Saneem, Former A-G Win Partial Appeal

In a ruling issued yesterday, High Court Judge Justice Thushara Rajasinghe addressed an appeal from former Supervisor of Elections Mohammed Saneem and former Attorney-General Aiyaz Sayed-Khaiyum.

Saneem, faces a charge of receiving a corrupt benefit under Section 137 of the Crimes Act.

Sayed-Khaiyum, is charged with abuse of office under Section 139 of the Crimes Act. The prosecution had initially moved to consolidate the charges, an action that both appellants contested.

In a separate motion, Saneem argued that his human rights, as guaranteed under Fiji’s Constitution, had been violated and sought a declaration that the Director of Public Prosecutions (DPP) had no jurisdiction to prosecute him under the Electoral Act.

Additionally, he questioned the legitimacy of the charge, claiming it was sanctioned by an illegally appointed Acting DPP.

Saneem’s lawyer also sought to have the case transferred to the High Court for further consideration, citing constitutional concerns and alleged breaches of fundamental rights.

The case was first heard in the Magistrate’s Court, where the appellant’s counsel sought to have the case moved to the High Court. Initially, the Magistrate considered transferring the matter, but later ruled that the Magistrate’s Court had jurisdiction to proceed with the case.

The appellants filed an appeal challenging that decision, particularly focusing on whether the Magistrate had the legal authority to hear such constitutional and jurisdictional issues.

Arguments

The appellants’ lawyer argued that the Magistrate erred in dismissing their concerns about jurisdiction. They emphasised that the police had no authority to prosecute under the Electoral Act, suggesting that such cases should be handled by the Fiji Independent Commission Against Corruption (FICAC). They also raised concerns regarding the appointment of the Acting DPP, John Rabuku, whose legitimacy had been questioned due to a prior conviction related to the Legal Practitioners Act.

The appellants also objected to the consolidation of the charges, arguing that this combined approach was prejudicial to their case.

State prosecution’s response

Representing the state, Nancy Tikoisuva argued that the Magistrate’s Court lacked the jurisdiction to hear the case, as the Constitution mandates that such matters be dealt with in the High Court.

Ms Tikoisuva contended that only the High Court had the authority to examine breaches of constitutional rights or challenge decisions made by the Acting DPP, citing the principle of judicial review.

In December 2024, the Magistrate ruled against the appellants, dismissing the application on several grounds. The court found that questions surrounding the investigation and the role of FICAC were matters to be determined at trial rather than pre-trial.

The Magistrate also rejected the appellants’ claims about human rights abuses, ruling that these were not relevant to the admissibility of evidence at this stage. As for the consolidation of charges, the Magistrate decided to proceed with it, determining that it was legally justified.

Appeal judgment

In its ruling on the appeal, the court addressed several key issues. First, it agreed with the appellants on two main grounds: the Magistrate had no jurisdiction to hear the issues related to the alleged human rights violations and the legitimacy of the Acting DPP’s decision.

The court overturned the Magistrate’s conclusions on these points, finding that these matters should have been referred to the High Court.

However, the court upheld the Magistrate’s decision on the consolidation of charges, ruling that the charges could remain consolidated as originally planned.

Conclusion

The court’s judgment yesterday has significant implications for the ongoing legal proceedings of Saneem and Sayed-Khaiyum.

While the appellants succeeded in part, with the court acknowledging the lack of jurisdiction by the Magistrate to hear certain aspects of the case, the issue of charge consolidation remains intact.

The matter of the alleged breaches of constitutional rights is now set to be referred to the High Court for further determination.

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