Former Fiji Independent Commission Against Corruption (FICAC) commissioner Barbara Malimali has told the High Court she was denied natural justice and is asking that the Commission of Inquiry (COI) report that tarnished her reputation be declared null and void.
In fresh submissions on behalf of Ms Malimali, Suva lawyer Tanya Waqanika told Justice Dane Tuiqereqere on Tuesday that Malimali, like other applicants William Wylie Clarke, Laurel Vaurasi and Graham Leung, was never given an opportunity to respond to adverse findings before those findings were published. Waqanika argued the inquiry into Malimali’s suitability for appointment as FICAC commissioner fell outside the COI’s terms of reference, and that the manner in which the Commissioner, Justice David Ashton-Lewis, conducted the probe amounted to a denial of natural justice.
Waqanika further told the court that Justice Ashton-Lewis had formed a prejudicial view of Malimali, saying he regarded her as “universally corrupt.” She also alleged bias on the part of Prime Minister Sitiveni Rabuka in recommending Justice Ashton-Lewis to lead the COI, noting the Prime Minister had known the Commissioner since 1992. Counsel added that Justice Ashton-Lewis was aware of a leaked version of the COI report and an accompanying video circulating on social media prior to the report’s final publication.
The applicants seek the COI report to be declared null and void, together with other declaratory relief. The State told the court such a remedy would be disproportionate. State lawyers submitted that where a commission has completed its work and issued its report, remedies such as certiorari are no longer appropriate and the court’s role should be limited to declaring any procedural failings without disturbing the report as a whole. The State also opposed claims for reputational damages in judicial review proceedings and rejected arguments seeking to hold the State vicariously liable, stressing the Commissioner’s independence.
On more specific claims, Crown counsel told the court damages for loss of office were not available to a former Attorney‑General because the role is non‑tenured and subject to the Prime Minister’s discretion. When counsel for the applicants raised the “defamatory and extreme language” used in the COI report, Justice Tuiqereqere probed the State’s view on unusually harsh descriptions of the applicants. The State acknowledged portions of the report “had gone overboard,” describing some language as harsh and expressing sympathy for those affected.
This hearing represents the latest development in litigation arising from the COI and earlier High Court decisions challenging aspects of the inquiry. Earlier this year the High Court found aspects of Malimali’s dismissal unlawful; the government subsequently faced scrutiny over how the COI was appointed and conducted. The High Court will resume the judicial review hearing tomorrow at 10am.
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