HIGH Court judge Justice Dane Tuiqereqere said it was not appropriate for Barbara Malimali to be appointed Commissioner of the Fiji Independent Commission Against Corruption (FICAC) while an active criminal investigation against her was pending.
He made the observation in his ruling on Friday while dealing with judicial review challenges to the Commission of Inquiry (COI) into Malimali’s appointment. While the court ultimately identified significant legal and procedural problems with the COI and quashed its findings, Justice Tuiqereqere said the inquiry itself had served a useful purpose and its report contained valid concerns about the appointment process.
“The work done by FICAC is vital to the economic and social integrity (and wellbeing) of Fiji,” Justice Tuiqereqere said.
“The appointment of the commissioner is critical to its success. For this reason alone, the establishment of the Commission of Inquiry into Ms Malimali’s appointment in October 2024 served a useful purpose.”
Justice Tuiqereqere said the circumstances surrounding the “Tuvalu Issue” were relevant to Malimali’s suitability for the position.
He also highlighted the existence of a live FICAC investigation into Malimali at the time she was appointed.
“These matters were required to be disclosed to JSC,” he said.
“It was not appropriate for Ms Malimali to be appointed commissioner while an active criminal investigation against her was pending.”
However, Justice Tuiqereqere stressed that this did not overcome the serious problems he found with the inquiry itself.
“Nevertheless, I have found that there are several significant problems with the conduct of the Commission of Inquiry, its Report and the release of that Report to the public,” he said.
The judge found the COI was required to complete its work and deliver its report by January 31, 2025, but failed to do so.
The hearings continued beyond that date, with the final report not delivered to the President until May.
Justice Tuiqereqere found the President did not have the power to extend the existing commission to May 16, 2025 and that any alteration required the establishment of a fresh commission. “This was not done and, accordingly, the commission’s work from 1 February 2025, and the COI Report dated 1 May 2025, is ultra vires,” he said.
Justice Tuiqereqere said that finding alone was sufficient to determine the judicial review proceedings in favour of the applicants.
