The lawyer representing former supervisor of elections Mohammed Saneem and former attorney-general Aiyaz Sayed-Khaiyum has applied to have acting DPP Nancy Tikoisuva recused from the case.
Devanesh Sharma made and served the application before magistrate Yogesh Prasad yesterday.
The case was listed for hearing into the State’s motion to have Mr Saneem and Mr Sayed-Khaiyum’s substantive case transferred to the High Court for interpretation.
Mr Sayed-Khaiyum is charged with one count of abuse of office while Mr Saneem is charged with one of receiving a corrupt benefit.
Mr Saneem faces a charge of receiving a corrupt benefit by obtaining deductible relief amounting to $55,944.03 as backpay from Mr Sayed-Khaiyum.
Mr Sharma requested that the recusal issue be properly sorted first because there was no reason to rush the transfer given the trial dates might be set for 2026, but Mr Prasad objected and directed that the hearing proceed.
The defence had made the recusal application on the issue which originated when Deputy DPP John Rabuku agreed to have the three issues of the SoE heard in the High Court, but Ms Tikoisuva, on another occasion, informed the court the matter would not be transferred to the High Court.
According to Mr Sharma, this showed prejudice and unfairness, and that Ms Tikoisuva was to be given an opportunity to reply.
Mr Prasad will call the recusal for mention at the next court sitting.
Meanwhile, Ms Tikoisuva is transferring the matter under Section 188 (2) of the Criminal Procedures Act for the interpretation of Section 163 which is a constitutional issue relating to the definition of “employed in the civil service” in the Crimes Act and “public official” under the 2013 Constitution.
She argued that the issue be tried in the High Court, which has unlimited jurisdiction to hear constitutional issues while the lower court does not, and even though the application was made during the eve of trial — now vacated —the matter can still be transferred.
Objection to move
Suva lawyer Devanesh Sharma will make an application for the assistant Director of Public Prosecutions (DPP) to be recused from presiding over the case of former prime minister Voreqe Bainimarama and former police commissioner Sitiveni Qiliho.
Both appeared before magistrate Shageeth Somaratne in the Suva Magistrate’s Court yesterday.
Mr Sharma also confirmed they were objecting to the State’s motion to have the pair’s substantial matter transferred to the High Court for trial. Mr Bainimarama is charged with unwarranted demands by a public officer between May 21 and August 18, 2021.
He is accused of demanding former acting police commissioner Rusiate Tudravu to terminate the services of Sergeant Penieli Ratei and Constable Tomasi Naulu.
The particulars of the offence state Mr Tudravu was told he would have to resign if he did not terminate the officers’ work contract. Qiliho is also charged with two counts of abuse of office for reviewing the disciplinary action decision made by Mr Tudravu.
Mr Sharma filed his objections on the basis that the matter was a pretrial issue where the lower court had jurisdiction to interpret constitutional issues.
The constitutional issue relates to the definition of “employed in the civil service” in the Crimes Act and “public official” under the 2013 Constitution.
