Article by AsiaPacificReport.nz
From The Fiji Times
By Tevita Vuibau and Nasik Swami in Suva
Lawyers acting for Fiji’s now-suspended National Federation Party (NFP) have demanded an explanation from the Registrar of Political Parties on its decision to suspend the party.
They say NFP will appeal against the suspension to the High Court unless the suspension notice is withdrawn.
On Monday, Registrar of Political Parties Mohammed Saneem suspended the NFP on what he said was a breach of section 26(1) of the Political Parties Decree 2013.Under section 26(1) of the decree, audits of party accounts must be carried out “by an auditor certified by the Fiji Institute of Accountants”.
The Registrar said the NFP was in breach as the auditors of their accounts — APNR Partners — “did not hold a valid Certificate of Public Practice under section 22 of the Accountants Act.”
But in a letter dated February 4, 2016, Munro Leys partner Richard Naidu raised questions regarding the interpretation of the decree; their decision to immediately suspend the party without an opportunity to be heard on that decision; and why they believed the suspension would remedy the alleged breach.
Last night, Saneem confirmed receiving the copy of the letter.
However, he said it was their procedure not to divulge details of correspondence between his office and political parties.
“The Registrar always acts in good faith with the parties. As a result, we are not able to release any documents that a party submits unless it’s required to be published,” Saneem said.
In the letter, Naidu alleges the Registrar incorrectly interpreted Section 26(2) saying that “there is no such thing as ‘an auditor certified by the Fiji Institute of Accountants’”.
“You incorrectly suggest that this (an auditor certified by the Fiji Institute of Accountants) means a person holding a certificate of public practice under Section 22 of the Fiji Institute of Accountants Act,” Naidu said.
“The institute does not certify ‘auditors’. It certifies ‘members who are either provisional, licensed, affiliate or chartered accountants, certain of whom (we call them ‘CPPs’ for short) must hold certificates of public practice.
“You cannot, in interpreting the test for an auditor’s qualifications under the decree, insert into the test words that do not exist.
“It is not clear what the decree means, but you cannot hold NFP to a non-existent legal test.”
In the letter, Naidu noted that under the decree, the Registrar had discretion to suspend the party “to enable political party to remedy its breach”.
But he asked Saneem why he thought suspending the party would achieve this.
‘Remedy the breach’
“The power to suspend is not to punish. It is to enable compliance. Let us assume, for the purposes of argument, that you are right about the breach,” Naidu said.
“NFP can remedy the breach just as easily when it is not suspended. So why did you suspend it? How would suspension “enable” NFP to remedy this particular breach?”
Naidu also claimed the Fijian Elections Office was aware of complaints about NFP’s choice of auditors six weeks before the suspension and did not notify the NFP of this, thereby depriving it of a chance to remedy the situation.
“Why were these concerns not drawn to NFP’s attention immediately, as natural justice would ordinarily require, to allow NFP to address them directly with you, or to allow NFP (if it chose) to take the relatively simple step of obtaining another audit?”
Naidu also questioned the Registrar’s claim that a suspended political party could not operate, function, represent or hold itself out to be a political party as that prohibition did not exist in the decree.
He said political parties existed to voice the political interest and concerns of their members who are citizens of Fiji.
And he added that to deprive the members of NFP of those rights was inimical to the democratic process and a breach of their political rights under Section 23(1) of the Constitution.