Can Chief Justice Salesi Temo Be Suspended for Misbehaviour for Allegedly Interfering With FICAC’s Prosecution of Barbara Malimali?
Yes. If the allegation is proven — that the Chief Justice interfered with a pending or intended prosecution by directing the Chief Registrar to prevent the laying of charges against Barbara Malimali — that would amount to serious judicial misbehaviour, justifying suspension and investigation under the Constitution of Fiji.
Legal Threshold for Suspension – Section 112 of the Constitution
Under the 2013 Constitution:
A Judge may be removed from office only for inability to perform the functions of office (whether arising from infirmity of body or mind or any other cause), misbehaviour or serious breach of a code of conduct.
If the Judicial Services Commission is satisfied that the matter should be investigated, the President must suspend the Judge while a tribunal conducts an inquiry.
Therefore, suspension is justified if there is credible evidence of misbehaviour, pending a full tribunal inquiry.
Why the Alleged Interference Is Misbehaviour
If the Chief Justice:
Abuse of Judicial Power
The judiciary has no legal authority to direct or restrain FICAC or any delegated prosecutors in individual prosecutorial decisions. That is strictly prohibited under Section 117(3) of the Constitution.
b.
Obstruction of Justice
Stopping a lawfully contemplated prosecution, especially of a senior official under a corruption watchdog, is obstruction of justice, plain and simple. This is more serious because it concerns internal anti-corruption accountability.
c.
Undermining the Rule of Law
It violates the most basic principle of the rule of law — that no one is above prosecution, and that the judiciary must not shield any person, particularly a public officer, from due legal process.
3. Role of the Chief Registrar and Prosecutorial Interference
The Chief Registrar Tomasi Bainivalu is not part of FICAC or the DPP’s Office, and has no prosecutorial authority. If the Chief Justice used the Chief Registrar to relay instructions to Ms. Puleiwai (a delegated prosecutor or legal officer handling the matter), this would amount to indirect interference with the FICAC's prosecutorial independence, which is constitutionally protected.
4. Why This Is Worse Than Interference With a Politician’s Case
This case concerned alleged corruption or misconduct by Malimali, Commissioner of FICAC, the very institution tasked with prosecuting corruption. If Salesi Temo was blocking internal accountability, it created a situation where there was no check on corruption at the top of FICAC.
The Chief Justice Salesi Temo's directive to Bainivalu was a systemic threat to:
Moreover, it was not correct for Temo to appoint Barbara Malimali as FICAC Commissioner without requiring two written references, if that is a requirement under either the FICAC Act, relevant regulations, or judicial appointment protocols that guide such appointments.
His claim — that he appointed her based on observing her “capabilities” as a defence lawyer — does not satisfy objective appointment standards designed to ensure transparency, merit, and impartiality in public office appointments.
Key concerns:
Conclusion:
If the two-referee requirement was mandatory, then Chief Justice Temo’s appointment was procedurally improper. Even if it was only a best practice or standard guideline, ignoring it for personal judgment undermines the credibility and neutrality of both the judiciary and FICAC.
*Barbara Malimali had listed two lawyers, Filimoni Vosarogo and Tanya Waqanika as her potential referees for the Ficac Commissioner's job.
Yes. If the allegation is proven — that the Chief Justice interfered with a pending or intended prosecution by directing the Chief Registrar to prevent the laying of charges against Barbara Malimali — that would amount to serious judicial misbehaviour, justifying suspension and investigation under the Constitution of Fiji.
Legal Threshold for Suspension – Section 112 of the Constitution
Under the 2013 Constitution:
A Judge may be removed from office only for inability to perform the functions of office (whether arising from infirmity of body or mind or any other cause), misbehaviour or serious breach of a code of conduct.
If the Judicial Services Commission is satisfied that the matter should be investigated, the President must suspend the Judge while a tribunal conducts an inquiry.
Therefore, suspension is justified if there is credible evidence of misbehaviour, pending a full tribunal inquiry.
Why the Alleged Interference Is Misbehaviour
If the Chief Justice:
- Used his judicial or administrative position to pressure or direct the Chief Registrar to interfere with prosecutorial decisions concerning FICAC, and
- Caused the blocking of charges against FICAC Commissioner Barbara Malimali, despite clear prosecutorial intent to proceed, this would constitute:
Abuse of Judicial Power
The judiciary has no legal authority to direct or restrain FICAC or any delegated prosecutors in individual prosecutorial decisions. That is strictly prohibited under Section 117(3) of the Constitution.
b.
Obstruction of Justice
Stopping a lawfully contemplated prosecution, especially of a senior official under a corruption watchdog, is obstruction of justice, plain and simple. This is more serious because it concerns internal anti-corruption accountability.
c.
Undermining the Rule of Law
It violates the most basic principle of the rule of law — that no one is above prosecution, and that the judiciary must not shield any person, particularly a public officer, from due legal process.
3. Role of the Chief Registrar and Prosecutorial Interference
The Chief Registrar Tomasi Bainivalu is not part of FICAC or the DPP’s Office, and has no prosecutorial authority. If the Chief Justice used the Chief Registrar to relay instructions to Ms. Puleiwai (a delegated prosecutor or legal officer handling the matter), this would amount to indirect interference with the FICAC's prosecutorial independence, which is constitutionally protected.
4. Why This Is Worse Than Interference With a Politician’s Case
This case concerned alleged corruption or misconduct by Malimali, Commissioner of FICAC, the very institution tasked with prosecuting corruption. If Salesi Temo was blocking internal accountability, it created a situation where there was no check on corruption at the top of FICAC.
The Chief Justice Salesi Temo's directive to Bainivalu was a systemic threat to:
- Institutional credibility;
- Public confidence in FICAC and the judiciary;
- Constitutional independence of prosecutorial and oversight bodies.
Moreover, it was not correct for Temo to appoint Barbara Malimali as FICAC Commissioner without requiring two written references, if that is a requirement under either the FICAC Act, relevant regulations, or judicial appointment protocols that guide such appointments.
His claim — that he appointed her based on observing her “capabilities” as a defence lawyer — does not satisfy objective appointment standards designed to ensure transparency, merit, and impartiality in public office appointments.
Key concerns:
- Departure from procedure:
If the appointment process formally requires two referees or references, then skipping that requirement is a procedural irregularity. The Chief Justice does not have discretion to override formal legal criteria unless explicitly permitted. - Conflict of interest risk:
Appointing someone based on personal familiarity or subjective observation in court raises perception of bias or favouritism, especially in an anti-corruption role where independence and integrity are paramount. - Lack of vetting:
Objective references serve as checks against misconduct, fitness, and integrity. In Malimali’s case, there were known controversies (e.g., her drunken episode with a sitting Judge who was hearing her client's case in Tuvalu). Proper referee vetting might have flagged those issues. - Erosion of public confidence:
FICAC must be seen as politically neutral and professionally rigorous. Skipping formalities can undermine public trust, especially given widespread concern about politicisation and selective prosecution.
Conclusion:
If the two-referee requirement was mandatory, then Chief Justice Temo’s appointment was procedurally improper. Even if it was only a best practice or standard guideline, ignoring it for personal judgment undermines the credibility and neutrality of both the judiciary and FICAC.
*Barbara Malimali had listed two lawyers, Filimoni Vosarogo and Tanya Waqanika as her potential referees for the Ficac Commissioner's job.
