"Acting appointments are a routine feature of public administration and are expressly recognised by constitutional and administrative law. An individual who assumes an office under apparent authority, and performs its functions in good faith, is treated in law as a lawful office-holder unless and until a court rules otherwise. A later finding that an appointment was procedurally defective does not retroactively criminalise the conduct of the acting office-holder. Nor does it convert that individual into a legal trespasser from the date of appointment."
| A recent Facebook post by Tanya Waqanika concerning developments at the Fiji Independent Commission Against Corruption (FICAC) advances a claim that warrants correction. In referring to commentary by Niko Nawaikula and Charlie Charters, the post suggests that Lavi Rokoika will be personally and criminally liable for any decision taken in her Acting capacity, on the premise that her appointment is unlawful. That assertion is legally unsound. This response addresses the claim directly, without entering into political debate or the merits of ongoing litigation. The Context of the Claim Waqanika’s post links several matters: the timing of the advertisement for a substantive FICAC Commissioner; the pending delivery of judgment in Barbara Malimali's judicial review; and public criticism by Nawaikula and Charters regarding the appointment process. |   |
From these circumstances, the post advances the conclusion that the Acting Commissioner will be exposed to personal and criminal liability for “everything and anything” sanctioned in that role.
This conclusion does not follow from the premises.
Acting Appointments and Apparent Authority
Acting appointments are a routine feature of public administration and are expressly recognised by constitutional and administrative law. An individual who assumes an office under apparent authority, and performs its functions in good faith, is treated in law as a lawful office-holder unless and until a court rules otherwise.
A later finding that an appointment was procedurally defective does not retroactively criminalise the conduct of the acting office-holder. Nor does it convert that individual into a legal trespasser from the date of appointment.
The De Facto Officer Principle
The suggestion that personal or criminal liability automatically follows from an allegedly unlawful appointment ignores the well-established de facto officer doctrine. Under this principle, acts performed by a person exercising the functions of an office under colour of authority remain legally effective and are not treated as nullities.
The doctrine exists to protect:
Absent proof of bad faith, corruption, or knowing abuse of power, the office-holder is not personally exposed merely because the appointment process is later impugned.
Criminal Liability: A Category Error
Neither Waqanika’s post nor the commentary she references identifies any statutory offence that would render an Acting FICAC Commissioner criminally liable simply for performing the functions of the office. Criminal responsibility arises only where:
Civil Liability Lies With the State, Not the Successor
To the extent that Barbara Maimali seeks reinstatement, compensation, or damages in her judicial review, such remedies, if granted, would lie against the State. They do not create derivative personal liability for a successor acting office-holder who had no role in the impugned termination or appointment process.
Personal civil liability arises only in cases of misfeasance in public office or comparable wrongdoing, requiring proof of malice or deliberate abuse of power. No such conduct is alleged in relation to the routine exercise of statutory functions by the Acting Commissioner.
The Risk of Misleading Public Discourse
By invoking the authority of Nawaikula and Charters without distinguishing political criticism from settled legal principle, the post risks misleading the public as to the nature of legal accountability. Public law does not operate by implication, assumption, or moral outrage; it operates through defined doctrines, evidentiary standards, and judicial determination.
Claims of automatic personal or criminal liability undermine, rather than advance, respect for the rule of law.
Conclusion
Disputes over appointments to constitutional offices are properly resolved by courts through judicial review. Until such time, an acting office-holder exercising statutory powers under apparent authority does not incur personal or criminal liability merely because the legality of the appointment is contested.
The law does not support the claim advanced by Waqanika or attributed to others in her post. To assert otherwise is to misstate settled principles of public and criminal law.
This conclusion does not follow from the premises.
Acting Appointments and Apparent Authority
Acting appointments are a routine feature of public administration and are expressly recognised by constitutional and administrative law. An individual who assumes an office under apparent authority, and performs its functions in good faith, is treated in law as a lawful office-holder unless and until a court rules otherwise.
A later finding that an appointment was procedurally defective does not retroactively criminalise the conduct of the acting office-holder. Nor does it convert that individual into a legal trespasser from the date of appointment.
The De Facto Officer Principle
The suggestion that personal or criminal liability automatically follows from an allegedly unlawful appointment ignores the well-established de facto officer doctrine. Under this principle, acts performed by a person exercising the functions of an office under colour of authority remain legally effective and are not treated as nullities.
The doctrine exists to protect:
- institutional continuity,
- public confidence in official acts, and
- individuals who rely on decisions made by public authorities.
Absent proof of bad faith, corruption, or knowing abuse of power, the office-holder is not personally exposed merely because the appointment process is later impugned.
Criminal Liability: A Category Error
Neither Waqanika’s post nor the commentary she references identifies any statutory offence that would render an Acting FICAC Commissioner criminally liable simply for performing the functions of the office. Criminal responsibility arises only where:
- Parliament has defined an offence;
- the prohibited conduct is proved; and
- the required mental element is established.
Civil Liability Lies With the State, Not the Successor
To the extent that Barbara Maimali seeks reinstatement, compensation, or damages in her judicial review, such remedies, if granted, would lie against the State. They do not create derivative personal liability for a successor acting office-holder who had no role in the impugned termination or appointment process.
Personal civil liability arises only in cases of misfeasance in public office or comparable wrongdoing, requiring proof of malice or deliberate abuse of power. No such conduct is alleged in relation to the routine exercise of statutory functions by the Acting Commissioner.
The Risk of Misleading Public Discourse
By invoking the authority of Nawaikula and Charters without distinguishing political criticism from settled legal principle, the post risks misleading the public as to the nature of legal accountability. Public law does not operate by implication, assumption, or moral outrage; it operates through defined doctrines, evidentiary standards, and judicial determination.
Claims of automatic personal or criminal liability undermine, rather than advance, respect for the rule of law.
Conclusion
Disputes over appointments to constitutional offices are properly resolved by courts through judicial review. Until such time, an acting office-holder exercising statutory powers under apparent authority does not incur personal or criminal liability merely because the legality of the appointment is contested.
The law does not support the claim advanced by Waqanika or attributed to others in her post. To assert otherwise is to misstate settled principles of public and criminal law.
When Counsel Speaks Outside the Courtroom on FACEBOOK:
The Limits of Advocacy During Active Judicial Review
Public confidence in the administration of justice depends not only on what happens in court, but also on the restraint exercised by those who appear before it.
That principle is tested when counsel in an active case uses public platforms to comment on the supposed legal consequences for others whose positions depend on the outcome of the very proceedings in which counsel is engaged.
This issue has arisen following public commentary by Tanya Waqanika, who is acting for Barbara Malimali in judicial review proceedings before the Fiji High Court. The proceedings challenge Ms Malimali’s removal and the process by which she was replaced by Lavi Rokoika.
Waqanika’s commentary does not merely explain the existence of the litigation or the relief sought. It extends to asserted personal and criminal consequences for Rokoika arising from her continued exercise of the office of Acting Commissioner while the case remains before the court.
That raises serious questions of professional propriety.
Advocacy and restraint
Lawyers are not prohibited from commenting publicly while a case is on foot. However, they are subject to a higher standard than politicians or private commentators. Their paramount duty is to the court and to the administration of justice, and that duty extends beyond the courtroom.
It is one thing for counsel to outline procedural facts or to correct public misinformation. It is quite another to assert, or imply, that a named individual (Lavi Rokoika) particularly a successor office-holder whose authority is directly in issue, faces personal or criminal liability depending on how the litigation is resolved.
Such commentary risks converting public explanation into surrogate advocacy.
Pressure by implication
When counsel publicly frames the consequences of litigation in terms of legal exposure for a successor, the effect is not neutral. Statements suggesting personal or criminal liability may reasonably be perceived as pressure on the office-holder to act, or refrain from acting, in ways that advantage the litigant’s position
In this case, any alleged consequences for Rokoika depend entirely on matters yet to be determined by the court: whether the termination of Malimali was lawful, whether the replacement process was valid, and whether any legal consequences flow from those findings. To present such consequences as real or impending while the court is seized of the issues is to pre-empt the judicial process.
Misstating legal accountability
There is a further difficulty. The proposition that an acting office-holder incurs personal or criminal liability merely by performing statutory functions under a contested appointment is not supported by established public or criminal law. Liability of that kind arises only where there is bad faith, corruption, or deliberate abuse of power - not from the mere fact of acting under an appointment later challenged in court.
Advancing such claims publicly while litigating the appointment itself risks misleading the public and heightening institutional uncertainty.
Sub judice in substance, if not in name
Although Fiji does not apply sub judice rules with rigid formality, the underlying principle remains intact: public commentary must not create a real risk of interfering with the administration of justice. Lawyers, by virtue of their professional role, are expected to exercise particular caution.
Commentary attributing adverse legal consequences to a non-party whose position is directly affected by the pending proceedings sits uneasily with that obligation.
The proper forum
Arguments about the legality of appointments and the consequences that may follow belong in affidavits, submissions, and judgments. Courts exist precisely to determine contested legal issues. Public commentary should not be used to dramatise or amplify disputes that are properly before the judiciary.
Conclusion
The issue here is not freedom of expression, nor the right of counsel to defend a client. It is the boundary between legitimate explanation and improper pressure.
When counsel in an active judicial review publicly asserts legal consequences for a successor office-holder whose authority is in issue, that boundary is at risk of being crossed.
Professional restraint in such circumstances is not optional. It is an essential safeguard of the rule of law.
That principle is tested when counsel in an active case uses public platforms to comment on the supposed legal consequences for others whose positions depend on the outcome of the very proceedings in which counsel is engaged.
This issue has arisen following public commentary by Tanya Waqanika, who is acting for Barbara Malimali in judicial review proceedings before the Fiji High Court. The proceedings challenge Ms Malimali’s removal and the process by which she was replaced by Lavi Rokoika.
Waqanika’s commentary does not merely explain the existence of the litigation or the relief sought. It extends to asserted personal and criminal consequences for Rokoika arising from her continued exercise of the office of Acting Commissioner while the case remains before the court.
That raises serious questions of professional propriety.
Advocacy and restraint
Lawyers are not prohibited from commenting publicly while a case is on foot. However, they are subject to a higher standard than politicians or private commentators. Their paramount duty is to the court and to the administration of justice, and that duty extends beyond the courtroom.
It is one thing for counsel to outline procedural facts or to correct public misinformation. It is quite another to assert, or imply, that a named individual (Lavi Rokoika) particularly a successor office-holder whose authority is directly in issue, faces personal or criminal liability depending on how the litigation is resolved.
Such commentary risks converting public explanation into surrogate advocacy.
Pressure by implication
When counsel publicly frames the consequences of litigation in terms of legal exposure for a successor, the effect is not neutral. Statements suggesting personal or criminal liability may reasonably be perceived as pressure on the office-holder to act, or refrain from acting, in ways that advantage the litigant’s position
In this case, any alleged consequences for Rokoika depend entirely on matters yet to be determined by the court: whether the termination of Malimali was lawful, whether the replacement process was valid, and whether any legal consequences flow from those findings. To present such consequences as real or impending while the court is seized of the issues is to pre-empt the judicial process.
Misstating legal accountability
There is a further difficulty. The proposition that an acting office-holder incurs personal or criminal liability merely by performing statutory functions under a contested appointment is not supported by established public or criminal law. Liability of that kind arises only where there is bad faith, corruption, or deliberate abuse of power - not from the mere fact of acting under an appointment later challenged in court.
Advancing such claims publicly while litigating the appointment itself risks misleading the public and heightening institutional uncertainty.
Sub judice in substance, if not in name
Although Fiji does not apply sub judice rules with rigid formality, the underlying principle remains intact: public commentary must not create a real risk of interfering with the administration of justice. Lawyers, by virtue of their professional role, are expected to exercise particular caution.
Commentary attributing adverse legal consequences to a non-party whose position is directly affected by the pending proceedings sits uneasily with that obligation.
The proper forum
Arguments about the legality of appointments and the consequences that may follow belong in affidavits, submissions, and judgments. Courts exist precisely to determine contested legal issues. Public commentary should not be used to dramatise or amplify disputes that are properly before the judiciary.
Conclusion
The issue here is not freedom of expression, nor the right of counsel to defend a client. It is the boundary between legitimate explanation and improper pressure.
When counsel in an active judicial review publicly asserts legal consequences for a successor office-holder whose authority is in issue, that boundary is at risk of being crossed.
Professional restraint in such circumstances is not optional. It is an essential safeguard of the rule of law.
