The President did not have the power to extend the Commission of Inquiry into the appointment of former FICAC Commissioner Barbara Malimali beyond its January 31, 2025 deadline, the High Court has ruled.
Justice Dane Tuiqereqere made the finding in his judgment quashing the COI’s adverse findings and recommendations and declaring its May 1, 2025 report null and void in its entirety. The ruling has also been reported today as finding that the Commission’s work after January 31 was unlawful.
Justice Tuiqereqere said the Commission had been required to complete its work and deliver its report by January 31, 2025.
It failed to meet that deadline, with hearings continuing after January 31 and the completed report not being delivered to the President until May 2025.
“The President purported to extend the commission to 16 May 2025 under section 2 of the Commissions of Inquiry Act,” Justice Tuiqereqere said.
“The President did not, however, have power to do so.”
The judge said any alteration of the Commission under section 3 of the Act required a fresh commission to be established.
“This was not done,” Justice Tuiqereqere said.
As a result, the court found that the Commission’s work from February 1, 2025, as well as its report dated May 1, 2025, was ultra vires — meaning it was undertaken beyond the Commission’s lawful authority.
Justice Tuiqereqere said this finding alone was sufficient for the applicants to succeed in their judicial review proceedings.
“This finding is sufficient to dispose of the judicial reviews in the applicant’s favour,” he said.
The judge nevertheless went on to consider the applicants’ other grounds, including alleged breaches of natural justice and actual or apparent bias.
Justice Tuiqereqere acknowledged that establishing the inquiry in October 2024 had served a useful purpose and said the COI report made some valid points about Malimali’s appointment.
He said FICAC’s work was vital to Fiji’s economic and social integrity and the appointment of its Commissioner was critical to the institution’s success.
The judge also found it was not appropriate for Malimali to have been appointed FICAC Commissioner while an active criminal investigation against her was pending.
However, Justice Tuiqereqere said there were “several significant problems” with the conduct of the inquiry, its report and the release of the report to the public.
The court ultimately quashed the adverse findings and recommendations and declared the COI report null and void in its entirety.
