The High Court heard fresh legal argument this week over whether those criticised in the Commission of Inquiry into the appointment of the Fiji Independent Commission Against Corruption (FICAC) commissioner needed to be warned of adverse findings before the report was published, as Prime Minister Sitiveni Rabuka’s counsel told the court no such warning was required.
At a sitting that ran through the weekend, Justice Dane Tuiqereqere heard three judicial review applications challenging the COI report compiled by Supreme Court judge David Ashton-Lewis. Simione Valenitabua, representing Mr Rabuka, told the court the Prime Minister acted lawfully when he authorised publication after the report was presented to the President in May last year. Valenitabua argued a commission of inquiry is a fact-finding exercise rather than a trial, and that the terms of reference had put those under scrutiny on notice of the matters being investigated.
The applicants include former FICAC commissioner Barbara Malimali, who was sacked after the COI report was delivered; former attorney-general Graham Leung, who also lost his position following the report; and lawyers Wylie Clarke, president of the Fiji Law Society, and his predecessor Laurel Vaurasi, both of whom were criticised in the report. Counsel for the applicants say they were denied natural justice because they were not given an opportunity to respond to adverse findings before the report was furnished to the President.
Justice Ashton-Lewis’s legal representative, Hemendra Nagin, defended the inquiry’s handling and urged the court that the COI report carried no direct legal consequence, citing section 11 of the Commissions of Inquiry Act 1946 which limits the use of inquiry evidence in civil or criminal proceedings. He also relied on statutory immunity said to protect Justice Ashton-Lewis for acts done in his capacity as commissioner. Nagin told the court that all relevant witnesses had been called, were cross-examined and that a decision-maker is entitled to assess credibility without recalling witnesses.
Justice Tuiqereqere, however, probed the limits of those submissions, observing that fairness may require a decision-maker to put newly arisen allegations to a witness before making adverse findings. That point directly addresses the applicants’ contention that fresh or unexpected lines of criticism in the report were not put to them prior to publication. Nagin responded that the COI was lawfully permitted to regulate its own procedure and to admit and consider evidence as it saw fit.
Legal teams representing the lawyers criticised in the report pressed allegations of bias and prejudgment. Professor Patrick Keyzer, appearing for Mr Clarke and Ms Vaurasi, told the court that Justice Ashton-Lewis used inflammatory language — describing lawyers as “malicious” and “vultures” — and that such remarks demonstrated a predisposition against those who were the subject of findings. Keyzer said even a deputy Solicitor-General had conceded in court that the language was “totally out of line,” emphasising the seriousness of the charge. He also argued that findings of bullying, coercion, intimidation and conspiracy in the report were unsupported by evidence and therefore irrational.
Oliver Morris, for Mr Leung, put a separate but related contention that the former attorney-general’s dismissal was a foreseeable consequence of what he characterised as an unlawful report, and that any loss flowing from the commissioner’s conduct should be recoverable as damage for which the State bears responsibility. Tanya Waqanika continued to argue the Malimali application during the weekend sitting. The weekend hearings were aimed at completing oral submissions in the three judicial review matters; the court has yet to deliver a decision.
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