The out of court settlement between the Judicial Services Commission and the Office of the Attorney General is back on track as a hearing on the terms will be held in January after High Court Judge Justice Dane Tuiqereqere ruled that the Attorney General has the authority to be the counsel for the Commission of Inquiry into the appointment of Barbara Malimali as the Commissioner of FICAC.
The JSC applied for a judicial review to quash the findings of the COI.
Following submissions made this morning, Justice Tuiqreqere has also accepted that the JSC can file an application to discontinue the case against COI Chair Justice David Ashton-Lewis.
He has also decided that he can make orders on the settlement reached, as long as they are lawful.
However, the issue remains on whether the terms of the settlement will be made public after the court has made orders on it.
Justice Tuiqreqere has given time until next Tuesday to the counsel for COI and the Attorney General, Solicitor General Ropate Green to get instructions from his clients if they want the terms of settlement to be confidential.
He says if the terms of the settlement are not confidential, then it must be circulated to Nagin by the 16th of January.
JSC counsel Isireli Fa and Justice Ashton-Lewis' counsel Hemendra Nagin did not have objections to having the terms of settlement not to be confidential.
Nagin has indicated that he will be applying for costs incurred.
Meanwhile, in his submission, Green confirmed he is getting instructions from the President and the Prime Minister as the counsel for the COI.
He says once the report is submitted to the President, the duty of the Chair of the COI is complete.
Fa, in his submission, says Section 11 of the Commission of Inquiry Act provides as clear as daylight that no evidence can be used in civil and criminal case.
He says the COI report makes scathing recommendations to have criminal proceedings and asks if the evidence cannot be used, then why make the recommendations.
Fa says people of the country are being dragged down the drain because of Justice Ashton-Lewis and this is why they need to settle this matter and remove him from the proceedings.
He adds that it is an abuse of process to drag the leaders in, and the only result will be chaos.
Nagin had submitted that the Judicial Review proceedings are invalid because of Section 11 of the COI Act.
He also says he had been appearing for the COI on the instructions of Justice Ashton-Lewis as the Chair and the COI have the same interest.
Justice Tuiqereqere stated that because they have the same interest, it does not mean Justice Ashton-Lewis can instruct counsel.
Nagin responded that he accepts this but argued that he appeared as counsel for the COI on the three occasions without any objection.
When stated by Justice Tuiqereqere that it does not make it legal, Nagin said he would leave that decision to the him.
He adds that allegations of bias and unfairness have been made against Justice Ashton-Lewis and he needs to defend himself.
The hearing on the terms of the settlement and the discontinuation application will be held on the 22nd of January.
