The High Court has found the Commission of Inquiry report lacked “balance and measuredness”, with Justice Dane Tuiqereqere questioning conclusions of political and undue influence that he said were made without probative or compelling evidence.
In his judgment quashing the COI findings, Justice Tuiqereqere said his reading of the entire 473-page report revealed significant concerns about the approach taken by Commissioner Justice David Ashton-Lewis.
“A reading of the entire 473-page COI Report reveals an absence of balance and measuredness,” Justice Tuiqereqere said.
The judge said the Commissioner sometimes used “immoderate language” when he perceived threats to the existence of the inquiry.
He also expressed concern about the frequency with which conduct was considered potentially criminal.
“There is an unhealthy number of occasions where the Commissioner considers conduct to amount to potential criminal offending,” Justice Tuiqereqere said.
The judge specifically referred to the Fiji Law Society’s objection to Janet Mason’s appointment as Counsel Assisting the inquiry.
“Such a view is absurd,” he said of treating that objection as potential criminal offending.
Justice Tuiqereqere also highlighted the COI’s conclusions concerning alleged undue and political influence in Barbara Malimali’s appointment as FICAC Commissioner.
“The Commissioner made findings of undue and political influence in the appointment of Ms Malimali without identifying any probative evidence to support such a serious finding,” he said.
Justice Tuiqereqere separately said the Commissioner “failed to identify any compelling evidence” supporting the conclusion that there had been political interference in Malimali’s appointment.
The judgment also raised concerns about the COI’s treatment of Fiji Law Society President Wylie Clarke and its handling of an alleged conflict of interest involving former Acting Deputy FICAC Commissioner Francis Puleiwai and FICAC.
Justice Tuiqereqere said a fair-minded and fully informed observer would question the Commissioner’s objectivity and impartiality regarding Clarke.
The judge also found it difficult to understand why the COI did not address the alleged conflict of interest involving Puleiwai and FICAC in the Malimali investigation after August 30, 2024, despite the issue being raised by several witnesses.
Justice Tuiqereqere said the failure to discuss this issue was problematic and at odds with parts of the Commissioner’s narrative.
The findings form part of the High Court’s broader conclusion that the conduct of the Commission gave rise to a reasonable apprehension of bias.
