Friday, August 19, 2011

Sri Lankan Anti-graft Prosecutor and Interference in Judiciary

Posted by Raw Fiji News - 19 August 2011

The anti-graft Sri Lankan prosecutor’s claims of political interference has echoes of deposed Chief Justice Daniel Fatiaki’s persecution over tax irregularities
BY VICTOR LAL
Long before the appearance of Fiji pro-democracy blogs, I had written a two part investigative report on how the illegal Attorney-General Aiyaz Sayed Khaiyum, had forced a top senior FIRCA tax inspector to pursue deposed Chief Justice Daniel Fatiaki over tax irregularities.
In July 2009 I had disclosed in one of my then regular columns in the Fiji Sun that in December 2007, a high-level meeting took place in the conference room of the Attorney-General’s chambers in Suvavou House between Khaiyum, the FIRCA’s then acting CEO, Jitoko Tikolevu, Paul Madigan and Elizabeth Yang, the two Hong Kong based Fiji Independent Commission Against Corruption (FICAC) prosecutors and a top FIRCA tax investigator. Madigan later became a Fiji High Court judge, and is presiding over the Lautoka circuit.
At this Suvavou meeting the tax investigator had presented his findings after having interviewed Justice Fatiaki under caution. However, the meeting resolved to conduct an investigation into the suspended Chief Justice Fatiaki with a view to prosecuting him on charges of tax avoidance, even though Justice Fatiaki had paid his taxes during the amnesty period.
The FIRCA tax inspector later claimed to me (which I disclosed in the two part series) that the interim Bainimarama government usedFiji’s tax system to get people for political reasons. He also claimed that the information he gave   Madigan and Ms Yang, was under perceived threat, paving the way for action to remove Justice Fatiaki under the 1997 Constitution of Fiji.
Looking back at my notes, the former tax investigator had written to me the following when I was preparing another tax scam story involving a FIRCA consultant: “During the course of my investigation into Fatiaki I made friends with two Hong Kong based investigators who were looking into Fatiaki for the Sec 138 of the Constitution hearing about him being a fit and proper person to be a judge (to be heard in Feb 08) – Paul Madigan and Elizabeth Yang. It was they who persuaded me to complain to [Lt Colonel] George Langman (deputy FICAC commissioner] about [the consultant’s] blackmail attempt, because FICAC owed me a favour for helping them get Fatiaki.”
Two e-mails, one from Ms Yang dated 1 November 2007 (“This isElizabethfromHong Kong. We had a meeting about two months ago regarding a tax case”) and another from  Madigan dated 16 January 2008 (“It was go[o]d to talk to you this afterno[o]n. I have thought about your situation a lot over the last couple of months. I arrived back inFijiyesterday to do more FICAC work and then to prosecute the Fatiaki case…I wish you loads of luck and happine[s]s and please ke[ep] in touch”) to the former tax investigator confirms his assertion that he assisted the two Hong Kong-based prosecutors.
Commenting on Ms Yang’s e-mail, the former tax investigator said he had a meeting with  Madigan, Ms Yang and Tikolevu in September 2007 in which he (the former tax investigator) gave the FICAC lawyers a photocopy of Justice Fatiaki’s confession.
“They were very pleased and this was the start of our cordial relations. Providing this information was illegal but it was done out of the state of fear previously described,” said the former tax investigator. .
He had earlier pointed out to me as follows: “You must remember that at the time FIRCA was living in fear of FICAC. The former CEO, Tevita Banuve, was sacked in July 07 because he refused FICAC access to tax documents. The FIRCA premises at Waisomo House was raided by police and military. They took DF’s file from […] (then copied it and later returned the originals, except for the 2002 tax return of DF which went missing).”
Over September 2007 to January 2008, the former tax investigator met with FICAC several times and provided more information about the evidence against Justice Fatiaki, for example, photocopies of the original documents (the confession and tax returns etc) had to be certified by a Justice of Peace (a FIRCA lawyer). FIRCA kept the original documents for their case and FICAC kept the certified copies for their case, said the former tax investigator.
Madigan was later the lead prosecutor for FICAC in the case against Laisenia Qarase. The deposed Prime Minister is alleged to have abused office by allowing his family company, as a director, to own shares in Fijian Holdings Ltd between 1992 and 1995.
Meanwhile, there was turmoil within the FIRCA hierarchy, as a chain of e-mails between some of the most senior figures (including the former tax investigator) reveal on how best to handle Justice Fatiaki’s tax file.
Some were “cc” to Tikolevu. I have decided to withhold the identities of the e-mail writers. But here are a few exchanges on 20 November 2007, RE: Daniel Fatiaki: “I would have thought that the intention of the Minister’s amnesty to the taxpaying public was clear at least to you as [...] I cannot answer your question for you, unfortunately.”
Another exchange read: “There are a number of OIP cases (100% penalties eg […] where our auditors levied 100% OIP because […] was alleged to have defrauded […] – up until now that allegation has not been substantiated either by our auditors nor by the Police; another one is […] where we are offering 100% OIP to be waived if he pays the RT upfront; there are many more that I have not named, that have been waived by us in pursuant with the Minister’s express conditions for amnesty to the taxpaying public. Unless and until there is an express exception to the Minister’s amnesty (which I have never seen nor heard of during our TAU committee meetings), the amnesty has to apply equally to all members of the t[ax] p[aying] public without favour or vengeance. If we are going to apply the amnesty selectively, then we (Minister and FIRCA) are to expect to be unnecessarily sued. Can FIRCA defend itself from such a law suit given the ongoing repetition of “no fear of prosecution” in the air waves and TV?”
In response, one of the top notch FIRCA bosses from whose custody FICAC had forcibly taken away Justice Fatiaki’s tax file replied to his colleagues at 11.20am: “I am uncertain whether the amnesty is a gateway or a getaway to crimes such as “wilful intent” to evade taxes ….”  At the end of the same day, the former tax investigator summarised the case, which was transferred to him in August 2007.  A month earlier, in July, another FIRCA officer had already written to Justice Fatiaki to get details of undisclosed income. The former tax investigator commenced an investigation into whether Justice Fatiaki had breached s96(2) of the Income Tax Act by non-disclosure of income.
He told his colleagues in response to their e-mail exchanges: exhibits were assembled, witnesses identified and an investigation plan prepared. “Assessments were raised on the taxpayer, with tax payable of approximately $50,000. A penalty of 100% was imposed. The assessments were based on the admission. No audit has been conducted. The purpose of raising the assessments was to demonstrate that tax had been evaded”, the former tax investigator told his colleagues, noting in his e-mail of 20 November: “A letter was prepared (but not yet sent) offering the taxpayer a caution interview (attached). It was my intention to send the letter on 27 November, when the objection period has expired. No objection has yet been received. It was expected that the taxpayer would not object, which was to be used to demonstrate wilful intention.”
He told his FIRCA colleagues that Justice Fatiaki paid the tax assessment and had the penalty waived, as part of the tax amnesty. The former tax investigator also reminded his colleagues of the then illegal Finance Minister Mahendra Chaudhry’s press release of 9 October announcing the amnesty: “Mr Chaudhry explained that tax amnesty is generally defined as a limited – time opportunity where tax defaulters have an opportunity to absolve their interest and penalties relating to overdue tax without fear of prosecution.” The former tax investigator concluded his 20 November e-mail by noting: “In view of the above intention stated in the press release, I recommend closure of the investigation. Can I get your views?”
Co-incidentally, on 20 November 2007, Khaiyum had announced in a press conference the names of those who would make up the Tribunal that would look into allegations of misbehaviour of suspended CJ Fatiaki. This followed their appointment by President Ratu Josefa Iloilo. The three-member Tribunal were identified as follows: Chair of the Tribunal, Justice Robert James Ellicott, Justice Raymond Sears, and Tan Sri Datuk Dr Lal Chand Vohrah, a Judge of High Court of Malaysia.
The Hong Kong based prosecutor Gerard McCoy (who later represented the State in the Qarase-Bainimarama case in the Suva High Court) was appointed the Counsel to assist the Tribunal. Justice Fatiaki was suspended on 18 January 2007 as provided for under the Constitution for allegations of misbehaviour.
Three days earlier, on 17 November 2007, McCoy disclosed the allegations of misbehaviour against Justice Fatiaki, which ranged from failure to uphold the dignity and high standing of the office of a judge and allegations relating to tax matters. In a cruel twist of events, one of the leading champions of the 2006 coup Shaista Shameem, former director of the Fiji Human Rights Commission, had claimed that McCoy, Solicitor-General Christopher Pryde and Khaiyum had attempted to pervert the cause of justice in Qarase’s appeal case before the Fiji Court of Appeal:
As for Chaudhry, I had yet to expose his own $2million in the Australian bank account, which he was hiding from FIRCA, and is currently facing trial for various tax offences after falling out with his former treasonous colleagues in the illegal Bainimarama government.
Three years since the publication of my investigation in “The Fatiaki Taxgate”, it has now emerged that those pursuing Justice Fatiaki to be hauled before the Tribunal had chosen to totally ignore the lengthy rebuttals he had submitted in his defence. In his affidavit, Justice Fatiaki had pointed out, among other issues, the unlawful obtaining of evidence, submitting as follows:
  1. Counsel for the Tribunal has given notice that he intends to rely upon two sets of documents obtained in circumstances of egregious unlawfulness and in gross violation of the Constitution.
  2. I refer first to the fact that a whole section of documents being tendered in evidence by counsel for the Tribunal comprises my own personal documents that were kept in a locked filing cabinet in my judicial chambers.
  3. The only way in which this material could have been obtained was for my filing cabinet to be forced open and searched after my departure.  It goes without saying that this conduct constitutes a flagrant breach of my right to be free from unreasonable search and seizure, as well as my right to privacy, both of which are affirmed in the Constitution.
  4. A second set of documents being tendered in evidence by counsel for the Tribunal comprises my Inland Revenue Division file.  Under section 4 of the Income Tax Act, this information is “secret and confidential”.  Officers of the Inland Revenue Department are required to take an oath not to reveal information of this kind, other than in circumstances permitted by the Income Tax Act.  The present proceedings are not within the permitted exception.
  5. I understand that my accountant is to swear an affidavit verifying that, after examining the relevant documents, he can confirm that they are the same documents that were submitted to FIRCA with my amended tax returns under cover of a confidential letter of 10th August 2007.  As my accountant explains, those documents were submitted in accordance with a formal tax amnesty promulgated by FIRCA.
  6. The provision to the Tribunal of my Inland Revenue file was thus carried out in breach of confidence and it is a breach of confidence for counsel for the Tribunal to attempt to use the material in question in these proceedings.  It is also a breach of my constitutional right to privacy.
  7. I note that these documents are being tendered without being produced or verified by any witness.  Although this is unusual, and I believe unprincipled, in all the circumstances it does not surprise me that no-one is prepared to be questioned concerning the provenance of these documents.
  8. I understand that some of these documents may have been obtained pursuant to a purported search warrant issued under a decree promulgated by the current de facto government without the authority of the Parliament of Fiji and in breach of the Constitution.
  9. The notion that evidence obtained in breach of the Constitution could be relied upon, without being formally produced, in a hearing purportedly convened under an express provision of the same Constitution, is surprising.
  10. I respectfully request the Tribunal to direct counsel assisting the Tribunal to withdraw that evidence.  At the very least, I believe that I am entitled to full disclosure of all relevant documents and all the circumstances under which the documentary evidence was obtained so my counsel can make submissions in relation to the admissibility of the evidence, should that be necessary.  No such disclosure has been provided.
  11. In the absence of an opportunity to examine the officials who obtained the documents in question, and in the absence of full disclosure of all documents relevant to the search and seizure of those documents, it is impossible for me properly to prepare a defence and I strongly object to being forced to proceed with such an important hearing in those circumstances.
I have no doubt that the former Sri Lankan anti-graft prosecutor Madhawa Tenakoon, who was the Manager Legal for FICAC, is telling the truth that the treasonous illegal Bainimarama-Khaiyum-Gates-Pryde government interfered in prosecutions by directing certain investigations, when there was no basis or no jurisdiction for FICAC to do so. He cited the case against the outspoken human rights lawyer Imrana Jalal and her husband.
The hounding of Justice Daniel Fatiaki over his tax matters is a living testimony to the level Khaiyum and the gang would go in pursuit of their perceived and real opponents. There is no justice in Khaiyum’s court!
But justice awaits Khaiyum and others when Fiji returns to democratic rule. As for Tenakoon’s fellow lawyers, judges and magistrates inFiji, they should heed a warning from former Fiji Court of Appeal judge Justice Randall Powell who warned recently that any lawyer offered a government post inFijiunder the current circumstances might be guilty of treason.
Madhawa Tenakoon must be BELIIEVED over the lying Aiyaz Sayed Khaiyum.

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