Review of the nine charges filed against PM Qarase by FICAC

The trial of Fiji’s lawful and elected Prime Minister Laisenia Qarase in the Suva High Court continues this week on the nine charges filed by FICAC in October 2011.

FICAC alleges that PM Qarase between October 1991 to May 1992 “being employed as a director of Fijian Holdings Limited, financial adviser of the Fijian Affairs Board and adviser to the Great Council of Chiefs, and in abuse of the authority of his office, did an arbitrary act, in that he applied in the name of a Qarase family company, Q-Ten Investments Limited for the issuance and allotment of Class A shares in FHL.

FICAC alleges that he facilitated the approval of the issuance of the Class A shares to Q-Ten Investments and that he did the same for Cicia Plantation Co-op Society Limited and Mavana Investments Limited.

PM Qarase is charged under the Penal Code which was the criminal law at the time (not the 2010 Crimes Decree).

PM Qarase faces six counts for alleged abuse of office in relation to three legal entities who applied for and were granted Class B shares in Fijian Holdings Limited:

·         QTen Investments, a family owned company,

·         Mavana Investments owned by the village and people of Mavana, Vanua Balavu, Lau, and

·         Cicia Plantations Cooperative Society owned by 15 Mataqali of Cicia Island.

Section 111 Penal Code – Abuse of Office – 6 counts

There are two counts of abuse of office charges for each of the above named entities  – the allegation is that that he applied for shares for each of the three entities, and that he allotted shares to each of the three entities, while being a public officer, and prejudicing the rights of the 14 Provincial Councils who owned $20m class B shares in FHL.

The abuse of office offence is defined in section 111 of the Penal Code, is a felony and if done without personal gain, is a misdemeanor exposing the accused person to a maxmum penalty of 1 year imprisonment. However if the act is done for personal gain, the accused person commits a felony and the  maximum  punishment is three years in jail.

Section 109 Penal Code – 3 counts

The other 3 charges are one count each of discharging an official duty with respect to the business in which he had an interest – one count for each of the three entities. The offence is defined in section 109 of the Penal Code and the offence is a misdemeanor, and the maximum penalty is imprisonment for one year.

THE OFFENCES

PM Qarase is charged under the Penal Code which was the criminal law at the time (not the 2010 Crimes Decree).

Officers charged with administration of property of a special character or with special duties

109. Any person who, being employed in the public service, and being charged by virtue of his employment with any judicial or administrative duties respecting property of a special character, or respecting the carrying on of any manufacture, trade or business of a special character, and having acquired or holding, directly or indirectly, a private interest in any such property, manufacture, trade or business, discharges any such duties with respect to the property, manufacture, trade or business in which he has such interest or with respect to the conduct of any person in relation thereto, is guilty of a misdemeanour, and is liable to imprisonment for one year.

Applying the law to the facts

The definition of the offence in the Penal Code shows that FICAC will have to prove to the court that PM Qarase was 'employed in the public service' at the relevant time (1991-2).  Evidence from Meli Bainimarama on day 1 of the trial 5 July showed that PM Qarase was not an employee of the Fijian Affairs Board when he was financial advisor, rather he was merely a contractor and not an employee. And evidence from Sitiveni Weleilakeba on day 3 and 4 of the trial has shown that the FHL Board were aware of Qarase's involvement with the three entities in question - Mavana, Cicia and QTen. 

Abuse of office

111. Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another, is guilty of a misdemeanour.

If the act is done or directed to be done for purpose of gain, he is guilty of a felony, and is liable to imprisonment for three years.

A prosecution for any offence under this or either of sections 109 or 110 shall not be instituted except by or with the sanction of the *Director of Public Prosecutions.

Applying the law to the facts

Again, PM Qarase was not employed in the Public Service at the relevant time. Neither was Fijian Holdings a statutory body or public company - rather it was a private company. 

When PM Qarase carried out his duties as Director, he was not exercising a public function. Rather he was encouraging indigenous Fijian to take up class B shares, as approved by the FAB and GCC, as part of the Government's affirmative action policy. Neither did his actions prejudice the rights of the existing shareholders at the time - the FAB (20m shares) and Provincial Councils, who did not complain. 

And by 2008, FHL had paid the FAB over $22m in dividends! The FAB and PCs were not prejudiced by PM Qarase's actions, rather he had simply implemented the letter and spirit of the government's affirmative action policy, as approved by the GCC and FAB!