Individuals named in the Commission of Inquiry (COI) into the appointment of Barbara Malimali to the Fiji Independent Commission Against Corruption (FICAC) are pursuing civil court proceedings aimed at restoring their reputations, following the Office of the Director of Public Prosecutions’ (ODPP) decision to dismiss all 12 related police investigations.
Prominent Suva lawyer Richard Naidu said the ongoing judicial review proceedings seek court declarations that adverse findings made by the COI should not have been made, on the basis that they were unfair or unreasonable.
“I should disclose that I was the lawyer who represented before the COI for two clients,” Mr Naidu said.
“I have alternative in some people who are not challenging the COI for two clients.”
The COI report criticised the actions and decisions of a number of people in connection with Ms Malimali’s appointment and suggested that some may have committed criminal offences. It recommended that those individuals be investigated by police, prompting the launch of multiple investigations.
Mr Naidu explained that police subsequently sought legal advice from the ODPP, which has constitutional authority over police prosecutions and provides legal guidance when requested.
After reviewing the evidence, the ODPP advised that the criminal prosecution thresholds had not been met.
“I think the ODPP was wise to seek the advice of respected Australian Kings Counsel, M Ian Lloyd to give independent advice to the ODPP on those matters.”
However, Mr Naidu emphasised that the conclusion of the criminal investigation process does not bring all legal matters arising from the COI to an end.
The judicial review proceedings remain before the courts and are civil in nature. They focus on whether the COI’s findings were lawfully and fairly made, rather than on criminal liability.
“Every Commission of Inquiry is different and that the current situation does not set a broader legal precedent.”
While Commissions of Inquiry are uncommon in Fiji, he said they can play a useful role in examining controversial events, informing the public, and identifying lessons to prevent similar issues in the future.
He added that the controversy surrounding the FICAC-related COI stems largely from how this particular inquiry unfolded, rather than from the concept of Commissions of Inquiry itself.
“Whether a COI was necessary in the case of Ms Malimali’s appointment is a matter for people to argue about.
“However, it is probably fair to say that this particular COI, rather than resolve a controversial event, seems to have become its own controversial event.”
