MUNRO LEYS

Munro Leys, Lawyers & Notaries Public

Pacific House, Butt Street, GPO Box 149 Suva, Fiji
Phone +679 331 4188 Fax +679 330 2672
Web www.munroleyslaw.com

4 February 2016

Our ref M999-009 RKN:ik

Your ref

Mr Mohammed Saneem
Registrar of Political Parties and Supervisor of Elections
59-63 High Street
Toorak
SUVA
By hand delivery
By email msaneem@gmail.com

The Political Parties (Registration, Conduct, Funding and Disclosures)

Decree 2013 (Decree)
Our client: The National Federation Party (NFP)
Your letter dated 1 February (Letter) and purported notice of suspension
(Suspension Notice)
Introduction
1.

NFP has handed to us your Letter and Suspension Notice for reply. We address each in
turn below.

Letter
Qualifications of NFPs auditors
2.

You correctly state1 that under s. 26(2) of the Decree the accounts of a political party must
be audited by an auditor certified by the Fiji Institute of Accountants. You incorrectly suggest2
that this means a person holding a certificate of public practice under s. 22 of the Fiji
Institute of Accountants Act.

3.

We assume you have now worked out that there is no such thing as an auditor certified by
the Fiji Institute of Accountants. 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.

4.

The (meaningless) reference to an auditor certified[etc] in the Decree does not mean that
only a CPP may audit the accounts of a political party. NFP argues that a member of
APNR Partners, NFPs auditors, holds an Institute-issued copy of a certificate saying he is

at Paragraph 4 of your Letter

at Paragraph 5 of your Letter

a chartered accountant. Your interpretation of the phrase is no more or less correct than
NFPs.
5.

You cannot, in interpreting the test for an auditors qualifications under the Decree, insert
into the test words that do not exist. Other laws for example the Trust Accounts Act,
which sets the rules for trust account auditors3 are explicit in requiring that only a CPP
holder may conduct the audit. It is not clear what the Decree means, but you cannot hold
NFP to a non-existent legal test.

6.

Your Letter recites s.22 of the Fiji Institute of Accountants Act. That section does not deal
with the question of who may audit the accounts of political parties. Your role is to
interpret and apply s. 26(2) of the Decree. We refer you back to paragraph 2 of this letter.
For the reasons above, paragraphs 7 and 8 of your Letter4 are irrelevant.

Purported decision to suspend

7.

You have given notice to NFP to remedy its breach of the Decree under s.19(2). You
have then purported to suspend NFP under s.19(3).

8.

The power to suspend is exercised under s.19(3). That provision says that you may
(emphasis added) suspend the registration of a political party to enable that political party to
remedy the breachIn other words, it is a decision to be exercised in your discretion, to
achieve a specified purpose. You do not have to suspend a political party.

9.

As an accountable public officer, please explain:

(a)

why you exercised your discretion to suspend NFP - clearly a decision to its
detriment - without first giving it an opportunity to be heard on that decision, in
accordance with the rules of natural justice

(b)

why, given that the purpose of suspension is to enable [the] political party to remedy the
breach, you thought that suspending NFP would achieve that. 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. 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?

10.

What is of particular interest is that you were apparently advised on or about 16 December
2015 more than six weeks before the date of your Letter of the Institutes concerns
(valid or otherwise) about APNR Partners. Why were these concerns not drawn to NFPs
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?

11.

Your reference of these facts to FICAC are noted and will be addressed separately.

12.

Lastly, you advise that during the period of suspension NFP shall not be entitled to any of the
rights and privileges specified under the Decree. We have searched but cannot find in the
Decree any rights and privileges specified in the Decree for registered political parties.

s.11(3)(a), Trust Accounts Act 1996

There seems to be some confusion about membership of CPP(Fiji). There is no such thing as CPP (Fiji).

Registrar of Political Parties and Supervisor of Elections 04 February 2016

Accordingly please identify what rights and privileges under the Decree you believe
NFP is no longer entitled to.
Suspension Notice
13.

Most of the issues raised in the Suspension Notice are addressed above. However the
Notice says that a party suspended under s.19(3) cannot operate, function, represent or hold itself
out to be a political party. That prohibition does not exist under s.19. Please tell us why you
claim this.

Conclusion
14.

For the reasons above, we ask you to address the following matters to avoid an appeal to
the High Court pursuant to s.30(1):
(a)

please explain your reasoning for concluding that the s.26(2) words in the Decree,
an auditor certified by the Fiji Institute of Accountants, mean a person holding a Valid
Certificate of Public Practice under s. 22 of the Fiji Institute of Accountants Act

(b)

please explain why you exercised your discretion to suspend NFPs registration as a
political party without first giving it the opportunity to be heard on that decision,
particularly given that the matters giving rise to the suspension first came to your
attention six weeks before your decision

(c)

please explain why you believed, in the exercise of that discretion, that suspending
NFP would enable [it] to remedy the breach you have specified in the
Suspension Notice

(d)

please explain:

(e)

15.

16.

(i)

what specified rights and privileges are given to registered political

parties under the Decree and

(ii)

accordingly what NFP may or may not do while purportedly suspended

please tell us why you say in the Notice that a suspended political party cannot
operate, function, represent or hold itself out to be a political party. We cannot find any
legal basis for this in the Decree.

We suggest that the correct steps for you to take are to:
(a)

withdraw the purported suspension and

(b)

bring to the attention of NFP your concerns about its audit in a reasonable and
proportionate way (as s.16(1)(a) of the Constitution would appear to require).
Whether NFP agrees or does not agree with what you say, it is a relatively simple
matter for NFP, if it chooses, to obtain another audit, without the need for you to
take sudden and precipitate action to suspend it.

Political parties do not exist for themselves or their office bearers. They exist to voice the
political interests and concerns of their members, who are citizens of Fiji. To suddenly,
disproportionately and unreasonably deprive the members of NFP of those rights is

Registrar of Political Parties and Supervisor of Elections 04 February 2016

inimical to the democratic process and a breach of their political rights under s.23(1) of the
Constitution. No doubt a person in your position understands this well.
Yours faithfully
MUNRO LEYS

Richard Naidu
Partner
Direct Dial +679 322 1816
richard.naidu@munroleyslaw.com.fj
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Registrar of Political Parties and Supervisor of Elections 04 February 2016