# JUSTICE MUST NOT ONLY BE DONE BUT SEEN TO BE DONE*. AND THAT ISN’T HAPPENING IN SITIVENI RABUKA’S FIJI

The announcement by the corrupt and conflicted Acting DPP, Nancy Tikoisuva, that not one of the 12 police investigations arising from the Ashton-Lewis Commission of Inquiry into the Barbara Malimali affair is to result in prosecutions is shocking enough in itself.

Yet it was accompanied on the same day by the Solicitor General, Ropate Green Lomavatu, telling the High Court judge, Justice Dane Tuiqereqere, that a settlement has been reached between the State and the Judicial Services Commission on the COI but that it must be kept secret. I beg your pardon. Why?

Both these developments tells us that there is no transparency whatsoever in the criminal justice system in Fiji. A Supreme Court Commission of Inquiry convened by the Prime Minister, Sitiveni Rabuka, to “identify the crocodiles in the pond” was paid for by Fijian taxpayers to the tune of up to $4-million dollars.

Millions more have been spent on legal fees and billed to the taxpayer since the CoI reported. But the Report is not only to be effectively shelved. (The Fijian people still haven’t been able to read Justice David Ashton-Lewis‘s complete findings). The Rabuka government is to deprive us of vital information that is the right of anyone to access in a genuine, properly-functioning, participatory democracy.

• We are not allowed to know precisely who was investigated by the police and on what basis those individuals have been cleared by the Acting DPP.
• We are not allowed to know the terms of an extraordinary settlement agreement between the state and the JSC about the CoI findings made against the Chief Justice, Salesi Temo, and the drink-driving Solicitor General, Tomasi Bainivalu, of obstructing and perverting the course of justice.

Having won power in December 2022 by one vote on the floor of the parliament promising a new era of transparency, the Coalition is treating the Fijian people like mushrooms – to coin an Australian saying – keeping them in the dark and feeding them bullsh*t. Yet still expecting taxpayers to fund their little power plays that are a direct assault on the principle of the public’s right to know.

Worse, there is ample evidence that the criminal justice system under Sitiveni Rabuka has been corrupted. Rabuka continues to refuse to advise the President, Ratu Naiqama Lalabalavu, to suspend the Chief Justice, his relative by marriage, and put him before a tribunal of three judges, as the Constitution stipulates, after Justice Ashton-Lewis accused Temo of perjury and obstructing and perverting the course of justice.

This was a supreme court judge from the highest court in the land finding the man at the apex of the judiciary liable of the gravest criminal conduct. Yet Salesi Temo remains as Chief Justice – manipulating the scales of justice as he chooses who will hear certain cases and appointing the Acting DPP, Nancy Tikoisuva, to decide which cases will be prosecuted.

Incredibly, it now also appears that Temo is going to be compensated by the state for simply being accused of wrongdoing. And when there is hard evidence in the form of a digital recording that Temo instructed the Chief Registrar, Tomasi Bainivalu, to tell the former FICAC deputy commissioner, Francis Puleiwai – on the day she was to charge Biman Prasad – that no case she brought would be heard by any court in Fiji.

Worse, if Justice Tuiqereqere goes along with the application from the Solicitor-General, Ropate Green Lomavatu, we will never know the terms of that settlement. Yes, Salesi Temo stays on as Chief Justice despite the gravity of the accusation against him and we pay him for any hurt it has caused him. As Brigadier-General Manoa Gadai exclaimed about the drugs crisis: Kemudou!

It is a national scandal that must not be allowed to stand. And as soon as there is a change of government, the Fijian people must demand an accounting for what has happened and criminal proceedings against all those involved. Because we appear to now have a conga line of people in the criminal justice system and in politics who face prima facie cases of obstructing and perverting the course of justice. This includes the Prime Minister for refusing to advise the President to suspend the Chief Justice when it is his constitutional duty to do so. And the President if it is true that he has been protecting Salesi Temo, his old friend and relative by marriage.

Let’s start with the announcement by the ODPP that not one of the 12 files the police sent it of their investigations arising out of the COI meets the traditional benchmark for a prosecution to proceed – the likelihood of securing a conviction in court and whether any prosecution is in the public interest.

Nancy Tikoisuva – the Acting DPP in the absence of Christopher Pryde, the substantive holder of the position – makes much in her announcement of having obtained the advice of Ian Lloyd KC – a senior barrister practicing in New South Wales and Hong Kong who once defended Sitiveni Rabuka.

Grubsheet doesn’t question the expertise or integrity of Ian Lloyd, who enjoys an impeccable reputation as a senior counsel. But the question is: Precisely what evidence was provided to Lloyd which enabled him to concur with Nancy Tikoisuva that none of the 12 police files would stand up in court?

• Does Ian Lloyd provide a disclaimer that his advice is only on what has been submitted to him?
• Did he at any stage advise the ODPP to go back to the police asking them to gather more evidence? The fact that the Police Commissioner sought a meeting with Nancy Tikoisuva six weeks into the process to ask about the delay in dealing with the police cases suggests that this didn’t happen.
• What exactly was provided to Ian Lloyd – the entire 12 police files and their detailed contents or the summaries that are customarily compiled in the ODPP?

This is relevant not only to whether Ian Lloyd got to see everything the police submitted but the cost of employing him. A Kings Counsel or Senior Counsel from the Sydney bar can charge well over $F30,000 a day .How much did Ian Lloyd charge the Fijian taxpayer for his advice? And why has the State been willing to hire a Kings Counsel from overseas to provide an opinion to Nancy Tikoisuva but has refused repeated requests to hire a Kings Counsel to defend the COI?

Grubsheet calls on the formal Opposition – the newly-registered People First MPs led by Inia Seruiratu – to demand that Ian Lloyd’s advice to the ODPP be provided in full in the interests of genuine transparency. And that the cost of obtaining that advice also be disclosed to the taxpayer.

More importantly, the Fijian people deserve to know the precise identities of those who were investigated by the police arising from the COI. The adverse findings made by Justice Ashton-Lewis were redacted from the version of the actual report released to the public but have been readily available from a variety of sources, including Grubsheet. Yet now that the police investigations are complete and cannot be prejudiced because the ODPP has decided not to prosecute a single one, there is no reason for the identities of those investigated to still be concealed.

Grubsheet has already reported that they included Barbara Malimali herself, the President of the Fiji Law Society, Wylie Clarke, and the Chief Registrar, Tomasi Bainivalu. But who are the others? And crucially, did they include the Chief Justice? Because if they do and Nancy Tikoisuva has decided not to prosecute her patron – the man who appointed her – she is demonstrably compromised.

As it happens, Grubsheet understands that Salesi Temo wasn’t investigated by the police. If so, why not? How can a Chief Justice accused by a Supreme Court judge of perjury and obstructing and perverting the course of justice escape being investigated by the police?

What was the reason Salesi Temo was let off the hook in the first place? On what basis did the Police Commissioner, Rusiate Tudravu, decide not to investigate him? Tudravu needs to explain himself. Because all this goes to the heart of the credibility and integrity of the criminal justice system and as things stand, the veil of secrecy over this entire affair cannot possibly be judged to be in the public interest.

We must know the truth – be given a detailed explanation of what has happened – or the law, to coin another famous saying, is an ass. Justice must not only be done but be seen to be done*. And for the State to argue that the terms of a settlement with the JSC (Temo and Bainivalu) in relation to the COI be kept confidential is an outrage. The gravity of the allegations against them go to the heart of the integrity of not only the judiciary but the State as a whole. And for such an arrangement – paid for by the taxpayer – to be kept secret is scandalous and simply unacceptable.

Yet any notion that this is the end of the matter – that the CoI findings are dead and buried – is merely wishful thinking on the part of those desperate to shut it down because that isn’t the case at all. Grubsheet understands that a string of investigations into those named adversely in the CoI Report are continuing at FICAC under its Acting Commissioner, Lavi Rokoika.

This is in addition to the FICAC prosecutions of deputy prime ministers Manoa Kamikamica and Biman Prasad, which have rocked the government to its core, and are widely suspected to have been encouraged, even engineered, by the Prime Minister to shore up his own position – to remove a rival for the PAP leadership in the case of Kamikamica and cripple any chance of Prasad’s NFP making the threshold at the coming election.

Rumours abound that the current FICAC investigations yet to produce charges include the likes of Lynda Tabuya and Filimoni Vosarogo – both currently riding high. And yes, wait for it… the conduct of the Chief Justice himself.

So Salesi Temo may be breathing a sigh of relief that he has escaped the clutches of the police and is poised to get a payday from the State. But FICAC is evidently bearing down on him over the events at its own headquarters on September 5, 2024, when a digital recording made by former investigator Kuliniasi Saumi has Tomasi Bainivalu conveying a message from the CJ to then acting deputy commissioner, Francis Puleiwai, that no court in Fiji will hear any charge she lays.

Is it any wonder that Salesi Temo has been so desperate to remove Lavi Rokoika as Acting FICAC Commissioner? To the extent of advertising the substantive job without consulting other members of the JSC and being forced into a humiliating back-down? Qori. The sword of justice is said to be bearing down on the Chief Justice in a manner that he can’t control. Because while he can tell Nancy Tikoisuva what to do because he appointed her, he can’t tell Lavi Rokoika what to do because she was appointed by the Prime Minister when Rabuka specifically said the JSC was dragging its feet.

So Lavi Rokoika is said to be still pursuing the crocodiles Sitiveni Rabuka asked Justice Ashton-Lewis to identify and remove from the pond. And under the supreme law, the Constitution, Rokoika has the power to pick up where Nancy Tikoisuva has left off. (see below)

Where this will all end is impossible to predict.

• Will FICAC charge Salesi Temo with corruption and put him before the courts even if the Prime Minister, in deference to the President, is refusing to suspend him and put before a tribunal of three judges?
• Is Rabuka merely waiting for the Chief Justice to deliver his verdict on Aiyaz Sayed-Khaiyum and Mohammed Saneem next month (February 2) before doing his constitutional duty and suspending him? The case against the pair concluded at the beginning of November and keeping them waiting three months for a judgment is a separate scandal all in itself. It suggests that Salesi Temo may have been sitting on it knowing the Prime Minister wouldn’t act against him while Khaiyum’s fate, in particular, continued to hang in the balance.
• Or does the settlement between the State and the JSC point to a stitch-up – a charade involving the PM, President and CJ to keep the whole lot of them in their jobs until the entire pack of cards eventually collapses with the election of a new government?

We simply don’t know. As the old saying goes, it isn’t over until the fat lady sings. And with apologies to Lavi Rokoika (who isn’t fat) we await her next move with more than usual interest. Assuming she survives and Salesi Temo doesn’t succeed with a fresh attempt to cut her legs off. And horror of horrors, Barbara Malimali gets her old job back, which evidently is still a possibility.

It was precisely to deal with the institutional corruption that has now taken root in Fiji that FICAC was instituted in the first place and it now undoubtedly faces its biggest test. At stake is whether the rule of law is upheld when it has never been more under threat. Or whether we continue down the Zimbabwe road into the heart of darkness – where compliance with the law is optional; favours can be traded or bought; where who you know is the sole path to success in Fiji; where the elite enrich themselves at the expense of the poor, the strong at the expense of the weak; where evil triumphs over good.

The choice is that stark in the moral vacuum that now passes for national life. But don’t feel powerless, Dear Reader. At least you’ve still got your vote. So kindly use it to punish the bastards for their betrayal come election day and choose men and women of genuine integrity to put our beloved nation back on course.

* “Justice must not only be done, but must also be seen to be done”. A dictum laid down by Lord Hewart, the then Lord Chief Justice of England, in a judgment in 1924. For more than a century, it has been embraced as a precept in judicial systems throughout the world. But not in modern-day Fiji.

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Who is Ian Lloyd KC? The man who has signed off on the ODPP’s decision not to prosecute any of the police cases arising from the CoI.

Finally, what Section 115 of the Constitution says about the powers of FICAC and why nothing the ODPP does has any bearing on what might happen of and when the corruption watchdog decides to act.

FICAC can, in fact, revisit any case that the ODPP declines to proceed on.