The decision by Justice Dane Tuiqereqere to declare the Ashton-Lewis Commission of Inquiry null and void has broken like a thunderclap over Suva this afternoon but it is already clear that it is a serious miscarriage of justice which threatens the reputation of the judiciary and must be appealed.
Think that’s a big call, Fiji? Then let’s go through the facts one by one.
- Justice David Ashton-Lewis is a judge of Fiji’s highest court – the Supreme Court. He was commissioned by the government – with his counsel assisting, Janet Mason – to carry out a Commission of Inquiry into the circumstances of the appointment of Barbara Malimali as Acting FICAC Commissioner.
- Judge Ashton-Lewis made a series of adverse findings against a number of individuals in a report that has never been officially published in Fiji. One of those findings was an accusation of perjury and perverting and obstructing the course of justice against the Chief Justice, Salesi Temo.
- Instead of doing what they should have done and suspended the Chief Justice and put him before a tribunal, the Prime Minister, Sitiveni Rabuka, and the President, Ratu Naiqama Lalabalavu, kept him in place so that despite the shocking findings against him, Justice Temo has had carriage of the fallout from the CoI in the courts.
- Justice Temo handpicked the High Court judge, Justice Tuiqereqere, who heard appeals by some of the others who received adverse mentions. In doing so, Temo chose one of the least experienced of the High Court judges – a man with an background in personal accident compensation cases in New Zealand who is a novice yet has made extraordinary pronouncements about the conduct of a Judge in Fiji’s highest court. By any measure, Tuiqereqere was patently unfit to do so on the grounds of seniority as well as experience. But that doesn’t count for anything these days in Fiji.
- Worse, Justice Tuiqereqere has bungled the case and seems to have had no idea of what a Commission of Inquiry is meant to be. He has railed publicly about Justice Ashton-Lewis not giving Barbara Malimali the opportunity to be present when he questioned other witnesses when there is no legal requirement for him to have done so in the first place. A CoI is an inquisition, not a trial, in which findings are made that the Commission recommends the police investigate before any charges are laid.
- Justice Tuiqereqere appears to be ignorant of how the process is meant to work. At every stage of the CoI proceedings, Barbara Malimali and her counsel, Tanya Waqanika, were informed of the accusations against her. But contrary to Tuiqereqere’s assertions, she didn’t have to be present at every interaction that Justice Ashton-Lewis had with other witnesses. Grubsheet understands that the Judge pointed this out to Tuiqereqere in an affidavit – explicitly saying he didn’t seem to understand the process. Yet Tuiqereqere has continued along his merry way, evidently in complete ignorance of the law.
- Where do we go from here? This judgment is an outrage which must not be allowed to stand. And it is incumbent on the Prime Minister, Sitiveni Rabuka – who spent millions of public money setting up the CoI in the first place – to go to the Court of Appeal to try to have it overturned. He owes it to the public and the integrity of the judiciary to do so, as well as his own reputation, which has taken a massive hit from this judgment.
- Unfortunately for Rabuka, the blame for what has happened entire rests with him and the President. When the adverse finding was made against the Chief Justice, he should have been immediately removed. Instead, he was able to stay in the job despite being accused of the worst crime any head of a judiciary could be accused of – perverting the course of justice. Then he was able to allocate the case against the CoI to a judge of his own choosing. And he chose one of the most junior High Court judges – someone he had elevated to the bench himself who was totally inexperienced and had a background in New Zealand fighting personal accident compensation cases.
- It is simply incredible that the state of the judiciary in Fiji permits a Chief Justice accused by a judge of Fiji’s highest court of perverting the course of justice to be able to pervert the legal process by choosing his own man to pass judgment on the more senior judge. Remember, Tuiqereqere has done this all on his own. It isn’t a panel of judges but one man in a lower court with only a modicum of judicial experience. Less than three years!
They are the facts of this debacle, Fiji. And for the sake of confidence in the rule of law, this judgment must not be allowed to stand.
It is in the national interest that the Prime Minister pursues this matter to an appeal. And it is also not too late for him to do what he should have always done – to insist to the President, Ratu Naiqama Lalabalavu, that he finally suspends Salesi Temo. Because what has happened is an outrage that represents a direct threat to the rule of law in Fiji.
A judge for less than three years. Yep, a novice. Never even a magistrate.
The initial report was “advisory” and in no way shape or form was it ever binding as a court judgement….Like anything the process was cured….much the same as Frank the tank and his band of duds had their whole tenure recognized by the “International community” as being the legitimate gvt of that day , constitution et al….Ethics and moral tones aside it is what it is… and the process never broke a law!
Hi GD, I am thinking the entire investigation was a scam to fool the nation, Rabuka and his team of legal reps commissioned this inquiry to avoid going prison themselves and thus compensating those named in the COI. Someone should bring all these corruption cases and outcomes to Australian Government even if Australia is scared of China moving in, at least they are aware. You may be the right person as you do not live in Fiji and possibly not making a trip to Fiji.
Rabuka hand picks Ashton-Lewis. Semo hand picks Tuiquereqere. More of the same sadly.
Fiji has become a quagmire.
The judge is obvioulsy serving his master, the discredited CJ. The judiciary is well and truly f**cked. Like I have always said, This is their country and they will make the laws as they go to keep their jobs. But surely what is coming will be well deserved when it arrives.
Patience.
William Roper: “So, now you give the Devil the benefit of law!”Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”William Roper: “Yes, I’d cut down every law in England to do that!”Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?”Key Meanings of the MetaphorProtection: The law acts as a sturdy forest that shelters ordinary people from raw, unchecked power and chaos.Safety: More famously states he would give legal protection even to the Devil himself “for my own safety’s sake,” knowing that destroying legal bounds removes safety for everyone.Limits of Morality: More contrasts human law (the land/forest) with God’s higher morality (the open sea), noting that he is a man and must rely on the clear rules of the earth rather than trying to act like God.