# “CORRUPT”. THE DEVASTATING PRONOUNCEMENT BY JUSTICE DAVID ASHTON-LEWIS ON BARBARA MALIMALI (UPDATED WITH MEDIA COVERAGE)

Without even seeing the report of the Ashton-Lewis Commission of Inquiry into Barbara Malimali’s appointment as FICAC Commissioner, we now know from his astonishing radio interview what the judge has found – that the sacked head of the corruption watchdog is herself corrupt . And that she was specifically installed by an equally corrupt cabal to shut down investigations into Coalition government ministers that would have proceeded without her intervention.

It is a devastating pronouncement on Barbara Malimali that she can do little about other than to pout indignantly in public and wail in private. Because whatever anyone thinks about the Judge relaying his conclusions in a Queensland radio interview instead of waiting for his Report to be published, those conclusions cannot be challenged.

As Justice Ashton Lewis explains in his interview, a Supreme Court commission of inquiry – the equivalent of a royal commission in Australia and New Zealand – cannot be challenged. There is no prospect of appeal. The Supreme Court is the ultimate court in Fiji and Barbara Malimali and anyone else adversely mentioned has nowhere higher to go.

Nor can Malimali sue David Ashton-Lewis for defamation, as some of her more hot-headed supporters are suggesting. As a Supreme Court judge – a member of the highest court in Fiji – the judge has made his findings and that is that. Barbara Malimali is corrupt and should never have been appointed head of the corruption watchdog in the first place. And the President, Ratu Naiqama Lalabalavu – acting on the judge’s findings – was fully justified in dismissing her once those findings reached him. In fact, he had no choice.

So to follow is an edited transcript of the David Aston-Lewis judgment on Barbara Malimali in his radio interview – presumably replicated in the official COI Report that we are yet to see – that has not only seen her dismissed from FICAC but spells the end of her legal career. Because when a Supreme Court Judge makes a finding like this against any lawyer, the next step – assuming the judicial system functions as it should – will be for her to lose her practicing certificate.

There’s also valuable background to the COI hearing and how the process works. And still to come on Grubsheet in the coming hours, more devastating pronouncements by Justice David Ashton- Lewis on others, notably the Deputy Prime Minister, Manoa Kamikamica. Plus local mainstream media coverage of this developing story.

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“I was asked to sit on a commission that was looking into the appointment of a woman into her office as head of the Fiji Independent Commission against Corruption. That is a body that is established by the Fiji Constitution and it virtually answers to nobody. It’s very powerful and if it finds that things are made out it can destroy a life. So it mainly hears things like abuse of office, corruption, unlawful behaviour such as money laundering, things like that. (Edit)

Now this Commission is highly political and under the previous government, it was weaponised. It was used by the then attorney general and the then prime minister to really destroy enemies. Trumped up charges would be laid and trumped up decisions would be made. Now when Sitiveni Rabuka came back into office two years ago, the pressure on him was to clean up this body – its shortened name is FICAC, Fiji Independent Commission Against Corruption. (Edit)

Well, a woman was appointed to it who was universally seen as corrupt. And she was universally seen as someone who would protect high-ranking people and any complaints made against them would be closed or would be decided quickly not on full evidence and they would be found to have nothing to answer to.

So the pressure on the Prime Minister over the last two years was: Could you please investigate this Commission and this woman. She is unsuitable for the job. She’s unqualified for the job because of her background and no-one trusts her. Well no-one other than those who wanted her to get in.

Now those who wanted her to get in were, still are, senior members of the government who claim to be totally committed to the current regime but five of them had terrible accusations made against them and complaints made to FICAC against them and it’s been noticed that this woman is seemingly delaying them, has closed some, so there’s been a push to form a presidential commission to look into 1/ her appointment, was her appointment carried out with fairness, justice, in accordance with the rule of law and integrity. That was the first term of reference to be investigated. And then the second was: Was there inordinate and improper influence by certain people in the government, in the cabinet, to get her into the position because they were aware that she would protect them. (Edit)

So what happened was, a commission of inquiry is not like a trial. So it has a supreme court judge sitting on it but he has wide powers of investigation, and he can arrest, he can subpoena people to come to court, if they don’t come to court, he can deal with them for contempt but he’s not bound by the strict rules sitting on the Supreme Court. So he has all the powers of a Supreme Court judge but more. And one of the major powers that I had as the Commissioner, I could accept hear-say evidence. Now in a normal court situation, you cannot accept hear-say. I could accept hear-say on hear-say and I regulated the proceedings. So I didn’t have to follow any Supreme Court rules. There are no Commission of Inquiry rules under the Fiji Commission of Inquiry Act because it is always left to the commissioner and the judge to set the rules of procedure.And there’s no appeal of a decision. The only thing that a commissioner of inquiry must observe are the principles of natural justice, that is, any person who is called to appear or any person who is under investigation has a right to be heard, usually by counsel, they can appoint counsel, has a right to cross-examine any evidence that is damaging to them, so those principles of natural justice and that means procedural fairness, that you’ve been procedurally fair.

Now when I went there, there were five witnesses to be heard and what happens is, you start getting affidavits from all the people who are important and the commissioner says “I want to hear you”. (edit) …so we went from five witnesses as we got affidavits, turned out to being 35 witnesses. It was supposed to be completed by the 31st of December, six weeks, it wasn’t completed until the 2nd of May. ..(Edit)

It took nine weeks of hearings in the Supreme Court and then I had a month, or three weeks actually, to write a 681 page report, which I did, and I handed that report to the Prime Minister and the President on the 2nd of May… (Edit)…

So I made 72 recommendations. What a commissioner does in the COI is hear all the evidence, he makes recommendations because it’s not a trial, it is an investigation, and any evidence of a commission of inquiry cannot be used in a later trial, if you bring out and I have brought out criminal acts, it’s up to the Director of Public Prosecutions to get the police to re-investigate those matters and if satisfied, the Director of Public Prosecutions will lay indictments and then there will be a trial.

Now I found there were nine people who had done things such as. Lied under oath. That’s called perjury. I found that nine of them obstructed the course of justice. And that they also perverted the course of justice in the appointment of this particular woman. In other words, it became apparent in the investigation that this particular woman was shunted very quickly through the processes to get in. The question then arises, why? Why was she so important? Well the rest of the evidence shows she was so important because she would do evil people’s designs.

So now what’s happened is the Prime Minister is considering it. I have received word that he is going to act on all my recommendations in relation to nine people and that he will then, there’s a massive pushing for it now by members of the opposition, everyone, that the report be made public because at the moment, only four people, now I’m told it’s been leaked and I’m sure it has and I think I know where it’s been leaked from, so that people who are interested are trying to stop it. But they’re not going to be successful.

And what ostensibly only myself, the Counsel Assisting, the Prime Minister and the President know what’s in the Report, my recommendations has been act on the recommendations first before you release it to the public. And the reason being, we received pretty good intelligence, that’s Counsel Assisting and myself, that those who are named in it are going to seek to bring an injunction to stop it being released.

Now I don’t know how they are going to do it because …(edit)…you can’t injunct the State, you can’t injunct the Head of State, and this is only going to be released on the order of the President and he will act on the advice of the Prime Minister. And so you can’t injunct the President in Fiji, it’s just impossible. So I don’t now what they’re going to try to do. (Edit)

The advice to the Prime Minister is act on the recommendations, then release it. Because you’ve cut the ground from under them. It’s already gone out into the public of those nine, what has happened to them, then release it. Now I understand from his aides, that’s what he intends to do…(Edit)…

The Prime Minister said to me “David, could you please reveal the crocodiles in the pond”. And I did that. So that’s it.”

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(UPDATE) The crocodiles and their supporters are biting back, judging from some of the coverage in today’s domestic media.

This from the Fiji Times:

More on Manoa Kamikamica in our next article. He has been publicly outed, albeit indirectly, by the Judge as one of the nine facing charges.

Barbara Malmali’s lawyer, Tanya Waqanika, is derisive about David Ashton-Lewis making public statements before his findings are formally released.

But Tanya Waqanika is contradicted by the Prime Minister on the front page of today’s Fiji Sun.

Once again, the country’s two dailies take completely opposite tacks of emphasis in their coverage.

And we wonder why the Fijian people are so chronically confused.

And true to form, the usual smart arses are out in force.