THE duty fell on the Prime Minister (Sitiveni Rabuka) and the President (Ratu Naiqama
Lalabalavu) to give those facing adverse findings in the Commission of Inquiry report an opportunity to respond before acting on the findings or releasing the report publicly, High Court judge Justice Dane Tuiqereqere said in his ruling on Friday.
He made the finding in his ruling on the judicial review challenges concerning the COI into the appointment of former FICAC Commissioner Barbara Malimali.
The judge found that none of the applicants, namely Barbara Malimali, Graham Leung, Wylie Clarke and Laurel Vaurasi could have reasonably known when the COI hearings ended on March 3, 2025 that they faced the risk of the adverse findings ultimately made against them.
Justice Tuiqereqere said the commissioner should have at least provided the applicants with notice of the draft adverse findings and given them an opportunity to respond before completing his report.
“The applicants ought to have been given notice of the draft adverse findings by the Commissioner, along with an opportunity to respond before the commissioner completed his report. He did not do so,” he said.
Justice Tuiqereqere said because that opportunity had not been provided by the commissioner, responsibility then shifted to the country’s two senior office holders before action was taken on the report.
“In the absence of this, the duty fell on the Prime Minister and the President to afford the applicants such notice before acting on the adverse findings and, most certainly, before releasing the report to the public,” he said.
The judge also found there was “more than ample evidence” to establish apparent bias by the commissioner.
He said the commissioner’s statements during the hearings and after completing the report, together with the contents of the report, could cause a fair-minded and fully informed observer to question whether the inquiry had been undertaken with an open and impartial mind.
Justice Tuiqereqere also found there had been a failure to provide natural justice to the applicants, with Malimali the most unfairly affected.
“Ms Malimali was most unfairly impacted by this.
“She ought to have had proper notice of the allegations she faced and a much greater level of participation than was afforded to her.”
