JUSTICE David Ashton-Lewis of the Commission of Inquiry (COI) made highly derogatory and toxic statements about former FICAC commissioner Barbara Malimali, describing her as “universally corrupt”, “unqualified”, and someone who would “protect high-ranking people”.
Ms Malimali’s lawyer Tanya Waqanika said these remarks went far beyond the scope of the inquiry and caused serious reputational harm to Ms Malimali, who is now unemployed.
Ms Waqanika made the comments during the hearing for leave to seek judicial review to challenge the report involving Fiji Law Society president William Wylie Clarke, the society’s immediate past president Laurel Vaurasi, and former attorney-general Graham Leung.
She argued that the process of the COI was fundamentally flawed, claiming that she and her client were prohibited from sitting in during key testimonies in these proceedings, which she said felt more like a “trial”.
She further submitted that the inquiry had become a political tool used to malign individuals who had no involvement in politics, and that Ms Malimali was not given any opportunity to respond to the findings before they were made public.
Ms Waqanika is relying in part on a 1993 judicial review filed by then Prime Minister Sitiveni Rabuka, in which the former chief justice ruled that Mr Rabuka had not been given the right to respond.
Meanwhile, senior lawyer Richard Naidu, acting for Mr Clarke and Ms Vaurasi, argued that the commission’s terms of reference did not permit the COI to examine events that occurred after Ms Malimali’s appointment.
He submitted that an inquiry into an appointment cannot extend to post-appointment circumstances.
He said various findings against his clients concerned an incident that took place the day after the appointment, when the former deputy commissioner purported to arrest Ms Malimali, where his clients attempted to assist.
According to Mr Naidu, it could not be said that their actions in response to an intervening event were related to Ms Malimali’s appointment. It must, therefore follow, he argued, that Justice Ashton-Lewis exceeded his terms of reference, making all findings relating to post-appointment events unlawful.
Lawyer Seforan Fatiaki, representing Mr Leung, submitted that his client lost his job because of the COI’s findings and recommendations, causing significant damage to his reputation.
The applicants maintain that their respective cases are neither frivolous nor vexatious, and that each has an arguable case.
In response, counsel for the respondents from the Attorney-General’s Office argued that the court cannot quash the COI’s findings but may only declare the decisions unlawful, as the report is advisory in nature.
Justice Dane Tuiqereqere, who is presiding over the matter, rejected senior lawyer Hemendra Nagin’s application to have his client, Justice Ashton-Lewis, added as a party to the proceedings.
A ruling will be delivered on January 23.
Lawyer Tanya Waqanika at the High Court in Suva yesterday. Picture : ANDREW NAIDU
