In the wake of a recent announcement by Prime Minister Sitiveni Rabuka regarding the suspension and dismissal of two senior legal officials, Fiji Law Society president William Wylie Clarke speaks to The Fiji Times about the legal and ethical dimensions of these high-profile decisions. In this exclusive interview, Mr Clarke questions the constitutionality of the actions taken, calls for due process and transparency, and stresses the need for independent legal advice, institutional integrity, and a renewed commitment to the rule of law. As public concern grows over withheld findings of the Commission of Inquiry and the speed of Government decisions, he offers a clear-eyed legal perspective and a firm message to the legal fraternity and the nation: follow the law, no shortcuts.
FT: From a legal standpoint, do you believe the actions taken by the President — on the advice of the Prime Minister — are consistent with constitutional and legal requirements for suspending a public officer like the FICAC Commissioner?
WC: Unfortunately, I do not believe the actions of the President, or the advice of the PM to the President, are lawful. The responsibility for advising the President on the appointment and discipline of senior FICAC officials belongs to the Judicial Services Commission, not the Prime Minister. Ironically it was the Commission of Inquiry itself which obtained an opinion from a senior New Zealand lawyer in February this year confirming this point.
FT: How important is it that the Commission of Inquiry process, including its recommendations and implementation, respects both due process and the rights of individuals named in the report? Has that threshold been met in this case?
WC: The COI is a legal process that, like a court, makes findings of fact. Unlike a court, however, a COI does not make orders or declarations. It may make recommendations for others to carry out. However, any process of fact-finding can go wrong and can be challenged. A court finding can be challenged by appeal. A COI finding can be challenged by applying to the High Court for judicial review.
Both Ms Malimali and the dismissed Attorney-General appear to have been the subject of critical findings by the COI, which is why action has been taken against them. However, since the COI report has not been released, they have not had the chance to see the findings made against them and, if they disagree, to challenge those findings. That is unfortunate and arguably unfair.
In the case of the A-G, as Mr Leung himself has said, the Prime Minister decides who he wants in his Cabinet and who he does not want, so that is up to him. However, in the case of an independent office-holder under the Constitution such as Ms Malimali, the PM must respect the legal process for her discipline and, with all respect to him, he has not done that.
FT: Given the COI Report is 648 pages with 10 annexures, do you believe a decision and subsequent action within just over two weeks of receiving the report suggests sufficient legal scrutiny?
WC: What has occurred so far suggests that the PM, who is the person making recommendations to the President, has been poorly advised. His Excellency the President should always have his own separate legal advice, including on whether to accept recommendations which are not in line with the Constitution.
FT: The Prime Minister has said he is committed to releasing the COI report in due time, while balancing civil rights and ongoing investigations. As President of the Fiji Law Society, what do you believe is the best course of action for ensuring both transparency and legal propriety?
WC: The best course is as follows:
s first, relevant parts of the COI report should be released to those affected by its findings. This is to allow them to correct any factual errors (and therefore improve the quality of the COI report) and to make representations to the COI about any adverse findings. It is of course up to the COI whether to change its report and if not, the people affected by the findings can challenge them in court
s second, the COI report (corrected if necessary) should be released to the public
s third, the PM should take sound and impartial legal advice on his next steps, including what he has the right to do and what he does not have the right to do.
This process may take some time, but that is what fairness and good governance require.
FT: In your view, does withholding the report from the public for an extended period risk undermining public trust, particularly in light of such swift and significant personnel changes at FICAC?
WC: At the moment things are certainly challenging. First, no one knows what is in the report, so the public cannot judge whether the PM’s actions are appropriate or proportionate. So at this stage, and given what has happened now, it is probably correct that the report should be released, even if the process for receiving it has so far been less than ideal.
FT: What legal precedents or guiding principles should the Government follow in releasing inquiry reports involving potential criminal or disciplinary proceedings?
WC: These are always difficult questions, and they are not always easy to get right. However, fairness to those who are affected by the report should be the first guiding principle, with transparency to all a second principle. Sometimes these processes take time. The public is generally not very patient but fairness is always the first principle that must be respected, even when there is political pressure.
FT: How do these developments impact the perceived independence and integrity of institutions like FICAC and the judiciary? What safeguards should be put in place moving forward?
WC: Time will tell. The next set of events and actions by the Government will be important in deciding those questions.
FT: There are concerns that such inquiries and their consequences can be politicised. What can be done to ensure that the public maintains confidence that legal institutions are functioning independently and free of political interference?
WC: This too is a complicated question. However, the first principle is that those in power must follow the law — no shortcuts. Concepts such as the separation of powers and the necessary checks and balances are critical to ensuring that those in power are restrained from making bad decisions. Fiji struggled for many years under a government that paid little heed to rule of law and instead just did it wanted to. We cannot go back to those days.
FT: What role, if any, should the Fiji Law Society play in observing or reviewing the legality of such proceedings and advising the public or the Government on best practices?
WC: As lawyers, we advise our clients — but we can only advise and hope that good legal advice is accepted and respected. The same is true of the Fiji Law Society. We try always to be balanced and unbiased in our approach to rule of law issues but in a strongly contested political environment it is sometimes difficult to be seen as objective.
FT: What is your message to the legal fraternity and the public as Fiji navigates this moment of institutional accountability and legal reform?
WC: That as lawyers we have a role beyond just representing people who are our clients and who want to advance their own positions. We must also have a role in publicly advocating for the rules to be followed and for rule of law to be protected.
