The King's Counsel for lawyers Wylie Clarke and Laurel Vaurasi has told the High Court that the Chair of the Commission of Inquiry into the appointment of Barbara Malimali as FICAC Commissioner, Justice David Ashton-Lewis was biased and he did not provide Clarke and Vaurasi natural justice.
While making the submission in the Judicial Review hearing filed by Malimali's counsel Tanya Waqanika, former Attorney General Graham Leung, Clarke and Vaurasi, King's Counsel Martin Daubney says Justice Ashton-Lewis was appointed to conduct the COI in accordance to the Terms of Reference and to follow the rules of natural justice.
He says Justice Ashton-Lewis failed in each of those elements.
Daubney says Justice Ashton-Lewis strayed well beyond the Terms of Reference and he did not give Clarke and Vaurasi the opportunity to be heard on allegations of misconduct.
The King's Counsel says Justice Ashton-Lewis delivered to the Prime Minister a report which contains the most grossly defamatory allegations against leading members of the legal profession of the country.
Daubney says Justice Ashton-Lewis gave the report to the Prime Minister without notice to Clarke and Vaurasi.
He says the Prime Minister then gave it to the President with the recommendation to publish it.
He says the Prime Minister did this without being satisfied that Clarke and Vaurasi were given any opportunity to respond.
Daubney says he should have taken those matters into account in accordance to Section 16 of the Constitution.
He says the decision of the Prime Minister led to the publication of material impugning Clarke and Vaurasi and it gives rise to their ability to claim damages.
The King's Counsel, while referring to the COI report, says Justice Ashton-Lewis' report on the findings of Clarke and Vaurasi went to matters of post-appointment conduct.
He explains that this is outside the Terms of Reference which is about how Malimali was appointed, so when Clarke and Vaurasi came into the scene, the appointment was already made.
He says whatever they did has nothing to do with Malimali's appointment.
Meanwhile, counsel for Prime Minister Sitiveni Rabuka, Simione Valenitabua has filed a strike out application against Malimali's application which will be heard at a later time.
The hearing continues and is expected to conclude on Sunday.
