Prime Minister Voreqe Bainimarama

The case involving former Prime Minister Voreqe Bainimarama and former Commissioner of Police Sitiveni Qiliho has been transferred to the High Court for trial pursuant to Section 188 of the Criminal Procedure Act.

In this case, Bainimarama is charged with one count of making unwarranted demands as a public official, while Qiliho faces two counts of abuse of office.
It is alleged that between May and August 2021, Bainimarama pressured then Acting Police Commissioner Rusiate Tudravu to either dismiss officers Penieli Ratei and Tomasi Naulu or resign.

Last month, a Notice of Motion accompanied by a supporting affidavit was filed to seek an order for the transfer of the present proceedings to the High Court.

This position followed an earlier ruling delivered by the High Court which indicated that the constitutional interpretation in question constitutes a substantive trial issue.

Accordingly, the State submitted that such matters fall within the exclusive jurisdiction of the High Court and should be determined during trial proceedings in the High Court.

The defense opposed the application and filed an affidavit in opposition, stating that the constitutional issue may appropriately be addressed in this court as a pre-trial matter pursuant to the provisions of the Criminal Procedure Act.

Furthermore, it was submitted that the respondents intend to raise this issue as part of their defense, and that the Magistrates’ Court is competent to determine the matter at that stage.

Earlier this month, both parties appeared before the court and made oral submissions.

The Magistrate stated that in the present matter, the first and second respondents are charged with offenses carrying maximum penalties of twelve and ten years’ imprisonment, respectively.

The Magistrate said that these are undoubtedly serious offenses, as per the Crimes Act.

The Suva Magistrate also said that the anticipated trial duration is approximately one month, during which the prosecution intends to call fifteen witnesses, and there are no agreed facts between the parties.

However, these factors, while significant, do not in themselves warrant a transfer to the High Court, particularly in light of the respondents’ preference for the trial in this court.

The Magistrate further stated that a transfer to the High Court may result in the respondents losing certain appellate rights that would otherwise be available to them if the trial proceeds in the Magistrates’ Court.

Magistrate Shageeth Somaratne said that the central issue now before the court is whether the matter raises a constitutional/legal question that may have broader implications for other pending cases.

Magistrate Somaratne said that this issue requires interpretation of the Constitution and, therefore, falls within the exclusive jurisdiction of the High Court.
The Magistrate also said that he accepts the submission by the respondents that the Magistrates’ Court does possess limited interpretive jurisdiction under Section 100(7) of the Constitution.

However, as observed by Justice Rajasinghe in Saneem and State, such jurisdiction is confined to questions that arise during the course of proceedings before this court.

It does not extend to matters that fall outside the procedural scope of the trial or that require broader constitutional adjudication dealing with a breach of rights.

He also says that the respondents have, through their submissions, indicated their intention to raise a defense under Section 163 of the Constitution during trial, contending that the second respondent is exempt from prosecution under the Crimes Act.

Magistrate Somaratne says although the respondents reject the applicant’s characterization of this defense as an assertion of “immunity,” he finds that, if accepted, the respondents’ position would amount to a claim that the second respondent is not subject to prosecution for the offense of Abuse of Office due to constitutional status.

The Resident Magistrate says that he is mindful of the respondents’ concerns, particularly regarding the potential for increased legal costs should the matter proceed in the High Court for trial.

The Magistrate says he has sympathy for this position.

However, given the far-reaching implications of the legal issue at hand for this case, other pending cases, and future proceedings involving constitutional office holders, he is satisfied that the interests of justice, consistency in the application of constitutional law and Crimes Act provisions, and judicial economy support the transfer of this matter to the High Court.

The Magistrate further adds that should the High Court determine this contested issue and remit the proceedings back to this court, he is inclined to grant an expedited hearing date within the current calendar year, subject to the availability of counsel for both parties.

He says such a course of action will serve the dual purpose of demonstrating to the public that undue delays in high-profile cases are not tolerated, while also safeguarding the respondents’ right to a trial within a reasonable time frame.

The Magistrate then granted the application by the State and transferred the matter to High Court for a trial.

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