In a landmark ruling, the High Court has declared the Commission of Inquiry (COI) report into the appointment of Barbara Malimali as FICAC Commissioner as unlawful and null and void. This decision, handed down by Justice Dane Tuiqereqere, has far-reaching implications for the integrity of public inquiries and the principles of natural justice in Fiji. The case, brought by Malimali, former Attorney General Graham Leung, and lawyers Wylie Clarke and Laurel Vaurasi, highlights the critical importance of procedural fairness and transparency in the investigative process.
The judge's ruling is a comprehensive critique of the COI's conduct and findings. He found that the COI's extension beyond its original deadline was ineffective, rendering its subsequent actions and report unlawful. The adverse findings against the applicants, including Malimali, Leung, Clarke, and Vaurasi, were deemed irrational and outside the COI's terms of reference. The judge also emphasized that the applicants were denied the opportunity to respond to these findings, a fundamental breach of natural justice.
One of the most striking aspects of the ruling is the judge's criticism of the COI's chair, David Ashton-Lewis. He was accused of failing to provide the applicants with a draft of the adverse findings and an opportunity to respond, a procedural error that undermined the fairness of the inquiry. The judge also found that the tirade against Clarke in the COI report was baseless and had no place in a report of this nature.
The judge acknowledged that the COI report made some valid points about the appointment process and the circumstances surrounding Malimali's suitability for the position. However, he emphasized that these matters should have been disclosed to the Judicial Services Commission and that Malimali's appointment while an active criminal investigation was pending was inappropriate.
This case raises important questions about the independence and impartiality of public inquiries. The judge's ruling suggests that the COI's actions were influenced by bias and that the principles of natural justice were not upheld. It also highlights the need for greater transparency and accountability in the investigative process.
From my perspective, this case serves as a stark reminder of the importance of procedural fairness and the rule of law. It is a call for greater scrutiny and oversight of public inquiries to ensure that they are conducted with integrity and respect for the rights of all parties involved. The judge's ruling is a significant victory for the applicants and a blow to the credibility of the COI. It also raises important questions about the future of public inquiries in Fiji and the need for reform to ensure that they are fair, transparent, and accountable.
