The counsel for Prime Minister Sitiveni Rabuka, Simione Valenitabua says the Commission of Inquiry report into the appointment of Barbara Malimali as FICAC Commissioner can be made null and void if there is no evidence that an extension was granted to the COI between 7th March to 12th May, 2025.
While making submissions in his strike out application during the judicial review hearing filed by Malimali, former Attorney-General Graham Leung, and lawyers Wylie Clarke and Laurel Vaurasi, Valenitabua says it would be unreasonable to conclude that the President extended the COI sitting date without the gap being filled.
He says, however, if there is a gap, it is open for the court to declare the COI report null and void.
He says the judicial review should be struck out as Section 11 of the COI Act prevents anyone from filing a case based on the evidence during the hearing, except on the issue of perjury.
Valenitabua further says Malimali also benefits from this law as she has been exonerated because of Section 11 and to now say that it should ignored is an abuse of process.
He further says the Prime Minister has no duty of care towards the applicants and also argues that the COI is no longer in existence and cannot reconvene so that changes to the COI report can be made.
The counsel also says that the COI report has no legal effect as they are only recommendations.
When questioned by High Court Judge Justice Dane Tuiqereqere about the language used by Justice David Ashton-Lewis, Valenitabua says the Prime Minister believes that with respect to his position, the language used by Justice Ashton-Lewis was unforeseen and unexpected because he is a Supreme Court judge who has been practicing in Fiji for a long time.
Valenitabua also says that Malimali has been accorded natural justice as she was present during the hearing and was able to cross examine witnesses.
He also says Justice Ashton-Lewis exercised his power under the COI Act to exclude Malimali and her counsel during parts of the hearing.
He says that the COI was not a trial but was for fact finding and there is no need to give anyone prior notice about adverse findings against them.
The counsel also stresses that the COI has no legal effect and disclosures were done for the purpose of good governance, welfare of the people as taxpayers funds was used.
He adds that Justice Tuiqereqere will be contradicting himself due to his previous ruling relating to the COI if he finds the COI report invalid.
Justice Ashton-Lewis’ counsel Hemendra Nagin has asked for 14 days to find the gazette and evidence of the extension of the hearing as Justice Ashton-Lewis is unwell and has been going in and out of the hospital while the counsel assisting the COI, Janet Mason is in Japan.
He says even if there is a gap, this does not make the report null and void as the President had extended the time.
While responding to the submissions of the applicants, Nagin also says their rights were not affected so the judicial review is out of the picture.
He says Section 11 grants Justice Ashton-Lewis immunity from any legal action, and that the Office of the Director of Public Prosecutions cannot lay any charges, as Malimali has been exonerated under the same provision.
Nagin says natural justice was followed, as witnesses were heard, and it is common for judges to later assess their credibility without recalling them to respond.
He says in court cases, when a witness is done with giving evidence, the judge decides to believe them or not and he does not call them back to say that they do not believe them.
When questioned by Justice Tuiqereqere if witnesses should be called again after allegations have been made against them, Nagin insisted that they shouldn’t.
Justice Tuiqereqere then said that 5 witnesses were re-called during the hearing and both he and Nagin know that witnesses are re-called for a judge to get a full picture before making adverse findings.
Nagin responded that Justice Ashton-Lewis is a master of his own procedures.
The counsel says all Justice Ashton-Lewis said in the radio interview two weeks after giving the report was that the recommendations should be implemented.
When questioned about the language used by Justice Ashley-Lewis in the report, Nagin agreed that it can be harsh but they are irrelevant to the issue as the COI is of an advisory nature and does not affect anyone’s right.
While responding, the counsel for Clarke and Vaurasi, Dr Patrick Keyzer says Justice Ashton-Lewis’ comments about attempts to shut the Commission at the beginning and throughout the report demonstrates a lack of impartiality.
Leung’s counsel Oliver Morris also says the defacto doctrine, which validates an official's actions despite the absence of proper legal appointment not knowing that it was illegal, is invalid as Justice Ashton-Lewis had highlighted during the hearing when the COI report is due and indicated that he would be seeking an extension.
Malimali's counsel Tanya Waqanika submitted that vindicatory damages are an additional award that may be granted to reflect a sense of public outrage, emphasise the importance of a constitutional right and the gravity of the breach, and deter future breaches.
She says there is public outrage as they have heard that over $4 million has been spent on the Commission of Inquiry, $9.5 million has been allocated to the Attorney-General’s Chambers, and taxpayer-funded payments have been made to Janet Mason.
Waqanika submits that the breaches by the State, the Prime Minister and Justice Ashton-Lewis are so grave that a message must be sent out.
Nagin and the Attorney General's Chamber has been given until next Friday to provide the evidence for the extension for the COI from 7th March to 12th May, 2025.
Justice Dane Tuiqereqere will deliver his ruling on the 3rd of August.
