Both the State and Defence Counsel in the case against former Supervisor of Elections, Mohammed Saneem, have agreed that three critical questions need to be addressed by the High Court before the case can proceed in the Lower Court.
The High Court is required to determine the following questions: the validity of former Acting DPP John Rabuku’s sanctioning of the charges against Mohammed Saneem; any alleged breaches of human rights concerning Saneem; and whether the Electoral Act empowers FICAC to investigate and prosecute the matter instead of the Fiji Police Force, except in cases of communication.
The case involving Saneem and former Attorney-General Aiyaz Sayed-Khaiyum was heard by Resident Magistrate Yogesh Prasad in Suva yesterday.
In defense of Saneem, lawyer Davenesh Sharma argued that his client’s right to a fair trial, as guaranteed by section 15(1) of the Constitution, has been compromised due to the charges being sanctioned by an unlawfully appointed Acting DPP. Sharma pointed out that the Supreme Court has previously stated that Rabuku’s appointment was unconstitutional and therefore the charges against Saneem are considered “void-ab-initio.”
In the Notice of Motion filed by the defense, it was noted that Saneem has a vested interest in questioning the validity of the decision to introduce criminal charges against him. Furthermore, the defense argued that the appointment of Nancy Tikoisuva as an ‘officer’ was invalid, claiming she lacked authorization under the Criminal Procedure Act, and criticized the timing of the charges as demonstrating malice. It was also asserted that Saneem had been denied police bail and subjected to inhumane treatment and detention conditions since the charges were filed, leading to claims of cruel and degrading treatment by the police.
Sharma’s motion is supported by an affidavit from Mohammed Saneem and is based on several sections of the Criminal Procedure Act and the Constitution.
On the State’s side, Deputy DPP John Rabuku contended that Saneem’s application for the charges to be dismissed should be rejected as the Magistrate Court lacks the authority to grant such declarations. He argued that precedents indicate the declarations requested by Saneem are legally unfounded and that claims regarding the Supreme Court’s decisions should not apply in this case.
Rabuku characterized Saneem’s lawyer as unethical, asserting that the application lacks legal foundation and that the allegations against police conduct should only be addressed in a High Court application for a stay of proceedings. He invited the Court to refer the applicant to the Legal Practitioner’s Unit for alleged dishonesty, stressing the need for the entire application to be dismissed for the reasons provided.
The matter is scheduled for a ruling on October 7, and both defendants have been excused from attending, with bail extended for both.