| *The Supreme Court has overturned the Court of Appeal and restored Joshua Rahman’s conviction and 23-year sentence. The decision does not establish that Prime Minister Sitiveni Rabuka and President Ratu Naiqama Lalabalavu will succeed in challenging Justice Dane Tuiqereqere’s Commission of Inquiry judgment. *It does, however, expose the weakness of claiming that their proposed appeal must necessarily be a waste of public time and money. *An appeal is part of the judicial process, not an attack upon it. |  Joshua Rahman |
 Justice Gates The Supreme Court judge Justice Anthony Gate’s decision to restore Joshua Aziz Rahman’s conviction for possession of 39.5 kilograms of cocaine is an important reminder of a basic feature of the administration of justice: a judgment of an intermediate court may be authoritative and binding unless overturned, but it is not necessarily infallible. |  |
Rahman had been convicted in the High Court and sentenced to 23 years’ imprisonment, with a non-parole period of 14 years. The Court of Appeal subsequently quashed that conviction and sentence and ordered a retrial. The State did not accept that outcome. It petitioned the Supreme Court, arguing that the Court of Appeal had misunderstood the governing law and had failed to recognise that any error made at trial had not produced a substantial miscarriage of justice.
Rahman filed his own cross-appeal. He contended that, once the conviction had been quashed, a retrial should not be ordered. Among the considerations advanced on his behalf were the years he had already spent in custody, the fading of witnesses’ memories and the reported death of a material witness.
The Supreme Court granted special leave to both sides. It ultimately dismissed Rahman’s challenge, allowed the State’s appeal, set aside the Court of Appeal’s decision and restored the High Court conviction and sentence.
That result is highly relevant to the current public argument surrounding the Commission of Inquiry judgment delivered by Justice Dane Tuiqereqere but only if the comparison is made with legal discipline.
What the Rahman appeal decided
The central statutory issue concerned section 32 of the Illicit Drugs Control Act. The section creates a presumption relating to possession where illicit drugs are discovered on premises under an accused person’s control.
The critical question was the nature of the burden placed upon the accused. Was Rahman required to disprove possession, or was he required only to produce sufficient evidence to raise a reasonable doubt?
The Supreme Court confirmed that the provision imposed an evidential burden, not a legal or persuasive burden, upon the accused. In other words, Rahman did not have to prove his innocence or establish on the balance of probabilities that he did not possess the cocaine. He was required only to point to evidence capable of raising a reasonable doubt. The ultimate obligation remained upon the prosecution to establish guilt beyond reasonable doubt.
The trial judge had initially described the burden in legally questionable terms. But an appellate court does not examine one expression in isolation and automatically set aside a conviction. It must examine the judgment as a whole, the way the evidence was treated, the applicable statutory provisions and whether the error actually affected the result.
The Supreme Court concluded that, despite the trial judge’s initial language, the correct standard had ultimately been applied. The prosecution had remained responsible for proving the offence beyond reasonable doubt, and the evidence supported the conviction. The error identified did not, in the Supreme Court’s assessment, produce a substantial miscarriage of justice.
This distinction is fundamental. Not every error requires the whole proceeding to be annulled. Appellate courts frequently distinguish between an error that is merely verbal or technical; an error that affects only a separable part of a decision; an error that can be corrected by applying the proper legal test; and an error so fundamental that the decision cannot safely stand. The Supreme Court evidently concluded that the Rahman case fell outside the final category.
The Court of Appeal was entitled to rule, and the State was entitled to appeal
The Supreme Court’s decision does not mean that the Court of Appeal acted improperly or irresponsibly. Nor does it make the judges who allowed Rahman’s appeal legitimate targets for personal abuse.
The Court of Appeal reached a judicial conclusion after considering what it regarded as significant errors. Those reported concerns included the lawfulness and timing of the search, the circumstances of Rahman’s arrest and detention, and the trial judge’s treatment of the statutory presumption. It quashed the conviction but ordered a retrial, thereby recognising that the prosecution case was not necessarily incapable of being tried again.
The State believed that the Court of Appeal had itself fallen into error. It therefore invoked the appellate machinery established by law. The Supreme Court agreed with the State.
That is the judicial system working as designed.
Had the State accepted the Court of Appeal’s decision merely because an appeal would consume time and public money, Rahman’s conviction would not have been restored. A sentence of 23 years for possession of almost 40 kilograms of cocaine would have remained quashed, and the State would have been required to embark upon a costly and difficult retrial, assuming a fair retrial remained possible.
The money spent on taking the case to the Supreme Court cannot sensibly be described as wasted merely because expenditure was involved. The appeal settled an important point concerning section 32, clarified the burden imposed upon an accused person, determined whether the Court of Appeal had correctly interfered with the conviction, and avoided a retrial that could itself have imposed substantial expense upon the public.
The relevance to the Commission of Inquiry litigation
Justice Dane Tuiqereqere’s judgment concerning the Commission of Inquiry into Barbara Malimali’s appointment as FICAC Commissioner is, of course, very different from Rahman’s criminal prosecution.
The Rahman case concerned criminal responsibility, statutory possession, the burden of proof and the appellate proviso. The COI proceedings involve administrative and constitutional law, procedural fairness, the powers of a Commission of Inquiry, the responsibilities of the President and Prime Minister, and the legal consequences of defects in the inquiry process.
The Rahman decision therefore cannot be cited as authority that Justice Tuiqereqere was wrong. Nor does it predict that Rabuka or President Lalabalavu will succeed.
Its relevance is institutional rather than doctrinal: it demonstrates why a strongly reasoned judgment may nevertheless be tested and overturned on appeal.
Justice Tuiqereqere found serious procedural defects. He concluded that the COI report was unlawful and null and void, and that the President, Prime Minister and Commission had breached natural justice. Adverse findings against several affected persons were quashed. Questions of costs and damages remain to be determined. The High Court has scheduled a further hearing concerning costs and damages.
Those are findings of very considerable constitutional and public importance. Precisely because they are so consequential, there is a respectable public interest in obtaining appellate guidance on their legal foundation and scope.
Among the questions potentially deserving consideration are:
These are not imaginary or merely political questions. They concern the allocation of constitutional responsibility among an independent Commission, the Prime Minister, the President and the courts.
The judgment itself recognised legitimate concerns
The argument that the entire exercise was self-evidently pointless is further weakened by passages in Justice Tuiqereqere’s own judgment.
According to the Prime Minister’s lawyers, the judge accepted that the COI had served a “useful purpose” and had made valid points about the appointment process. In particular, the judgment reportedly recognised the relevance of the Tuvalu incident involving Malimali and the fact that there was an active FICAC investigation concerning her when she was appointed.
The judge considered it inappropriate for Malimali to be appointed Commissioner while an active criminal investigation against her remained pending. He also found the circumstances of the Tuvalu episode relevant to her suitability and something that should have been disclosed to the Judicial Services Commission. The Prime Minister’s lawyers have relied upon those findings while explaining their intended, targeted appeal.
The High Court’s objection was therefore not necessarily that there was nothing worthy of investigation. It concerned the legality and fairness of the process by which adverse conclusions were reached and acted upon.
That distinction matters. A process can be directed at legitimate concerns and still be legally defective. Equally, the existence of procedural defects does not necessarily mean that every factual finding, every piece of evidence and every recommendation must disappear for every purpose.
Whether Justice Tuiqereqere selected the legally correct remedy, and whether the whole report had to fall, is an obvious issue for appellate examination.
Why the accusation of wasting money is premature
Critics are entitled to question the cost of litigation involving public officials. The Prime Minister and President do not enjoy an unlimited licence to litigate at public expense. Government expenditure must be proportionate, transparent and directed toward a genuine public purpose.
But it is premature to declare the proposed appeal a waste before the grounds have been fully argued and judicially determined.
Such an accusation assumes the very conclusion that the appeal exists to test: that Justice Tuiqereqere’s judgment is correct in every material respect and that no appellate court could reasonably interfere with it.
The Rahman case demonstrates the danger of that assumption. After the Court of Appeal quashed the conviction, some might have argued that the State should accept defeat and avoid spending more public money. The Supreme Court has now held that the Court of Appeal’s decision should itself be quashed and the original conviction restored.
If an appeal succeeds in clarifying constitutional responsibilities, narrowing an overbroad remedy, protecting the institutional position of the presidency, or correcting an error of law, the expenditure cannot fairly be dismissed as waste.
Even if an appeal ultimately fails, failure alone does not establish waste. Litigation may still legitimately obtain authoritative clarification of unsettled law. The proper test is not simply whether the appellant wins. It is whether the appeal raises reasonably arguable questions of sufficient importance to justify the cost.
The President’s position deserves particular care
Public discussion should also distinguish between the respective positions of Rabuka and President Lalabalavu.
The President ordinarily acts in accordance with constitutional advice. Rabuka has publicly accepted that he advised the President and has said that the political and legal responsibility should fall upon him rather than upon the Head of State. The Fiji Times reported Rabuka’s position that any appeal would focus upon findings affecting his own actions.
If Justice Tuiqereqere’s judgment attributes a breach of natural justice independently to the President, an appeal may be needed to clarify whether the President possessed a legal obligation or practical opportunity to reopen the Commission’s procedures; whether he could lawfully refuse or delay action upon ministerial advice; whether receiving or publishing the report made him legally responsible for defects committed by the Commission; and how constitutional immunity, presidential functions and public-law remedies interact.
These are questions extending well beyond the reputations of Rabuka and Lalabalavu. The answers may govern how future presidents deal with commission reports and ministerial advice. Leaving such questions uncertain could itself impose costs upon future governments and litigants.
Respecting Justice Tuiqereqere includes respecting the right of appeal
An appeal should not be presented as an act of defiance against Justice Tuiqereqere. The right to appeal is part of the same legal system within which his judgment was delivered.
A judge’s independence is not undermined because a dissatisfied party challenges the decision in a higher court. Nor is respect for the judiciary measured by whether parties silently accept every first-instance ruling.
The correct response is to identify the alleged errors precisely, file the appeal within time, comply with the existing orders unless stayed, and present the arguments without attacking the judge personally.
The same standard applies to the critics. They may disagree with the appeal, question its grounds and demand an accounting of public expenditure. But shouting that public money is necessarily being wasted, before the appellate court has heard the case, substitutes political certainty for legal analysis.
A neutral assessment must acknowledge four limitations.
First, Rahman was a criminal case; the COI litigation is predominantly an administrative and constitutional matter.
Second, the Supreme Court’s conclusion that a trial error caused no substantial miscarriage of justice does not automatically translate into a doctrine by which procedural unfairness in a commission may be disregarded.
Third, natural justice is not a minor technicality. If affected persons were exposed to grave findings without adequate notice or a fair opportunity to answer them, the courts are entitled, and sometimes obliged, to intervene.
Fourth, government-funded appeals require greater fiscal justification than private appeals because taxpayers bear the expense.
Nevertheless, none of those qualifications supports the proposition that an appeal is inherently wasteful. They simply mean that Rabuka and Lalabalavu must demonstrate properly arguable grounds and seek remedies tailored to the alleged errors.
The Rahman litigation travelled from conviction in the High Court, to reversal and a retrial order in the Court of Appeal, and finally restoration of the conviction by the Supreme Court. At each stage, judges reached conclusions under the authority of the Constitution and the law.
The final result confirms that the Court of Appeal’s ruling, however authoritative when delivered, was not beyond correction.
That is the sober lesson for the COI controversy.
Rahman filed his own cross-appeal. He contended that, once the conviction had been quashed, a retrial should not be ordered. Among the considerations advanced on his behalf were the years he had already spent in custody, the fading of witnesses’ memories and the reported death of a material witness.
The Supreme Court granted special leave to both sides. It ultimately dismissed Rahman’s challenge, allowed the State’s appeal, set aside the Court of Appeal’s decision and restored the High Court conviction and sentence.
That result is highly relevant to the current public argument surrounding the Commission of Inquiry judgment delivered by Justice Dane Tuiqereqere but only if the comparison is made with legal discipline.
What the Rahman appeal decided
The central statutory issue concerned section 32 of the Illicit Drugs Control Act. The section creates a presumption relating to possession where illicit drugs are discovered on premises under an accused person’s control.
The critical question was the nature of the burden placed upon the accused. Was Rahman required to disprove possession, or was he required only to produce sufficient evidence to raise a reasonable doubt?
The Supreme Court confirmed that the provision imposed an evidential burden, not a legal or persuasive burden, upon the accused. In other words, Rahman did not have to prove his innocence or establish on the balance of probabilities that he did not possess the cocaine. He was required only to point to evidence capable of raising a reasonable doubt. The ultimate obligation remained upon the prosecution to establish guilt beyond reasonable doubt.
The trial judge had initially described the burden in legally questionable terms. But an appellate court does not examine one expression in isolation and automatically set aside a conviction. It must examine the judgment as a whole, the way the evidence was treated, the applicable statutory provisions and whether the error actually affected the result.
The Supreme Court concluded that, despite the trial judge’s initial language, the correct standard had ultimately been applied. The prosecution had remained responsible for proving the offence beyond reasonable doubt, and the evidence supported the conviction. The error identified did not, in the Supreme Court’s assessment, produce a substantial miscarriage of justice.
This distinction is fundamental. Not every error requires the whole proceeding to be annulled. Appellate courts frequently distinguish between an error that is merely verbal or technical; an error that affects only a separable part of a decision; an error that can be corrected by applying the proper legal test; and an error so fundamental that the decision cannot safely stand. The Supreme Court evidently concluded that the Rahman case fell outside the final category.
The Court of Appeal was entitled to rule, and the State was entitled to appeal
The Supreme Court’s decision does not mean that the Court of Appeal acted improperly or irresponsibly. Nor does it make the judges who allowed Rahman’s appeal legitimate targets for personal abuse.
The Court of Appeal reached a judicial conclusion after considering what it regarded as significant errors. Those reported concerns included the lawfulness and timing of the search, the circumstances of Rahman’s arrest and detention, and the trial judge’s treatment of the statutory presumption. It quashed the conviction but ordered a retrial, thereby recognising that the prosecution case was not necessarily incapable of being tried again.
The State believed that the Court of Appeal had itself fallen into error. It therefore invoked the appellate machinery established by law. The Supreme Court agreed with the State.
That is the judicial system working as designed.
Had the State accepted the Court of Appeal’s decision merely because an appeal would consume time and public money, Rahman’s conviction would not have been restored. A sentence of 23 years for possession of almost 40 kilograms of cocaine would have remained quashed, and the State would have been required to embark upon a costly and difficult retrial, assuming a fair retrial remained possible.
The money spent on taking the case to the Supreme Court cannot sensibly be described as wasted merely because expenditure was involved. The appeal settled an important point concerning section 32, clarified the burden imposed upon an accused person, determined whether the Court of Appeal had correctly interfered with the conviction, and avoided a retrial that could itself have imposed substantial expense upon the public.
The relevance to the Commission of Inquiry litigation
Justice Dane Tuiqereqere’s judgment concerning the Commission of Inquiry into Barbara Malimali’s appointment as FICAC Commissioner is, of course, very different from Rahman’s criminal prosecution.
The Rahman case concerned criminal responsibility, statutory possession, the burden of proof and the appellate proviso. The COI proceedings involve administrative and constitutional law, procedural fairness, the powers of a Commission of Inquiry, the responsibilities of the President and Prime Minister, and the legal consequences of defects in the inquiry process.
The Rahman decision therefore cannot be cited as authority that Justice Tuiqereqere was wrong. Nor does it predict that Rabuka or President Lalabalavu will succeed.
Its relevance is institutional rather than doctrinal: it demonstrates why a strongly reasoned judgment may nevertheless be tested and overturned on appeal.
Justice Tuiqereqere found serious procedural defects. He concluded that the COI report was unlawful and null and void, and that the President, Prime Minister and Commission had breached natural justice. Adverse findings against several affected persons were quashed. Questions of costs and damages remain to be determined. The High Court has scheduled a further hearing concerning costs and damages.
Those are findings of very considerable constitutional and public importance. Precisely because they are so consequential, there is a respectable public interest in obtaining appellate guidance on their legal foundation and scope.
Among the questions potentially deserving consideration are:
- Whether the Commission’s procedural failures justified declaring the entire report null and void, or whether the unlawful portions were legally severable.
- Whether the High Court’s remedies extended further than was necessary to vindicate the rights of the successful applicants.
- Whether the President or Prime Minister had an independent legal duty to remedy procedural defects committed by an ostensibly independent Commission before receiving, acting upon or publishing its report.
- Whether publication itself amounted to a fresh breach of natural justice or was merely the communication of a report already completed by the Commission
- Whether the President’s constitutional position and obligation to act upon ministerial advice were fully accommodated in assigning responsibility.
- Whether recommendations to investigating or prosecuting authorities should have been treated differently from final findings determining legal liability.
- Whether the judge’s recognition that the inquiry served a useful purpose and identified legitimate concerns can be reconciled with the remedy invalidating the report in its entirety.
These are not imaginary or merely political questions. They concern the allocation of constitutional responsibility among an independent Commission, the Prime Minister, the President and the courts.
The judgment itself recognised legitimate concerns
The argument that the entire exercise was self-evidently pointless is further weakened by passages in Justice Tuiqereqere’s own judgment.
According to the Prime Minister’s lawyers, the judge accepted that the COI had served a “useful purpose” and had made valid points about the appointment process. In particular, the judgment reportedly recognised the relevance of the Tuvalu incident involving Malimali and the fact that there was an active FICAC investigation concerning her when she was appointed.
The judge considered it inappropriate for Malimali to be appointed Commissioner while an active criminal investigation against her remained pending. He also found the circumstances of the Tuvalu episode relevant to her suitability and something that should have been disclosed to the Judicial Services Commission. The Prime Minister’s lawyers have relied upon those findings while explaining their intended, targeted appeal.
The High Court’s objection was therefore not necessarily that there was nothing worthy of investigation. It concerned the legality and fairness of the process by which adverse conclusions were reached and acted upon.
That distinction matters. A process can be directed at legitimate concerns and still be legally defective. Equally, the existence of procedural defects does not necessarily mean that every factual finding, every piece of evidence and every recommendation must disappear for every purpose.
Whether Justice Tuiqereqere selected the legally correct remedy, and whether the whole report had to fall, is an obvious issue for appellate examination.
Why the accusation of wasting money is premature
Critics are entitled to question the cost of litigation involving public officials. The Prime Minister and President do not enjoy an unlimited licence to litigate at public expense. Government expenditure must be proportionate, transparent and directed toward a genuine public purpose.
But it is premature to declare the proposed appeal a waste before the grounds have been fully argued and judicially determined.
Such an accusation assumes the very conclusion that the appeal exists to test: that Justice Tuiqereqere’s judgment is correct in every material respect and that no appellate court could reasonably interfere with it.
The Rahman case demonstrates the danger of that assumption. After the Court of Appeal quashed the conviction, some might have argued that the State should accept defeat and avoid spending more public money. The Supreme Court has now held that the Court of Appeal’s decision should itself be quashed and the original conviction restored.
If an appeal succeeds in clarifying constitutional responsibilities, narrowing an overbroad remedy, protecting the institutional position of the presidency, or correcting an error of law, the expenditure cannot fairly be dismissed as waste.
Even if an appeal ultimately fails, failure alone does not establish waste. Litigation may still legitimately obtain authoritative clarification of unsettled law. The proper test is not simply whether the appellant wins. It is whether the appeal raises reasonably arguable questions of sufficient importance to justify the cost.
The President’s position deserves particular care
Public discussion should also distinguish between the respective positions of Rabuka and President Lalabalavu.
The President ordinarily acts in accordance with constitutional advice. Rabuka has publicly accepted that he advised the President and has said that the political and legal responsibility should fall upon him rather than upon the Head of State. The Fiji Times reported Rabuka’s position that any appeal would focus upon findings affecting his own actions.
If Justice Tuiqereqere’s judgment attributes a breach of natural justice independently to the President, an appeal may be needed to clarify whether the President possessed a legal obligation or practical opportunity to reopen the Commission’s procedures; whether he could lawfully refuse or delay action upon ministerial advice; whether receiving or publishing the report made him legally responsible for defects committed by the Commission; and how constitutional immunity, presidential functions and public-law remedies interact.
These are questions extending well beyond the reputations of Rabuka and Lalabalavu. The answers may govern how future presidents deal with commission reports and ministerial advice. Leaving such questions uncertain could itself impose costs upon future governments and litigants.
Respecting Justice Tuiqereqere includes respecting the right of appeal
An appeal should not be presented as an act of defiance against Justice Tuiqereqere. The right to appeal is part of the same legal system within which his judgment was delivered.
A judge’s independence is not undermined because a dissatisfied party challenges the decision in a higher court. Nor is respect for the judiciary measured by whether parties silently accept every first-instance ruling.
The correct response is to identify the alleged errors precisely, file the appeal within time, comply with the existing orders unless stayed, and present the arguments without attacking the judge personally.
The same standard applies to the critics. They may disagree with the appeal, question its grounds and demand an accounting of public expenditure. But shouting that public money is necessarily being wasted, before the appellate court has heard the case, substitutes political certainty for legal analysis.
A neutral assessment must acknowledge four limitations.
First, Rahman was a criminal case; the COI litigation is predominantly an administrative and constitutional matter.
Second, the Supreme Court’s conclusion that a trial error caused no substantial miscarriage of justice does not automatically translate into a doctrine by which procedural unfairness in a commission may be disregarded.
Third, natural justice is not a minor technicality. If affected persons were exposed to grave findings without adequate notice or a fair opportunity to answer them, the courts are entitled, and sometimes obliged, to intervene.
Fourth, government-funded appeals require greater fiscal justification than private appeals because taxpayers bear the expense.
Nevertheless, none of those qualifications supports the proposition that an appeal is inherently wasteful. They simply mean that Rabuka and Lalabalavu must demonstrate properly arguable grounds and seek remedies tailored to the alleged errors.
The Rahman litigation travelled from conviction in the High Court, to reversal and a retrial order in the Court of Appeal, and finally restoration of the conviction by the Supreme Court. At each stage, judges reached conclusions under the authority of the Constitution and the law.
The final result confirms that the Court of Appeal’s ruling, however authoritative when delivered, was not beyond correction.
That is the sober lesson for the COI controversy.
Tuiqereqere Justice Tuiqereqere’s judgment remains binding unless and until it is stayed, varied or overturned. It deserves serious respect. But respect does not require treating it as immune from appellate scrutiny.
Rabuka and President Lalabalavu should not be guaranteed public funding for limitless or politically motivated litigation. They should be required to identify specific errors, explain the constitutional importance of the questions raised and account properly for public expenditure.
If they do so, however, it is wrong to condemn the appeal in advance as a waste of time and money. The Supreme Court’s restoration of Rahman’s conviction supplies the clearest contemporary answer: appeals exist because even consequential judgments can be reconsidered, corrected or refined.
The sensible position is neither to predict victory for Prime Minister Rabuka and President Ratu Naiqama Lalabalavu nor to declare their challenge futile before it is heard.
It is to allow the appellate courts to decide whether Justice Tuiqereqere’s conclusions and remedies withstand the scrutiny that Fiji’s legal system expressly provides.
Rabuka and President Lalabalavu should not be guaranteed public funding for limitless or politically motivated litigation. They should be required to identify specific errors, explain the constitutional importance of the questions raised and account properly for public expenditure.
If they do so, however, it is wrong to condemn the appeal in advance as a waste of time and money. The Supreme Court’s restoration of Rahman’s conviction supplies the clearest contemporary answer: appeals exist because even consequential judgments can be reconsidered, corrected or refined.
The sensible position is neither to predict victory for Prime Minister Rabuka and President Ratu Naiqama Lalabalavu nor to declare their challenge futile before it is heard.
It is to allow the appellate courts to decide whether Justice Tuiqereqere’s conclusions and remedies withstand the scrutiny that Fiji’s legal system expressly provides.
Editorial Note: A personal disclosure. Justice Anthony Gates, one of the Supreme Court judges who heard the Rahman appeal, and I have known each other for more than four decades. In 1984, while serving as a senior prosecutor in the Office of the Director of Public Prosecutions in Suva, he was one of three referees who supported my successful application for an Oxford University scholarship. I remain grateful for that support. Our association, however, has never prevented me from assessing his judicial decisions independently. I strongly endorsed Justice Gates’s courageous ruling in Chandrika Prasad (2000) that the 1997 Constitution remained Fiji’s supreme law and could not be permanently abrogated under the doctrine of necessity. The Fiji Court of Appeal substantially upheld that judgment. By contrast, I critically examined and either agreed or disagreed with his other rulings over the decades. Personal gratitude must never displace independent scrutiny. Nor should disagreement with a judgment diminish respect for the judge, the judicial office or the appellate process. My association with Justice Gates has never required unquestioning agreement: where I believed his reasoning defended constitutional government, I said so; where I believed a judgment warranted criticism, I said that too.
Coming: The Deeper Legal Question: Did Section 13(2A) Authorise Barbara Malimali to Use FICAC Funds (Public Money) to Pay Tanya Waqanika of Waqanika Law to Defend Her at the Commission of Inquiry?
IF WAQANIKA REPRESENTED “THE COMMISSIONER”, WHY IS THE VICTORY BEING CELEBRATED AS CLEARING BARBARA MALIMALI’S NAME?
A photograph posted by Tanya Waqanika following the High Court judgment raises an uncomfortable question about the justification originally given for using FICAC funds to pay Waqanika Law.
When FICAC Manager Finance Umar Risban Dean questioned whether FICAC should pay Malimali’s legal expenses before the Commission of Inquiry, Malimali drew a careful distinction.
She maintained that Waqanika was being engaged for “the Commissioner”, not for “Ms Malimali”.
That distinction was essential to her claim that section 13(2A) of the FICAC Act authorised the expenditure. If Waqanika represented the statutory office and protected FICAC’s institutional functions, the argument for payment from FICAC’s operational funds would be considerably stronger.
But Waqanika’s own Facebook celebration tells a different story.
When FICAC Manager Finance Umar Risban Dean questioned whether FICAC should pay Malimali’s legal expenses before the Commission of Inquiry, Malimali drew a careful distinction.
She maintained that Waqanika was being engaged for “the Commissioner”, not for “Ms Malimali”.
That distinction was essential to her claim that section 13(2A) of the FICAC Act authorised the expenditure. If Waqanika represented the statutory office and protected FICAC’s institutional functions, the argument for payment from FICAC’s operational funds would be considerably stronger.
But Waqanika’s own Facebook celebration tells a different story.
