Former FICAC Commissioner Barbara Malimali’s counsel, Tanya Waqanika says that Prime Minister Sitiveni Rabuka and the Chair of the Commission of Inquiry into Malimali’s appointment, Justice David Ashton-Lewis, have been friends for over 30 years, and it would seem that Justice Ashton-Lewis was specifically handpicked by Rabuka to conduct the COI and to search for the “crocodiles in the pond”.
While making her submission in the judicial review hearing filed by Malimali, former Attorney-General Graham Leung, and lawyers Wylie Clarke and Laurel Vaurasi, Waqanika says the words of Justice Ashton-Lewis condemned him, and he did not bring an impartial mind to the inquiry.
She says the friendship and possible conflict should have been disclosed to the parties at the commencement of the COI.
Waqanika says that, according to Justice Ashton-Lewis’ statement in a radio show, he said that his friend, the Prime Minister, contacted him in October 2024 and asked if he would be the Commissioner of the COI.
She says in the same interview, Justice Ashton-Lewis stated, “David, would you please reveal the crocodiles in the pond? And I did that.”
Waqanika says he already had it in his mind that Malimali was corrupt and unsuitable for the job, and these views were planted before he even received the commission from the President.
She says that in Malimali’s affidavit, it is stated that, according to her research, in the lead-up to the 2022 General Elections, Justice Ashton-Lewis publicly supported and cheered on the then People’s Alliance leader, now Prime Minister, on his Facebook page.
She also highlighted that the COI went outside the scope of its Terms of Reference, as there was only a gazette notice on the COI which made no mention of the appointment of Janet Mason as counsel assisting the COI.
The counsel says that what is contained in the COI report was not gazetted and is therefore fraudulent, as it includes Mason’s appointment and extends the scope of the
COI.
Waqanika says the investigation should have been confined to the lead-up to Malimali’s appointment, and that the extension is a breach of natural justice.
She says Malimali made about nine correspondences with the Office of the Prime Minister regarding the COI going beyond its scope but received no response.
The lawyer says the Prime Minister knew of the breach, but the only response they received was from Justice Ashton-Lewis, who said there were obstacles.
She also highlighted that complainant Alex Forwood and Rajendra Chaudhry were not included in the Terms of Reference but were allowed to cross-examine witnesses.
The counsel says they were not allowed to be present during the testimonies of Manoa Kamikamica, Deputy DPP John Rabuku, MP Semi Koroilavesau, and Adi Vuki Qionibaravi, while Forwood and Chaudhry were.
She says Forwood and Chaudhry had more rights than Malimali.
She says they sat through all testimonies and were even allowed to cross-examine Chief Justice Salesi Temo, former President of the Court of Appeal and current Speaker Filimoni Jitoko, the Prime Minister, and two other Fijian citizens.
Waqanika says no explanation or ruling was given as to why they were told to remain outside during these testimonies.
Waqanika says Malimali was not given the opportunity to be heard before the report was submitted to the President and published, especially as her employment and reputation were at stake.
She also says the Commission exceeded its jurisdiction by stating that the FICAC Act is unconstitutional, which can only be determined by a court, and by saying that the Chief Justice should be charged.
Waqanika also highlighted that Justice Ashton-Lewis, in the COI report, called Malimali deceitful and corrupt, which is contrary to what he said in the hearing where he stated that he had positive feelings towards Malimali, that she was truthful, and that there was no evidence she was part of a conspiracy, although he found that she had been used.
Waqanika also says that Malimali’s evidence was cut short and she was told to provide an affidavit, which curtailed her rights.
She adds that Malimali suffered the greatest damage to her reputation.
Waqanika also adopted the submissions of Clarke and Vaurasi’s King’s Counsel Martin Daubney and Leung’s King’s Counsel Andrew Tokley.
The judicial review hearing into the Commission of Inquiry continues this weekend.
