The revelation that the Rabuka government has turned down an offer from the Luxon government in New Zealand to provide it with a Kings Counsel to argue its case against Barbara Malimali in the High Court tells us that a stitch-up is in the offing and Malimali is to be paid to keep her mouth shut.
The Coalition has been in settlement negotiations with Malimali’s lawyer, Tanya Waqanika, and appears desperate to avoid having to appear before a Judge over her claim for a judicial review of the decision to sack her as FICAC Commissioner and her demand for $2-million in compensation to avoid a hearing.
The Prime Minister, Sitiveni Rabuka, was on the front page of yesterday’s Fiji Sun saying that he was waiting to be briefed by the Attorney General’s Office on the settlement negotiations.
He had better watch his step. Because he, and they, have already received the following legal opinion that the government must hold the line on paying Barbara Malimali anything at all.
————–
Ms. Malimali has filed a judicial review application seeking (i) a declaration of unlawful removal, (ii) reinstatement, and (iii) financial compensation.
2. Legal position: Government Authority to Refuse Legal Compensation.
While the government has legal discretion to settle civil claims, such discretion must be exercised rationally, in the public interest, and without compromising the integrity of legal or criminal processes.
We advise that a settlement of any kind—monetary or otherwise—is premature and unjustified in the current circumstances, for the following reasons:
(a) Recommended Criminal Referral Bars Civil Compensation
The COI has recommended an investigation and, if warranted, criminal charges against Ms. Malimali for potential offences including:
Abuse of office (Crimes Act),
Providing false or misleading information (FICAC Act / Penal Code),
Breach of public trust.
It would be highly inappropriate and premature for the government to pay compensation to an individual whose appointment was:
Obtained under false pretences, and
Subject to a pending criminal investigation.
(b) Appointment was Void ab Initio (Invalid from the Start)
The COI has established that the appointment was made without lawful jurisdiction, contrary to section 82 of the Constitution. Therefore, even if Ms. Malimali acted in good faith, her appointment never had legal force, and she is not entitled to civil compensation for acting in a role she was never lawfully permitted to hold.
(c) Public Policy and Precedent
Settling with Ms. Malimali in the face of criminal allegations:
Would set a dangerous precedent for future unlawful appointments,
Could be interpreted as government endorsement of unconstitutional or deceptive conduct, or of abuse of office.
Would likely be challenged by Parliament, media, or civil society as a misuse of public funds.
(d) Judicial Review Proceedings Should Be Stayed or Struck Out
We recommend instructing counsel to:
File for a stay of the judicial review proceedings pending the outcome of any criminal investigation,
Alternatively, seek strike-out of the claim on the basis that it is an abuse of process, particularly if the applicant’s conduct is central to the illegality.
3. Recommendations
No settlement negotiations should be entered into with Ms. Malimali at this stage.
The Attorney-General’s Office should advise the court that:
The COI has referred the matter for criminal investigation,
Any compensation claim is premature and should be stayed.
Cabinet may wish to publicly clarify its commitment to upholding the COI recommendations and not compromising concurrent criminal investigations.
Police or the DPP should be formally consulted to confirm the status of any investigation into Ms. Malimali’s conduct.
4. Conclusion:
Given the COI’s finding that Ms. Malimali’s appointment was illegal and may have involved criminal misconduct, any form of compensation would be legally unsound, politically indefensible, and potentially unlawful. The government is under no obligation to negotiate or settle while criminal liability is pending.
——————
Grubsheet is not at liberty to say where this advice has come from but that’s what the government has been told. And if it ignores that advice, it must be brought to account for doing so.
The Prime Minister’s reputation is very much on the line over this issue. He took the decision to advise the President to sack Barbara Malimali and if he doesn’t take this legal advice that he must not yield to her compensation demands, he doesn’t deserve to lead the nation.
As we’ve reported, Barbara Malimali is being investigated for a large number of very serious criminal offences.
The Ashton-Lewis Commission of Inquiry has accused her of no fewer than 17 counts of criminal conduct. The “possible offences” the COI lists are abuse of office (three counts), making a false statutory declaration (seven counts), perjury (two counts), forgery, violating the electoral laws, witness tampering, false representation and perverting the course of justice.
Under those circumstances, the Fijian people will not accept her walking away with $2-million of taxpayer funds. Or anything at all for that matter.
We will soon know if the Prime Minister has the resolve to take the legal advice he has been given or is as corrupt as anyone named in the Commission of Inquiry Report.
The precise “Possible Offences” committed by Barbara Malimali, which are contained in Chapter 7 of the COI Report that has been suppressed but that Grubsheet has published repeatedly since the Report was leaked.
The COI was revelatory and important in setting off evidence based investigations and trials, but isn’t evidence in itself.
If Barbie’s case progressed to trial, evidence would be tendered to court and then be on the public record.
This $2m is a big gag on Barbie and the evidence.
To be clear, evidence WAS given under oath at the COI. I think what you mean is that the Judge’s findings were on the “balance of probabilities” rather than “beyond reasonable doubt”, which is the threshold that needs to be met in court proceedings. It is something Justice Ashton-Lewis himself underlined in his Report.
What I mean is that the findings cannot be presented as evidence, nor can any of the sworn statements obtained during the COI.
This is no fault of anyones. It’s just now Inquiries work.
My point is more around why the Coalition would be so desperate to settle, as once this same evidence enters a trial situation, it becomes evidence on the public record.
But it’s great news that pressure has had them back down.
We look forward, once again, for the Commander of the Republic of Fiji Military Forces to step in and exercise its constitutional power to safeguard the integrity of the nation.
Are you suggesting they coup the Government?
If they do coup guess which community will suffer a backlash?
Be careful what you wish for. You may find yourself having to go bathe in the River Yamuna.
This kind of person is promoting racism in Fiji. In fact the people are so fed up with the Coalition government that they want someone to take over and throw it out. 🙄
Sadly, racism, hate, and bigotry are the itaukei DNA.
The Indo-Fijians have long lived rent-free in the itaukei minds and all itaukei failures and ills.
These sad, inherent race-based fixations and thinking are exactly what holds back the itaukei welfare and well-being.
These race-based traits are counterproductive and impede the itaukei’s progress but is lost on them.
Such deeply held thought processes cause much confusion to the itaukei and are further compounded by the misguided belief of being a lost tribe-from nowhere. Sadly…
Can the Commander do anything about the crocodiles who have been identified? Or what is the use of the COO report?
This is an automated message:
The Commander is unavailable to do the dirty work for you and your ilk.
Please try again later.
Error! Error! Error! Hit E to exit error! Escape!
The Fiji Constitution, specifically Section 131(2), assigns the Republic of Fiji Military Forces (RFMF) the “overall responsibility” for the security, defense, and well-being of Fiji and all Fijians.
Constitutional Mandate:
The 2013 Constitution of Fiji explicitly states that the RFMF’s overall role is to ensure the security, defense, and well-being of Fiji and its people.
RFMF’s Role:
The RFMF may be called upon to assist in situations where civilian mechanisms have been exhausted, or in cases of national emergency or threats to national security. end quote.
Nice try.
You are welcome to try again later.
Many MPs, led by the PM and Opposition Leader, have already become or will be millionaires by the next election. And Barbara is a prospective beneficiary too as she’s to be elevated overnight to being a millionairess, just like Lynda. So Rusi and his team should expect to be busy as crime grows due to the forever widening rich-poor gap.
A grand opportunity for Fred et al to review themselves as the legal advice identifies the media as a challenger against the misuse of public funds, besides some (not all) MPs and NGOs.
Eyes too on the Land of the Long White Cloud if they will keep on keeping on with paisa support after the rejection of their KC offer.
A mind boggling $9m spent on infrastructure upgrades in Lau for the recent installation of Roko Uluilakeba as Tui Lau.
Hon. Vasu once said 3,000+ chiefly titles are vacant across Fiji, with the PM revealing 300+ vacant titles in Tailevu Province alone during a recent Council meeting.
So the well documented Fiji-wide infrastructure deficiency can be actually addressed through the reduction of these vacant chiefly titles. Let’s remember however, that Hon. Biman has to set aside $2m for the Barbie Girl.
And Hon. Lalabalavu can forget the public suffering inside and outside our hospitals. Valelevu Health Centre is a prime and living example of this “persecution” of the poor.
If Malimali had the small amount of sense that she was born with, instead of blackmailing the government to keep her mouth shut, she should be on the next flight out of here and for her own good to a place that doesn’t recognise extradition orders.
Although, sticking around gives the authorities more time to make sure that there is a cell available at the nearest woman’s prison to where she currently lives so that her visitors don’t have to travel too far on visitors day to see her.
Davo..of course she can board the flight to Tuvalu..only 3 hours away from Vitia
And she can go and practice law there..lol
I don’t know Graham, but it seems that RABUKA is scripting his ironic demise.
At this point, the only fitting solution is an unceremonious removal, the likes of which he doesn’t repudiate, but rather use as a campaign platform to show the people that he is a reformed individual.
He is a cancer to Fiji. Tick tock tick tock
Well done GD.
The cabal acting behind the scenes in full force. 2 million is excessive considering no lies were said in the COI report.
And so it now seems it wasn’t him & he was unaware….he didn’t send the AG to talk of settlement 🥴.
I think Rabuka wrote that song “It wasn’t me.”
The real problem is Rabuka. He’s no leader. A coward and a manipulator, he thrives on everything evil and divisive. This is what we get for rewarding a criminal who’s been evading justice since 87. And we have cunning people like these i taukei half cooked fool of themselves lawyers being hailed as great law minds by my fellow i taukei. Get rid of ethno nationalists and this nation will prosper.
Vinaka.