Why was Biman Prasad‘s lawyer, Richard Naidu, down at the courts with Manoa Kamikamica‘s lawyer, Wylie Clarke, for the first mention of the FICAC prosecution of Kamikamica arising out of the Ashton-Lewis Supreme Court Commission of Inquiry into the Malimali Affair?
It’s a question Grubsheet highlighted yesterday when we canvassed why a posse of lawyers – also including Barbara Malimali‘s lawyer, Tanya Waqanika, – was present when they ostensibly had nothing to do with Kamikamica’s case.
The suggestion that they were there to support Kamikamica personally stretches credulity. He wasn’t even present, having not yet returned from overseas. No, they were much more likely to be there to support Wylie Clarke in his desperate attempt to shut down the FICAC prosecution by seeking a stay of proceedings in the High Court. And why would that be? The rumour mill in Suva has now given us a possible answer.
Persistent reports are circulating that the prosecution of one deputy prime minister will soon be followed by another – that of Biman Prasad, the Deputy Prime Minister and Minister for Finance. Prasad has been under FICAC investigation after the Commissioner who replaced Barbara Malimali, Lavi Rokoika, reversed Malimali’s decision to drop the case against the NFP leader.
Grubsheet readers will recall that the former acting deputy commissioner, Francis Puleiwai, was about to charge Biman Prasad on September 5 last year when a posse of lawyers – assembled by Wylie Clarke – descended on FICAC to free Barbara Malimali, whose arrest had been ordered by Puleiwai. By the end of that day, Barbara Malimali was safely in the job of FICAC Commissioner and Francis Puleiwai was gone, after the Chief Registrar, Tomasi Bainivalu, conveyed a message to her from the Chief Justice, Salesi Temo, that no court in Fiji would hear any charge she laid.
All this had been preceded by Biman Prasad’s lawyer, Richard Naidu, writing to Barbara Malimali asking her – in her first day in the job – to delay any action against his client because of the upcoming visit to Fiji of the President of the World Bank. So while Richard Naidu wasn’t physically present at FICAC on September 5, it’s a fair bet that he was playing a significant role behind the scenes, if only because of his intimate relationship with Wylie Clarke, who the CoI accuses of being open to a charge of perverting the course of justice because he was there and said nothing as Puleiwai was blatantly intimidated.
The dramatic day ended with Puleiwai gone and soon heading into self-imposed exile in New Zealand and Malimali’s appointment as the top corruption watchdog asserted. And to few people’s surprise, Barbara Malimali soon dropped the charge against Biman Prasad and shut down the investigation into the allegations against him of making a false income declaration to the Elections Office.
Sighs of relief all round. But short lived when the explosive Commission of Inquiry Report led to Barbara Malimali’s dismissal and the installation of the Prime Minister’s personal choice of Lavi Rokoika as FICAC Commissioner. And Rokoika revived the investigation into Biman Prasad.
Leqa. Leqa levu. That investigation is said to be now reaching its climax and the coconut radio in Suva is buzzing with reports that Prasad is about to be charged. Are they correct? Time will tell. But the decision to charge Manoa Kamikamica – which many thought would never happen – will have induced blind panic on the part of those close to the NFP leader, including his acolyte and personal lawyer, Richard Naidu.
We can be sure that Naidu is working closely with Wylie Clarke – and his presence at the court lends weight to that – to blow Lavi Rokoika out of the water. If they can get a stay in the High Court of the FICAC prosecution against Manoa Kamikamica, there is still a chance of saving Biman Prasad. But if they don’t, a locomotive is bearing down on everyone.
For Prasad and the clique around him, the prospect of the NFP leader being charged and having to stand down like Kamikamica doesn’t bear thinking about. If they are eventually convicted, it would be the end for both men in politics. Yet it also increases the prospect that Wylie Clarke and others who have received adverse mentions in the CoI Report might also be charged. And then there is the wider issue of the loss of access to power for those like Richard Naidu, in particular, whose influence depends on Biman Prasad remaining on his perch.
All of which means that there is now a desperate collective effort to save not only Manoa Kamikamica – who’s already been charged – but Biman Prasad and anyone else who might find themselves in the dock arising from the CoI.
Part of this strategy is the applications for judicial review – beginning on December 12 – to overturn Justice David Ashton-Lewis‘s findings altogether by Wylie Clark, Barbara Malimali, the deposed attorney general, Graham Leung, and the Judicial Services Commission ( Chief Justice Salesi Temo and Tomasi Bainivalu). And the other part is what Wylie Clarke flagged at the Kamikamica hearing on Wednesday – High Court action to declare Lavi Rokoika’s appointment unlawful and obtain a permanent stay on the prosecution of Manoa Kamikamica, with a view to also throttling any prosecution of Biman Prasad.
So what are the chances of this succeeding? Here’s what Section 5 of the FICAC Act says about who has the legal right to appoint a FICAC Commissioner. It is the JSC, not the Prime Minister, who says he bypassed the JSC because he “wasn’t getting any cooperation from the JSC”, presumably Salesi Temo, which is a separate story all in itself.
But the Aston-Lewis Commission of Inquiry – on the advice of Professor Philip Joseph, a New Zealand Kings Counsel and the country’s foremost constitutional expert – concluded that the Prime Minister does have the right to advise the President on who to appoint as FICAC Commissioner.
Section 5 of the FICAC Act – it found – is ultra vires of Section 82 of the Constitution. In other words, Section 5 is invalid because it is contrary to Section 82. And the CoI concluded and recommended that given these circumstances, the Prime Minister did have the authority to suspend Barbara Malimali and make a fresh appointment by advising the President directly. So Rabuka is on safe ground legally.
(For the full story on this, see the Grubsheet article from last February below)
Yet even if the High Court were to eventually rule that Lavi Rokoika’s appointment is unlawful, what impact would that have on the imminent prosecution of Manoa Kamikamica and the rumoured prosecution of Biman Prasad?
The answer to that – according to legal authorities Grubsheet has consulted – is straightforward. None. Because it isn’t Rokoika the individual who mounts the prosecutions but FICAC the institution. And even if she goes, the prosecutions stay.
As a senior lawyer put it: “Unless the whole criminal justice system breaks down and a rogue Chief Justice simply shuts all this down, this is no more than a desperate attempt to delay the inevitable. Manoa Kamikamica has been charged and nothing is going to prevent him going to trial. And it will be the same for anyone who is charged”.
“The system is still functioning. Individual judges and magistrates are independent. And any intervention to block charges arising from FICAC or police investigations would lead to a complete breakdown of the rule of law”, this person opined.
Is this where Fiji is heading? The answer to that is “not yet”. Which is why the tactic outlined by Wylie Clarke on Wednesday – presumably with the support of Richard Naidu – is destined to fail.
Manoa Kamikamica is going on trial, whatever happens with this High Court challenge. And if it is true that Biman Prasad will also soon be charged, he will be going on trial too. It is a last desperate throw of the dice. But short of an extraordinary intervention to stop the wheels of justice from turning, it isn’t going to work.
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Now background documents – first the FICAC charges against Manoa Kamikamica:
The full FICAC press release following Wednesday’s hearing:
Now media coverage of Wylie Clarke’s objections. First the Fiji Times.
The Fiji Sun:
And more on the Prime Minister’s response from the Fiji Times:
So all eyes will be on the courts later today (Friday) as Manoa Kamikamica makes his first physical appearance for his bail hearing.
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FURTHER READING:
Why the Wylie Clarke High Court action is destined to fail. The advice from Professor Philip Joseph KC that the Prime Minister can directly recommend the appointment of a FICAC Commissioner, whatever Section 5 of the FICAC Act says:
POSTSCRIPT:
Does anyone else share my view about the absurdity of Manoa Kamikamica being praised for “doing the right thing” and standing aside as minister?
Since when is doing the right thing something so rare in Fiji that it deserves special commendation? Publicly elected officials should ALWAYS do the right thing.
And Manoa Kamikamica has only relinquished his ministerial positions. He remains Deputy Leader of the People’s Alliance.
If he was really intent on doing the right thing, he’d have resigned from that too. Yet he is clearly determined to hold onto to his power in the Party. Which isn’t “doing the right thing” at all.
We are where we are today because the ruling government made some critical errors in making key appointments as soon as they came into power.
Appointments were based on ethnicity and political affiliation instead of merit.
The appointment of the CJ, DPP, FICAC head, various government entity heads and boards etc. Not forgetting the suspension of DPP Pryde, Acting FICAC head Puleiwai.
Just a clusterf**k of errors from the beginning. We are going from one crisis to another with so much time consumed in trying to correct these errors that they are not doing their real jobs of governing our country.
Now we have a non-functioning government and a very compromised legal and judicial system.
With crime through the roof and poverty on the rise, social ills like drugs and an imperative AIDS epidemic, we are one step away from anarchy.
And we wonder why many people have given up and gone elsewhere.
It all started with Baimaan’s arrest by ficac and it should end peacefully with his arrest. He’s the main culprit. Rabuka, open your eyes. The election is just around the corner. You want to send your own people to prison and try to save baimaan? Wakeup Mr Rolex.
Grubsheet has exposed how political networks, influence peddling, and connections enrich the elite and rob taxpayers and indigenous resource owners of this country. It reveals how multinational corporations, like the owners of Fiji Water, exploit developing countries while pretending to work in their interests — aided and abetted by lawyers like Richard “I have the means” Naidu and law firms like Munro Leys.
The connection between the seven-year tax holiday for Fiji Water, the parliamentary salary increase, and the VAT hike to 15% is as clear as day. The VAT increase was designed to make up for the salary hike and the loss in tax revenue. In other words, both the tax concession and the parliamentary pay rise were subsidized by the long-suffering taxpayers and citizens of Fiji.
We have the NFP connection to thank for this — Finance Minister Biman Prasad, and his Fiscal Review Committee chairman, Richard Naidu. The fiscal review committee was far from independent; Biman and Richard were working hand in glove from the start.
Not only that, Munro Leys picked up the Aspen Hospital contracts and many others. Wylie Clark’s firm is also a recipient of government and other contracts. Richard and Wylie are sharing the spoils, thanks to Biman — which explains why they’re so desperate to keep him out of jail.
The audacity and arrogance of it all — they actually thought they could get away with it. They even roped in Rabuka, organizing a visit to the U.S. to meet the billionaire owner of Fiji Water. Rabuka, the softy that he is, easily impressed by wealth, was so overwhelmed that he readily agreed to the tax concession. In the process, he cheated the country out of vital tax revenue and the indigenous resource owners as well.
So Richard, Biman and Rabuka put Fiji Water’s billionaire owner’s interests before the interests of the nation and its people. Imagine: people like these walk free while someone who steals a small piece of butter to feed his hungry family is thrown in jail.
This is the “change” we were promised, folks. Let’s keep this issue alive so it’s never forgotten — to keep tormenting the perpetrators of this daylight robbery.
Richard Naidu must be sacked from the Fiscal Review Committee — along with another of Biman’s appointees, Kirti Patel, who, like Naidu, has no qualifications whatsoever to be on this committee. Unless being cosily close to Biman counts as a qualification!
Richard Naidu may have been compromised in the Fiji Water tax rebate decision, but I can tell you that he is well qualified to be in the Review Committee.
He also has a Commerce degree and has worked as a corporate lawyer for the last 30 years.
I have had the privilege to work with Mr. Naidu on numerous occasions for about 10 years while working in Fijis corporate world in the late 90s early 2000s. I would regard him as the best lawyer with a good knowledge of business – corporate, tax and accounting at the time. I dealt with other prominent Fiji lawyers at the same time.
To say that he has no qualifications whatsoever is overly ill conceived.
How professionals like him and Mr. Manoa Kamikamica lost their way along the way really baffle me.
I guess politics make people lose their objectivity.
I agree he’s always come across as a reasonable and competent person who has always called for others to be accountable, take responsibility and be transparent.
How do you explain the tax holiday conflict as tax payers are owed a full accounting for this. I’ve noted the situation with PWC in Australia where individuals inside knowledge of tax workings of the government created a huge issue. Is this the same?
Compromised? Dick Naidu did what was right for his client – that was manipulation.
Guess the commerce degree stood him in good stead in that regard – helped him rort the system
We are only here because RABUKA was spared after he was caught cowering under the pool table during the mutiny.
Would’ve been a totally different story if he hadn’t skilfully SNAKED his way out of the trial, or if a tax payer funded stray bullet wouldve found him in the mutiny.
The public should not wait any longer for the injustice legal system to do justice. The Public have right/(riot) to sack the entire Government and MP’s and take control of the it and replace it with a new restructured Government. However, they can not also wait for the next GE. Time to take action is now, imminent.
All the crooks are sticking together to save their behinds. But as they say, there is no honour amongst thieves. Let just one keel over and watch how the rest start to flutter like headless chooks.
It is only a matter of time – a very short time. Not long to go.
The heat in the kitchen must be intense.
” Since when is doing the right thing so rare in Fiji”.
After all – the PM announced that every Saint has a past, every sinner a future..no one does the right thing in Fiji. We just keep on doing wrong after wrong in ignorance or without care and ask for forgiveness when necessary. Once in a blue moon something is done that is right and the population falls off it’s chair in disbelief followed by euphoria. Then the medals are handed out.
Traitor Baimaan will surely have his day. He has been escaping the justice system since the Taniguchi case, then running away from FICAC case which was about to be filed by Ms.Pulewei and later became the source of COI. How long will you run away? One day Mafaatu!!!. That is the day we can all say that Fiji has an acceptable rule of law , Good Governance in place. We shall wait.
Sitiveni will be happy to get Manoa out of the way so he can be Prime Minister after the 2026 election. Manoa is his challenger.
Sitiveni has the numbers to ammend the constitution and also for forming government after winning the 2026 election. He doesn’t need NFP OR SODELPA.
NFP will get very little votes from the Indo-Fijians in Fiji. NFP may not win any seats during the 2026 election.
SODELPA may not win any seats in the 2026 election.