Transcripts from last year’s Commission of Inquiry (COI) read in the Suva High Court yesterday revealed controversial and potentially prejudicial remarks by Commissioner Justice David Ashton-Lewis, including a description of Suva lawyer Tanya Waqanika as “one of those weird-faced creatures.” The remarks were played as part of judicial review proceedings brought by Waqanika on behalf of former Fiji Independent Commission Against Corruption (FICAC) Commissioner Barbara Malimali, who is challenging the COI’s findings into her appointment.
The court heard that the passages form part of a broader section in which Justice Ashton-Lewis recounted anecdotes touching on female nudity, race and body image and drew comparisons between inquiry participants and fictional characters. Waqanika told Justice Dane Tuiqereqere that the commissioner labelled Ms Malimali “deceitful” and “universally corrupt,” and went beyond the COI’s terms of reference, which she said were limited to examining the circumstances surrounding Malimali’s appointment. She argued the transcript shows bias and malice and that Ms Malimali was denied natural justice.
Ms Waqanika told the court her client was notified on January 3 last year that the inquiry would begin on January 6, leaving little time to prepare; legal counsel was secured only one day before proceedings commenced. The lawyer also said Malimali was not given an opportunity to respond to adverse findings or warned that such findings would be made. Waqanika said she had written nine times to the President’s Office raising concerns that the inquiry was exceeding its mandate but received no response.
Questions were also raised about the participation of overseas individuals in the COI. Waqanika criticised the role of Auckland-based lawyer Rajendra Chaudhry and Australian social media activist Alex Forwood, saying both were allowed to attend proceedings, cross-examine witnesses and participate fully while Malimali and her counsel were excluded from parts of the hearing. She noted Chaudhry was not licensed to practise in Fiji and had a prior contempt of court conviction. The court also heard that the COI report was shared with the Fiji military commander and the police commissioner before it was provided to Ms Malimali.
Waqanika pointed out the report contained 17 recommendations, two of which have since been implemented: the dismissal of former attorney-general Graham Leung and the revocation of Ms Malimali’s appointment. She told the court the Office of the Director of Public Prosecutions (ODPP), supported by independent counsel, had found insufficient evidence to lay charges against those implicated by the COI’s findings—an outcome that, she argued, undercuts the justification for some of the report’s recommendations.
Responding for the State, Deputy Solicitor-General Eliesa Tuiloma told the court the Government maintained a neutral position and acknowledged the importance of procedural fairness but said the State did not have access to all COI documents, suggesting records could be lost within the system. Justice Tuiqereqere queried why no application had been made to compel disclosure or why Justice Ashton-Lewis had not been contacted directly; Mr Tuiloma said no such steps were taken because of other court commitments. The hearing, which also covered separate judicial review applications by Suva lawyers Wylie Clarke and Laurel Vaurasi and by Graham Leung, continues.
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