High Court Judge, Justice Dane Tuiqereqere has ruled that the Commission of Inquiry report into the appointment of Barbara Malimali as FICAC Commissioner, in its entirety is null and void, the COI report is unlawful, the COI report's adverse findings are irrational and have been quashed, and that President Ratu Naiqama Lalabalavu and Prime Minister Sitiveni Rabuka failed to provide the applicants natural justice.
The applicants who challenged the Commission of Inquiry report through a Judicial Review were former FICAC Commissioner Barbara Malimali, former Attorney General Graham Leung, and lawyers Wylie Clarke and Laurel Vaurasi.
In his ruling this afternoon, the judge has determined that the President, the Prime Minister and the Commission of Inquiry, breached principles of natural justice for not giving the applicants the opportunity to respond to the adverse findings against them.
Justice Tuiqereqere says that the work of the Commission of Inquiry after 1st February 2025, including the report is ultra vires or unlawful.
He found that the extension of the Commission of Inquiry beyond 31st January 2025 was ineffective.
As a result, the actions of the Commissioner after that date, including the completion of his report dated 1st May 2025, were unlawful.
Justice Tuiqereqere has also found that adverse findings and recommendations against the applicants including Malimali, former Attorney General Graham Leung and lawyers Wylie Clarke and Laurel Vaurasi were unlawful, including those relating to a meeting at the FICAC office on 5th September 2024.
The applicants had argued that the findings were outside the Commission’s terms of reference and that they were denied procedural fairness and natural justice.
The court also considered claims that some of the Commissioner’s findings were irrational and that his conduct during the inquiry gave rise to a reasonable apprehension of bias.
The applicants had further challenged the decision by the President, on the advice of the Prime Minister, to release the Commission of Inquiry report publicly.
The judge also says the COI Chair, David Ashton-Lewis should have provided a draft of the adverse findings against the applicants to them and an opportunity to respond before compiling the report.
He says the tirade against lawyer, Wylie Clarke in the COI report has no place in the report and adverse findings against him are baseless.
While referencing the comments by Justice Ashton-Lewis’ during radio interviews including his ‘crocodile in the pond’ statement, Justice Tuiqereqere says it is obvious that the test for obvious bias is satisfied.
Justice Tuiqereqere says the COI report dated 1st May 2025 also made some valid points about the appointment process and the circumstances of the Tuvalu issue were relevant to Malimali’s suitability for the position, as was the fact of the live FICAC investigation into Malimali at the time of her appointment.
He says these matters were required to be disclosed to the Judicial Services Commission and it was not appropriate for Malimali to be appointed Commissioner while an active criminal investigation against her was pending.
He says however, he has found that there are several significant problems with the conduct of the COI, its report and the release of that report to the public.
We are currently trying to get the Prime Minister's comments on what is his next step after the COI being declared unlawful by the court, and the judge also saying that the President and Prime Minister did not afford the applicants the principles of natural justice.
