The High Court judge, Justice Dane Tuiqereqere, will start hearing the applications for judicial review of the Supreme Court Commission of Inquiry into the Malimali affair in just under two month’s time – on December 12.
The Judge has evidently consolidated all applications into a single hearing – that of Barbara Malimali herself, the Judicial Services Commission (Salesi Temo and Tomasi Bainivalu) and the application by Wiley Clarke, the President of the Fiji Law Society, and Graham Leung , the sacked attorney general.
Get set for a clash of the legal titans and some hefty fees. Both Wiley Clarke and Graham Leung say they will be represented by legal counsel from overseas – presumably kings counsel or senior counsel also presumably representing them pro bono or free of charge.
The immediate consequence of that is that the CoI Commissioner – Justice David Ashton- Lewis – and his former counsel assisting, Janet Mason, will be pressing the government for equal representation from overseas, which is likely to run into the hundreds of thousands when some overseas counsel charge $30,000 a day or more.
It is inconceivable that we would see an unequal contest in the court between overseas counsel representing Wylie Clarke and Graham Leung and local counsel representing the CoI. But lots of things that we had previously thought inconceivable have come to fruition so let’s see what happens.
The first thing Justice Tuiqereqere is going to have to decide is whether he has jurisdiction to grant an application for judicial review of a Supreme Court Commission of Inquiry in the first place. These haven’t been decisions in a court of law which can be appealed in the normal manner but recommendations from a CoI for further investigation, which is an altogether different thing.
We can be sure that counsel for the CoI will be arguing that a High Court judge like Justice Tuiqereqere doesn’t have the power to overturn the findings of a CoI Inquiry by a Supreme Court Judge in the form of Justice Ashton-Lewis because the Supreme Court is Fiji’s highest court.
So there is a lot of legal argy-bargy to come and if the arguments on whether Justice Tuiqereqere can grant leave to appeal don’t begin until December 12, this is going to be a long and tortuous process that goes well into the New Year. Election Year.
One of the biggest questions that is yet to be answered is what happens to media coverage of the court hearing. It stands to reason that a great deal of the detail of the CoI Report that remains redacted while police and FICAC investigations continue will need to be aired in the leave to appeal application. Will this hearing be closed in the same manner that the CoI itself was closed?
Lots of questions and as yet, no firm answers.
Justice – now that is an injustice.
The monies spent on this very growing circus could be put to better use propping up the beyond euthanizing health system.
Let’s not be surprised when the decision is made by the Court. We all know how this will end especially since Temo is implicated.
The COI parties have not been served. PM has not issued any instruction at all.