The Suva High Court is set to examine the details of an out-of-court settlement between the Judicial Services Commission (JSC) and the Office of the Attorney General late next month. High Court Judge Justice Dane Tuiqereqere has affirmed that the Attorney General holds the authority to act on behalf of the Commission of Inquiry (COI) regarding the appointment of Barbara Malimali as the Commissioner of the Fiji Independent Commission Against Corruption.
Justice Tuiqereqere acknowledged that the JSC could formally request to discontinue its case against COI Chair Justice David Ashton-Lewis, who is listed as the third respondent in this matter. The JSC previously filed a judicial review application aiming to nullify the findings of the COI.
The court also established that it retains the power to issue orders regarding the settlement, contingent upon the legality of the terms. Justice Tuiqereqere highlighted that it remains undecided whether the settlement terms will be disclosed to the public. He requested that counsel for both the JSC and Attorney General Ropate Green provide instructions from their clients on issues surrounding confidentiality by next Tuesday.
Counsel Isireli Fa, representing the JSC, and Hemendra Nagin, counsel for Justice Ashton-Lewis, did not express any objection to making the terms public. Meanwhile, Nagin indicated his intent to apply for costs incurred during the proceedings.
In his submission, Green stated he is awaiting instructions from the President and Prime Minister in his role as counsel for the COI. Fa raised concerns regarding Section 11 of the Commissions of Inquiry Act, which prohibits evidence from a commission being utilized in any civil or criminal proceedings. He questioned the rationale behind the COI making recommendations for criminal proceedings if such evidence is unusable and remarked that the ongoing proceedings have caused harm to the country, describing it as an abuse of process that could lead to confusion.
Nagin countered that the judicial review application is invalid due to Section 11 of the Act and reiterated his position that he acts on the instructions of Justice Ashton-Lewis, emphasizing a shared interest between them. Justice Tuiqereqere clarified that such shared interests do not grant Justice Ashton-Lewis the authority to instruct counsel.
The court will reconvene on the 22nd of next month for the matter concerning the settlement terms and the JSC’s application to discontinue proceedings. This upcoming hearing represents a significant step in the ongoing legal discussions surrounding the COI and its findings, with implications that could impact the transparency and accountability of judicial processes in Fiji.
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