ $8,000 each) or water supply projects for 117 villages and settlements (@ $20,000 each), 156 new classrooms for rural schools (@ $15,000 each), the replacment of obsolete essential medical equipment in our national hospitals or even 2 km of tarsealed road.
This is a Malicious Prosecution if ever there was one. We are told that Imrana has meticulously, methodically and systematically recorded – the names of every individual involved in the sorry saga, including the lawyers, investigators, public relations people, officials and servers of documents etc, as well as the events that unfolded from the original investigations, every court hearing and appearance. We are told that under international law " just following orders" is not an appropriate justification. Perhaps one day, Imrana and Saki will recover their losses in a personal suit against the specific indivuals who pursued them, some of whom, should have known better, who ought to have had the courage to say to Frank, Aiyaz, Aca and their cronies, "We will not participate in this. We are decent people. Enough is enough." Principles only matter when they are inconvenient after all. Where were the decent men and women in the entire legal apparatus of the State? As they say, to "misquote" -  "All that is required for evil to triumph, is for good men (and women) to say  nothing".
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