The Fiji Independent Commission Against Corruption (FICAC) cannot compel someone to give access privileges or passwords to them.
This was the ruling of Suva Magistrate Jeremiah Savou when he acquitted Pacific Islands Development Forum secretary general Solo Mara of FICAC charges of disobeying a lawful order and giving false information.
The court heard that on January 23, 2020, FICAC officers approached Mr Mara at his Suva residence with a warrant to search and seize. In the execution of the warrant, the FICAC officers required him to provide them with the password for his personal email account.
He provided the officer with a password, but the FICAC officer could not log into the account.
The officers returned the following day and required him to provide the password – which he refused to do.
Mr Savou said the legal question was in relation to the search warrant and the actions which ensued.
Section 10 (b) of the FICAC Act says a magistrate, if satisfied by information given to him or her, that there is reason to believe that anything in any place of premises contains evidence of the commission of an offence mention in section 10 of the Act, may authorise any officer and assisting officers to enter, search and seize evidence.
Mr Savou said section 10 of the Act empowered the officer to enter, search and seize, but not to compel access privileges or passwords from a person.
“Section 10 of the FICAC Act warrants the conclusion that the empowerment is reserved only for entry of the premises, search on the said premises and ultimately seizing anything which is or contains evidence of the commission of an offence,” he said.
“There is no specific wording which grants an extension to compel access to devices, computers and the like.
“If it were so, then the legislation would have made specific reference to the same.”
Mr Savou noted that since being promulgated in 2007, and when becoming an Act and being amended in 2016, there was no expansion of powers for search and seizure by Parliament to include a power to compel a person to give access privileges or passwords to FICAC under the Act.
He said although FICAC had listed the password access privileges in the warrant, they could not compel a person to provide them, but would have to discover them in the search.
Mr Savou said Mr Mara’s actions did not constitute an offence and concluded the charges were not made out, acquitting him of the charges.
