THERE was no need to warn anyone affected by the Commission of Inquiry report about adverse findings against them before the report was issued or published, lawyer Simione Valenitabua told the High Court yesterday.
Mr Valenitabua acts for Prime Minister Sitiveni Rabuka, who authorised publication of the report after it was presented to the President in May last year.
Justice Dane Tuiqereqere held an all-weekend sitting of the court to complete the hearing of three judicial review applications against the report of Supreme Court judge David Ashton-Lewis, who conducted the COI into the appointment of Fiji Independent Commissioner Against Corruption Commissioner Barbara Malimali early last year.
The applicants include Ms Malimali, who was sacked after the report was delivered to the President, and then attorney-general Graham Leung, who was sacked by the PM as a result of the report.
Also suing the State are lawyers Wylie Clarke, the president of the Fiji Law Society, and his predecessor, Laurel Vaurasi, both of whom were criticised in the report.
Mr Valenitabua argued that the risks to those under scrutiny were already contained in the terms of reference and that the four applicants were aware of the issues under investigation.
He was responding to the applicants’ claim that they were not given an opportunity to respond to adverse findings before the report was furnished to the President, thereby denying them natural justice.
Mr Valenitabua maintained that a COI was a fact-finding and investigative process rather than a trial.
Lawyer Hemendra Nagin, appearing for Justice Ashton-Lewis, similarly argued that the COI report carried no legal effect, making judicial review inappropriate. He relied on section 11 of the Commissions of Inquiry Act 1946, which prohibits the use of evidence obtained in the inquiry in civil or criminal proceedings, except in cases of perjury.
He also submitted that Justice Ashton-Lewis was protected by statutory immunity from legal action for acts done in that capacity.
On natural justice, Mr Nagin argued that all relevant witnesses, including the applicants, had been called, had given evidence, and were subject to cross-examination, which he said satisfied ordinary standards of fairness. He further submitted that a decision-maker was entitled to assess credibility and made findings without recalling witnesses.
However, Justice Dane Tuiqereqere challenged Mr Nagin’s submission, observing that where new allegations arise after a witness has testified, fairness may require that such matters be put to the witness before adverse findings are made. In response, Mr Nagin maintained that the COI, which was legally permitted to regulate its own procedure, was entitled to admit and consider evidence and make findings accordingly.
Addressing allegations of bias, Mr Nagin argued that it must be established by conduct before the relevant decision, and that statements made afterwards, such as in interviews or transcripts, do not meet the required legal threshold.
Professor Patrick Keyzer, appearing for Mr Clarke and Ms Vaurasi, submitted that Justice Ashton-Lewis used inflammatory and inappropriate language, including describing lawyers as “malicious” and “vultures.”
He argued that such remarks were deliberate and demonstrated a predisposition against some of the people against whom he had made findings. He noted that even the deputy Solicitor-General had conceded in court on Saturday that the language was “totally out of line,” underscoring its seriousness.
Prof Keyzer said repeated suggestions that some people were trying to “shut the commission down” reflected prejudgment and a lack of impartiality. Noting that there had been legal challenges to aspects of the COI, he submitted that the commissioner appeared to take these personally, undermining the requirement for an open and impartial mind. He also argued that Justice Ashton-Lewis’s findings of bullying, coercion, intimidation, and conspiracy were unsupported by evidence and were therefore irrational.
Lawyer Oliver Morris, for Mr Leung, submitted that his client’s claim was not against the PM, but the State on behalf of the Commission of Inquiry. He argued that Mr Leung’s dismissal was a foreseeable consequence of an unlawful report. He argued that the resulting loss was recoverable as damage flowing from the commissioner’s conduct, for which the State bore responsibility.
Lawyer Tanya Waqanika, representing Ms Malimali, argued that while a COI may be described as advisory in this case, the report had real legal and practical consequences, including loss of office and reputational harm.
The applicants collectively maintained that bias was raised during the inquiry, the extension of the commission was invalid, and the report had significant consequences, making this an exceptional case justifying the orders sought from the court.
Justice Tuiqereqere advised the parties he would deliver his ruling on August 3.
