TO BE consistent, the next MP that the Cook Islands Police Service should prosecute is Moana Ioane.
It has now been nearly two years when the “Electoral” Court compelled by Section 100 of the Electoral Act 2004 referred the guilty finding of Moana Ioane for corruption to Police Commissioner Maara Tetava.
In the aftermath of the 20014 general elections nine petitions were filed by the Democrats in the High Court, one being against Moana Ioane, sitting MP for the Vaipae-Tautu constituency.
Appeals were lost by the Demos and of course the Cook Islands Party also filed its own petitions. Ioane was one of the casualties of these court sessions when he was found guilty of corruption. As a result of that decision, Ioane lost his seat and a by-election was called in which he contested and won again. Legally he was not barred from standing again as an MP, but there was a due process of law that requires that his guilty finding under the Electoral Act of 2004 render the matter to be dealt with as a criminal offence under the Crimes Act 1969, in particular under section 113(1).
This section provides for a Minister of the Crown or member of the Executive Council to face imprisonment for a term not exceeding 14 years who corruptly bribes or attempts to bribe any person in his capacity as minister or executive member of the council. Ioane was a minister during the 2014 elections.
As of now, Mr Ioane is one lucky person for not being prosecuted and for enjoying the privileges and perks (including numerous travels on overseas trips) of being a government MP. This is despite the Chief Justice referring the guilty finding of the court to the Police Commissioner.
I am aware that this took place because while I was still the Leader of the Opposition and Democratic Party, I made inquiries to the Secretary of Justice about section 100 of the Electoral Act 2004.
I impressed upon his office of the need for the court to refer the finding to the Cook Islands Commissioner of Police and if they did not, I said I would personally file a complaint to the commissioner. I was advised that the Chief Justice had referred the matter to Tetava. I checked and that was the case.
But remarkably, there has been no indication as to whether prosecution of Ioane will take place, despite that fact that a guilty finding made against him.
This delay had never been explained by the police or the Police Commissioner in any detail, although at one time he said that he was seeking advice from overseas - I think from the Special Fraud Office, the very same law enforcement agency that the commissioner instructed to prosecute Teina Bishop.
The public are rightfully frustrated and just like I am in this column, they are demanding that the Police Commissioner lay his cards on the table as to whether or not prosecution will take place. The risk for the commissioner is that he will be suspected of pandering to the government, perhaps to secure his job, since it is the government who appoints him and renews his appointment. I don’t think for a moment that is the case, but the longer Tetava does not disclose what police will do, the worst people will think of him.
I am told police have been to Aitutaki a number of times to investigate the case and interview witnesses and among the forecasts is that there is a prima facie case to proceed with a prosecution.
Is it a question of lack of funds or lack of resources? If so then the commissioner should have prioritised his funding bid in the government’s annual budget passed a few weeks ago so that he could proceed in this matter.
Or is there a political obstacle that the commissioner has to navigate around or through? Well, the answer only lies with him, and the more he does not account to taxpayers as to what he is going to do and what he has been advised as the option to take, the worse it will be for him.
Lawyers who have discussed this matter with me have referred to issues relating to the required standard of proof. In the electoral court (civil court), Moana Ioane’s matter was decided on the balance of probabilities that he had committed corruption.
It is, however, different in the criminal court because the burden of proof rests with the prosecution and it must prove beyond reasonable doubt that Ioane was guilty of corruption. Some lawyers believe that the criminal requirement of proof is a lot tougher that the civil standard. But how are we to know, unless of course the matter is put to the court to decide. The standard of proof might be different, but the facts that capture corruption under the definitions of corruption are the same. So the likelihood for prosecution is much higher and much more certain.
Of course this is where it becomes interesting. With Teina Bishop out of the way, is the Government safe at all? Can it now govern with certainty? I do not think so.
I believe PM Puna, currently in Manihiki to celebrate Constitution in his constituency, is not out of the sludge yet. He has 12 MPs and Moana Ioane’s conviction could cut that number to 11.
Then, I say, he will advise the QR to dissolve Parliament and call a new general election.