There was pin drop silence in the court as Tupou Draunidalo, lead defence counsel outlined the lack of evidence presented by the highly paid FICAC persecuting lawyer, flash QC from Hong Kong, Michael Blanchflower.
Draunidalo told the assessors to consider carefully the evidence presented, that it must be beyond reasonable doubt, and satisfy all the elements of each charge, to that standard of proof, "beyond reasonable doubt".
The assessors were told that the very essence of the FICAC case is the allegation that PM Qarase did not declare his interest - but why isn't he being prosecuted for that? It becomes very clear that having failed to find any corruption from PM Qarase's government, FICAC has gone back twenty years to now lay these nine charges.
And reflecting on the case, if one really thinks about it, that is the problem: because in the public sector, civil servants get a salary and they do their job. Civil servants do not work for profit. Whereas in the private sector people invest for profit; and directors work to make profit for the company which is what Mr Qarase did. And this is not a crime. FICAC is trying to make it a crime. Draunidalo emphasised that this is what makes the whole case so confusing and the charges so mixed up: because FICAC is trying to apply public sector rules to private business. But public sector is public, with its own rules, like corruption rules for civil servants. The public sector is where FICAC belongs. The private sector is private, also with its own rules, like the Companies Act. That is where Fijian Holdings is. Fijian Holdings is private. FICAC does not belong there.
Draunidalo urged assessors to consider Mr. Joe Mar's evidence that the company was run on commercial lines, not on vanua principles. Running it on vanua principles would defeat the whole purpose of getting indigenous Fijians into commerce.
Draunidalo said that like Joe Mar, PM Qarase did his duties as a director of the company, with the other Directors - he did not decide alone to allot shares, he did not decide alone the dividends that were to be paid. And FICAC has not proven that he voted - minute taking by the Company Secretary Sitiveni Weleilakeba was so poor, that matters discussed in the 1-2 hour long meetings were not fully covered in the brief minutes following the style preferred by the Chairman Lyle Cupit.
As harsh as it sounds, the memorandum and articles did not bind the Directors to the Vanua, the Provinces or Tikina Councils - the whole point was to introduce indigenous Fijians to the realities of the commercial world, not more of the same failed indigenous commercial initiatives that until then had failed!
Draunidalo then went over all the elements of each of the nine charges, and reminded the assesors of the gaps in the evidence produced by FICAC before them in court - primarily FICAC's star witness, the company secretary, Sitiveni Weleilakeba, who himself faced FICAC charges which were withdrawn in August 2011.
Draunidalo reminded the assessors that the minutes produced in court were only 2 or 3 pages long, so Weleilakeba's statement that "if it wasn't in the minutes, then it didn't take place" is plainly wrong and not good enough. This is because Joe Mar testified and the minutes record, that the meetings went on for one, two, sometimes three hours, so plainly, not everything was recorded by Weleilakeba! And that this is how Cupit preferred the minutes.
Joe Mar recalled declaring his own interest in Nabuabua Holdings, yet it wasn't in the minutes - yet again Weleilakeba failed to record that declaration too!
Draunidalo said the Defence accepts that no one has perfect memory, but that the minutes of FHL board meetings and Welailakeba's recall of the meetings, are plainly unreliable.
Draunidalo asked the assessors to weigh Mar's evidence against Weleilakeba's and to consider that Weleilakeba's charges were dropped earlier by FICAC.
Draunidalo asked the assessors to consider that PM Qarase is not charged with non-disclosure of his interest - the charges he faces are for dishonesty and corruption, and plainly, he did disclose, he did not hide anything from the Board, he signed the application for shares by the three companies, and yes, the Minister for Fijian Affairs at the time, Vatiliai Navunisaravi sat on the FHL Board with PM Qarase.
On the issue of gain, Draunidalo urged the assessors to remember that the 'gain' made by the owners of the three companies did not come from any abuse of office, but from investing or risking their own money - they paid the full price for the shares, and gained from that investment, not from a failure on Mr. Qarase's part to tell the FHL Board or FAB about his connection with the three companies.
And that is why, Draunidalo told the assessors, these charges are so complicated and confusing: because FICAC is trying to turn a crime meant for civil servants into a crime involving shares in a private company.
On the issue of prejudice, the only evidence presented by FICAC are two letters from individuals saying they would like to buy shares - there is no evidence that they were ready to buy shares, or made the application in the required form - FICAC did not produce the letter writers in court, so the letters which were waved around by Weleilakeba are unreliable as indicators of the prejudice that is required under the charges laid against PM Qarase.
Draunidalo questioned how the entire indigenous race was prejudiced by PM Qarase's actions in 1991 and 1992, and where is the proof from FICAC, that their interests were prejudiced.
Instead, the evidence from Joe Mar and Weleilakeba, is that no one wanted to buy FHL shares at the time - the Board struggled to raise interest, reaching out to Provincial Councils, Tikina Councils and receiving a poor response, and because it was a private company, FHL could not at the time, advertise the availability of shares.
It is only Tikinas and Villages who formed companies, and had some equity, who were able to apply for secured loans, to buy shares. And yes, it is easier to mobilise a Tikina, a Village, or a family to pool their resource, form a company, apply for a loan and apply for FHL shares, in the time window available, so that is what happened - a much harder prospect to try to mobilise a whole province - some had trouble even buying their allocated 50,000 A class shares in 1984 when the FAB formed FHL!
Draunidalo then went on to destroy the meagre evidence offered by FICAC on charges 7,8 and 9 on discharge of duty in property of a special character in which the public officer had an interest.
Draunidalo told the assessors that Qarase did not act alone in deciding on dividends for the alleged 'special property' (the FHL shares) rather the directors as a board decided on dividends. In any case, the shares cannot be special property because the FHL did not own its own shares, the shareholders owned those shares, and the Directors owed duties to the shareholders, not to 400,000 indigenous Fijians. It was the Minister for Fijian Affairs, Vatiliai Navunisaravi, who is the ultimate protector of indigenous Fijian interests, as defined in the Fijian Affairs Act - he sat on the Board yet now FICAC wants the world to put that responsibility on PM Qarase alone? FICAC would have assessors believe that one person was responsible for getting 400,000 indigenous Fijians into commerce?
Draunidalo told assessors that it is absurd for FICAC to want to jail PM Qarase because he had the responsibility of getting 400,000 indigenous Fijians into commerce.
In conclusion, Draunidalo emphasised that the burden of proof lay with FICAC, to prove all elements of each charge, beyond reasonable doubt - the defence does not have to prove anything, merely to tear down the meagre case presented by FICAC.
Draunidalo urged the assessors to consider four questions in their deliberations:
- at the time, was PM Qarase a civil
servant, or even like a civil servant?
- did PM Qarase hide anything
from anybody?
- was PM Qarase dishonest in his
dealings in any way?
- did PM Qarase or others make
any dishonest gain from what he did?
- and most importantly did PM Qarase abuse his office?
Draunidalo emphasised that it is commonsense to consider what corruption is - FICAC's website says its dishonest and happens in secret, and that is what the assessors must consider, apart from the clouding of issues by FICAC's emphasis on the memorandum and articles of association of FHL, the Fijian Affairs Act, the minutes, allotment of shares - where have they proven PM Qarase acted dishonestly?
Draunidalo told assessors that we all know what dishonesty is when we see it - it is not legal technicalities about who disclosed what to whom. Dishonesty is hiding facts from people, lying to them. And she asked – where is the dishonesty here? What has FICAC proven that PM Qarase concealed?
In closing her presentation to the assessors, Draunidalo asked the assessors to consider that PM Qarase's liberty is at stake because of FICAC's flimsy case - saying that everyone knows Mr Qarase because he is the last person that the people of Fiji elected as their Prime Minister, in 2001 and 2006 and that from our knowledge of him, he was at the time, a distant and remote figure for many people. Draunidalo said that the picture of PM Qarase that has emerged in the trial is not of a greedy man who is now very rich at the expense of other indigenous Fijians, but rather the clear picture has emerged of an honest and unassuming man. A man who has given years of service to the small island community he came from; who tried to bring indigenous Fijians into business in a small way, to make them shareholders, to help them to meet the soli and other obligations which, indigenous Fijians know, can be very burdensome.
Draunidalo said that the Mavana and Cicia companies employ professional accountants and they produce annual accounts for everyone to see, the companies are transparent and well-run. A good example of getting indigenous Fijians into business, showing that PM Qarase has not just talked about the aim of getting indigenous Fijians into commerce, he has actually done it - an example of exactly how it should be done.
Draunidalo urged the assessors to remember that PM Qarase did not charge for his advice and help. He and Mrs Qarase earn a modest investment income from their own prudent saving and investing. PM Qarase is not and was never, a man given to greed or dishonesty or abusing his power for gain from others.
Draunidalo reminded the assessors that in the courtroom, PM Qarase is an ordinary citizen, like the rest of us. And that for every one of us, if we were sitting in the dock like PM Qarase, facing a case that is so riddled with contradictions and doubts as this one, would want to be accorded the fairness and justice that is the equal right of every citizen of Fiji. For PM Qarase, that fairness and justice, right now, is in the assessors' hands. And that is why, Draunidalo said, that the assessors can only find Mr Qarase not guilty on all of these charges.
What next?
With the closing submissions from both sides made today, the Judge Priyantha Fernando adjourned the trial to Monday 30th July, for his summing up and instruction to assessors.
The assessors will then deliberate and give their verdict.
The Judge will notify FICAC and the Defence to appear in court for the verdict. The Judge may overrule the assessors, whatever verdict they decide.
If PM Qarase is convicted, the Defence team will then have opportunity to mitigate, present character witnesses, before the Judge pronouces the sentence or punishment. Once the Judge gives the sentence, PM Qarase will be jailed. The Defence team will have 28 days to file an appeal, if they wish.
Your correspondent was told last week that the RFMF have warned the Prison authorities to prepare for PM Qarase's conviction. To this we say, go ahead he will be the Mandela of the Pacific!! PM Qarase has already been chosen twice by the people of Fiji at the ballot box, jail him and he will win not only the votes, but the hearts of the people of Fiji!!
Note to supporters of freedom and democracy
If you are in Suva, come on down to the courtroom on Monday, because the Judge's summing up will be a good indication of his assessment of the case too.
Make the effort to come and listen on Monday 30th July, when the verdict is given by the assessors, and for each day that the case is called.
Your correspondent is heartened to see FICAC staff are now no longer taking up all the seats, and to see more of the people of Cicia, Mavana and Lau, and the SDL in the courtroom - more, more!!
Nanise Loanakadavu
Thursday, July 26, 2012
Thursday, July 26, 2012
THE Fiji Independent Commission Against Corruption (FICAC) has
not fully proven former prime minister, Laisenia Qarase committed an
offence.
While addressing the three assessors during her closing arguments, defence
lawyer Tupou Draunidalo informed the court her client, Mr Qarase, should not be
convicted as he was not a public servant during the time in question. She said
FICAC was trying to apply public sector rules in the private sector as Fijian
Holdings Limited was a private company at the time."Please remember FICAC is building a huge case and making something out of nothing," she told the assessors. "My client did not hide anything when he applied for the shares."
Ms Draunidalo reminded the assessors that there was no law to stop Mr Qarase from applying for the shares as stated by State witness, Sitiveni Weleilakeba.
Meanwhile, FICAC's senior counsel Michael Blanchflower told the assessors Mr Qarase was not an ordinary person sitting on the FHL board as he was a public servant appointed by the Minister of Fijian Affairs.
"As a public servant the accused should not have done what he did," Mr Blanchflower said. "The accused saw the opportunity and took advantage of it, favouring his friends and family which was unlawful."
Mr Blanchflower said he did not believe that Mr Qarase's private interest in these companies were seriously challenged in the case.
He told the assessors to study the evidence where it says the accused was employed in the public service all the time.
Mr Qarase is charged with six counts of abuse of office and three counts of discharge of duty with respect to property in which he has a private interest.
http://www.fijitimes.com/story.aspx?id=207533
Lawyers address the assessors
July 26, 2012
By JYOTI
PRATIBHA
The defence
and prosecution lawyers in the Fiji Independent Commission Against Corruption
(FICAC) against former Prime Minister, Laisenia Qarase, made closing submissions
to the assessors at the High Court in Suva yesterday.
Defence lawyer, Tupou Draunidalo, addressed the assessors first and summarised what defence felt was evidence that the assessors needed to look at.
This was followed by FICAC senior lawyer, Michael Blanchflower.
The issue of whether or not Qarase was a public servant at the time of the alleged offences was again raised in court by the two lawyers.
Ms Draunidalo told the assessors that Qarase was not on the Fijian Holdings Limited (FHL) board in his capacity as a public servant as he was appointed by the shareholders through the Fijian Affairs Minister.
Mr Blanchflower in his submission told the assessors that Qarase’s “appointment” by a Minister to a board made him a public servant and the laws and rules applicable to a public servant applied to him as well.
Judge Justice Priyantha Fernando will be summing up all evidence and relevant laws for the assessors on Monday.
Defence lawyer, Tupou Draunidalo, addressed the assessors first and summarised what defence felt was evidence that the assessors needed to look at.
This was followed by FICAC senior lawyer, Michael Blanchflower.
The issue of whether or not Qarase was a public servant at the time of the alleged offences was again raised in court by the two lawyers.
Ms Draunidalo told the assessors that Qarase was not on the Fijian Holdings Limited (FHL) board in his capacity as a public servant as he was appointed by the shareholders through the Fijian Affairs Minister.
Mr Blanchflower in his submission told the assessors that Qarase’s “appointment” by a Minister to a board made him a public servant and the laws and rules applicable to a public servant applied to him as well.
Judge Justice Priyantha Fernando will be summing up all evidence and relevant laws for the assessors on Monday.
The charges:
Qarase denies six counts of abuse of office and three counts of discharge of duty with respect to property in which he has a private interest.
It has been alleged that Qarase did not declare his vested interests in Q-Ten, Mavana Investments Limited (MIL) and Cicia Plantation Co-op Society Limited, when he was one of nine board directors of the FHL.
Qarase denies six counts of abuse of office and three counts of discharge of duty with respect to property in which he has a private interest.
It has been alleged that Qarase did not declare his vested interests in Q-Ten, Mavana Investments Limited (MIL) and Cicia Plantation Co-op Society Limited, when he was one of nine board directors of the FHL.
Ms
Draunidalo’s submission:
Ms Draunidalo began her address to the assessors by informing them that the charges against her client were based on events that happened more than 20 years ago.
She said that while FICAC existed to clean up corruption, the charges in relation to the trial were from the time when Qarase was not a politician.
She questioned why these charges were made.
The charges of abuse of office were explained to the assessors by Ms Draunidalo who said that abuse of office happens when somebody uses their power wrongly to personally benefit.
She gave examples of three earlier cases where public officers had been prosecuted for abuse of office including a former assistant commissioner of police, a former permanent secretary and a senior police officer at the Lautoka Police Station.
Ms Draunidalo said the application by Qarase for shares of FHL on behalf of the three companies were properly applied for and paid off in full.
She reiterated that nothing was hidden by Qarase and that the other directors of the board were given all documents signed by Qarase.
Ms Draunidalo said that nothing was concealed and that the documents which were given to the directors when the shares were allocated included details of the directors and shareholders of the companies.
The assessors were told that Qarase and his wife, Leba Qarase, who was also a shareholder of MIL earned very meager returns from their shares held in the company.
Ms Draunidalo said the couple did what any couple would do, that is to invest their savings.
She added that the two had taken risks by investing in the companies and that the returns were not “millions of dollars”.
She said the three companies were not given any preferential treatment nor was it because of corruption that they were allocated their shares.
Ms Draunidalo said law convicts those who had done wrong and questioned what had her client, Qarase, done wrong.
FICAC, she said, would try to state that Qarase is a “greedy man” and hid his interest to earn money.
She insisted that he got nothing from Cicia Plantation Co-op Society, $800 annually from MIL and Q-Ten Investments Limited received about $4800 from its investment in MIL.
Ms Draunidalo said the maximum penalty for a company director who did not properly disclose his interest was $1000 and not the charges that her client faced.
Ms Draunidalo began her address to the assessors by informing them that the charges against her client were based on events that happened more than 20 years ago.
She said that while FICAC existed to clean up corruption, the charges in relation to the trial were from the time when Qarase was not a politician.
She questioned why these charges were made.
The charges of abuse of office were explained to the assessors by Ms Draunidalo who said that abuse of office happens when somebody uses their power wrongly to personally benefit.
She gave examples of three earlier cases where public officers had been prosecuted for abuse of office including a former assistant commissioner of police, a former permanent secretary and a senior police officer at the Lautoka Police Station.
Ms Draunidalo said the application by Qarase for shares of FHL on behalf of the three companies were properly applied for and paid off in full.
She reiterated that nothing was hidden by Qarase and that the other directors of the board were given all documents signed by Qarase.
Ms Draunidalo said that nothing was concealed and that the documents which were given to the directors when the shares were allocated included details of the directors and shareholders of the companies.
The assessors were told that Qarase and his wife, Leba Qarase, who was also a shareholder of MIL earned very meager returns from their shares held in the company.
Ms Draunidalo said the couple did what any couple would do, that is to invest their savings.
She added that the two had taken risks by investing in the companies and that the returns were not “millions of dollars”.
She said the three companies were not given any preferential treatment nor was it because of corruption that they were allocated their shares.
Ms Draunidalo said law convicts those who had done wrong and questioned what had her client, Qarase, done wrong.
FICAC, she said, would try to state that Qarase is a “greedy man” and hid his interest to earn money.
She insisted that he got nothing from Cicia Plantation Co-op Society, $800 annually from MIL and Q-Ten Investments Limited received about $4800 from its investment in MIL.
Ms Draunidalo said the maximum penalty for a company director who did not properly disclose his interest was $1000 and not the charges that her client faced.
Elements:
Ms Draunidalo said FICAC had to prove the elements of the crime – which included whether Qarase was a public servant; did an arbitrary act; abused authority of his office for gain while others were prejudiced.
She said Qarase was not employed by the board, rather, he was an advisor or consultant to the FAB which does not make him a public servant.
She said public servants were paid salaries, something her client was not receiving, adding that he was already employed by the Fiji Development Bank. She added that the private sector had its own rules and that FICAC was mixing the public sector’s rules with the private sector.
Regarding whether Qarase was an advisor to the Great Council of Chiefs (GCC), Ms Draunidalo said Qarase made presentations to the GCC and so had many other people, such as Queen Elizabeth II and this did not make her an advisor to the GCC.
For abuse of office, Ms Draunidalo said there were no rules that disallowed a director from applying for and buying shares of FHL.
She stressed that there was no evidence for gain, therefore, that element was also not proven by prosecution.
Ms Draunidalo questioned how others were prejudiced when shares were bought by those three companies when no body seemed interested in buying shares.
She further stated that FHL was an ordinary company and had no special characters as alleged by prosecution.
Ms Draunidalo said FICAC had to prove the elements of the crime – which included whether Qarase was a public servant; did an arbitrary act; abused authority of his office for gain while others were prejudiced.
She said Qarase was not employed by the board, rather, he was an advisor or consultant to the FAB which does not make him a public servant.
She said public servants were paid salaries, something her client was not receiving, adding that he was already employed by the Fiji Development Bank. She added that the private sector had its own rules and that FICAC was mixing the public sector’s rules with the private sector.
Regarding whether Qarase was an advisor to the Great Council of Chiefs (GCC), Ms Draunidalo said Qarase made presentations to the GCC and so had many other people, such as Queen Elizabeth II and this did not make her an advisor to the GCC.
For abuse of office, Ms Draunidalo said there were no rules that disallowed a director from applying for and buying shares of FHL.
She stressed that there was no evidence for gain, therefore, that element was also not proven by prosecution.
Ms Draunidalo questioned how others were prejudiced when shares were bought by those three companies when no body seemed interested in buying shares.
She further stated that FHL was an ordinary company and had no special characters as alleged by prosecution.
Evidence:
Ms Draunidalo questioned the assessors whose evidence would they prefer – former FHL chairman, Josaia (Joe) Mar, or company secretary Sitiveni Weleilekeba, who was previously charged by FICAC together with Qarase but on separate charges.
She said FHL being a private company was governed by such laws and not those which were applicable to the public service.
Ms Draunidalo said Qarase was an honest and unassuming man who gave years of service to small islands for nothing in return.
Ms Draunidalo questioned the assessors whose evidence would they prefer – former FHL chairman, Josaia (Joe) Mar, or company secretary Sitiveni Weleilekeba, who was previously charged by FICAC together with Qarase but on separate charges.
She said FHL being a private company was governed by such laws and not those which were applicable to the public service.
Ms Draunidalo said Qarase was an honest and unassuming man who gave years of service to small islands for nothing in return.
Mr
Blanchflower’s submission:
Mr Blanchflower also addressed the assessors on the elements of the offence.
However, he stressed that the elements noted by Ms Draunidalo were not the elements of the crimes that Qarase was charged with.
He urged the assessors to read through the agreed facts – which had been agreed by both parties, adding that part of the evidence was already agreed to by defence.
Mr Blanchflower said this was a case of strict rules that govern the lawful conduct of persons employed in the public service.
He said that FHL was not any ordinary company.
Referring to evidence already presented in court by the prosecution witnesses, he said that Qarase was entrusted with special duties by the public.
Mr Blanchflower said these special duties were not entrusted to other directors- Mr Mar and Mr Weleilakeba since they were not appointed to the board by the Fijian Affairs Minister.
He said Qarase was on the board to serve all Fijians and not only his family and friends.
Mr Blanchflower presented a chronology of events, which he said helped the prosecution in their case.
He said in November 1991, the FAB approves FHL to sell shares to public – wholly owned companies, tikinas and provincial councils.
In December 1991, Mr Blanchflower said Qarase transferred the shares he held in Q-Ten to his son and resigned from the directorship in January 1992.
Between March and May that year, Q-Ten Investments Limited applied for FHL shares.
Mr Blanchflower said Qarase transferred the shares and resigned as director so when asked he could state that he is neither the shareholder nor a director of the company.
He said Qarase had strong kinship ties with MIL adding that by 1999, Q-Ten was the second largest shareholder of MIL.
While Mr Blanchflower agreed that the minutes of the meeting did not record everything, everything important was noted which included declaration, had it been made.
He said Qarase knew when the shares would be opened up for public and this knowledge was transferred to the Cicia shareholders, when Qarase advised them to sell off their properties to raise money to invest in FHL.
Mr Blanchflower added that many of the defence witness had given evidence in favour of the prosecution.
The hearing resumes on Monday.
Mr Blanchflower also addressed the assessors on the elements of the offence.
However, he stressed that the elements noted by Ms Draunidalo were not the elements of the crimes that Qarase was charged with.
He urged the assessors to read through the agreed facts – which had been agreed by both parties, adding that part of the evidence was already agreed to by defence.
Mr Blanchflower said this was a case of strict rules that govern the lawful conduct of persons employed in the public service.
He said that FHL was not any ordinary company.
Referring to evidence already presented in court by the prosecution witnesses, he said that Qarase was entrusted with special duties by the public.
Mr Blanchflower said these special duties were not entrusted to other directors- Mr Mar and Mr Weleilakeba since they were not appointed to the board by the Fijian Affairs Minister.
He said Qarase was on the board to serve all Fijians and not only his family and friends.
Mr Blanchflower presented a chronology of events, which he said helped the prosecution in their case.
He said in November 1991, the FAB approves FHL to sell shares to public – wholly owned companies, tikinas and provincial councils.
In December 1991, Mr Blanchflower said Qarase transferred the shares he held in Q-Ten to his son and resigned from the directorship in January 1992.
Between March and May that year, Q-Ten Investments Limited applied for FHL shares.
Mr Blanchflower said Qarase transferred the shares and resigned as director so when asked he could state that he is neither the shareholder nor a director of the company.
He said Qarase had strong kinship ties with MIL adding that by 1999, Q-Ten was the second largest shareholder of MIL.
While Mr Blanchflower agreed that the minutes of the meeting did not record everything, everything important was noted which included declaration, had it been made.
He said Qarase knew when the shares would be opened up for public and this knowledge was transferred to the Cicia shareholders, when Qarase advised them to sell off their properties to raise money to invest in FHL.
Mr Blanchflower added that many of the defence witness had given evidence in favour of the prosecution.
The hearing resumes on Monday.
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