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Between Inquiry and Indictment: The Legal Reach of the Commission of Inquiry and Its Power to Recommend Criminal Charges
CHAPTER SEVEN of the Commission of Inquiry report occupies a sensitive but necessary space in Fiji’s constitutional architecture. It addresses “Possible Offences” arising from the evidence heard, while repeatedly acknowledging a fundamental limit: the Commission is not a criminal court.
This chapter is therefore not a judgment of guilt. It is a legal mapping exercise, identifying conduct that, if independently investigated and proved, may constitute offences under existing criminal statutes. Understanding the legitimacy and limits of that exercise is critical, particularly where the report names specific individuals and links their conduct to defined offences.
The Commission’s own statement of legal limits
At the outset of Chapter 7, the COI is explicit about its lack of adjudicative power. It reiterates that it cannot make pronouncements on criminal guilt or innocence, and that any apparent unlawfulness is discussed only because the Terms of Reference require it to comment on the legal character of the conduct it examined.
Crucially, the Commission also invokes section 11 of the Commissions of Inquiry Act (Cap 3), which provides that evidence given before a commission is not admissible in civil or criminal proceedings, except in cases of perjury.
The report spells out the consequence of this provision: the Police must conduct their own independent investigations, and prosecutors cannot rely on COI testimony itself when framing charges.
This framing is not incidental. It is the legal foundation that permits the Commission to discuss “possible offences” without trespassing into the domain of courts or prosecutors.
Identification, not adjudication
Chapter 7 does three distinct things: (1) Identifies conduct disclosed by evidence before the COI; (2) Matches that conduct to existing offences under Fiji law (principally the Crimes Act, Electoral Act, FICAC Act, and False Information Act); and (3) Flags legal risk, often using cautious language such as “potentially”, “at risk of”, or “could amount to". This approach is consistent across the chapter.
The Commission does not purport to decide facts to a criminal standard, nor does it declare that offences were committed. Instead, it draws attention to conduct that warrants scrutiny by authorities constitutionally empowered to investigate and prosecute.
The treatment of Barbara Malimali as a case study
In relation to Barbara Malimali, Chapter 7 is unusually detailed. It catalogues a range of potential offences, including:
Abuse of office under section 139 of the Crimes Act, particularly in relation to:
Forgery and false representation, including signing or issuing documents that allegedly misrepresented facts or authority.
Importantly, even where the Commission’s language becomes firm, stating, for example, that certain actions “could amount to” abuse of office or perverting justice, it stops short of recommending prosecution in the sense of directing that charges be laid.
Instead, it repeatedly notes that independent investigation is required, and in some instances observes that Police investigations are already underway.
The legal basis for recommending “possible offences”
The critical question is whether the COI had the power to do this at all.
The answer, as a matter of law, is yes but only in a limited and carefully circumscribed sense.
Source of the power
A commission of inquiry derives its authority from its establishing instrument; and the Commissions of Inquiry Act. Where the Terms of Reference require the Commission to inquire into lawfulness, propriety, or integrity, it is legally permissible, indeed often unavoidable, for the Commission to describe conduct in legal terms. That includes identifying which statutes might be engaged if the conduct were proved in another forum.
Courts in common law jurisdictions have consistently accepted that commissions may make findings of fact on a civil or administrative standard; and express opinions about whether conduct appears unlawful, provided they do not determine criminal liability.
Chapter 7 stays within that boundary.
Equally important is what the COI cannot do:
Chapter 7 acknowledges all of this expressly. The repeated emphasis on independent Police investigation is not a disclaimer for form’s sake; it is a recognition that the prosecutorial chain remains constitutionally separate.
Are the recommendations legally problematic?
From a legal standpoint, the Commission’s approach in Chapter 7 is defensible and orthodox.
It does not invent offences. Every “possible offence” identified is anchored in an existing statutory provision, often quoted verbatim. The Commission also avoids emotive or declaratory language of guilt. Instead, it frames its conclusions as risk assessments arising from the evidence before it.
The greater legal risk would have arisen had the Commission:
Practical effect of Chapter 7
The practical consequence of Chapter 7 is not prosecution, but activation:
The COI’s role ends where those institutions’ roles begin.
Conclusion: recommendation without usurpation
Chapter 7 demonstrates a Commission walking a narrow but lawful path. It does not convict, does not prosecute, and does not direct outcomes. What it does is identify conduct that, if proven elsewhere, may satisfy the elements of recognised criminal offences.
In doing so, the Commission acted within its mandate. It neither exceeded its powers nor intruded into the exclusive domain of courts and prosecutors.
The power it exercised was not the power to charge, but the power to illuminate legal risk.
That distinction - between inquiry and indictment - is not merely technical. It is the line that preserves both accountability and the rule of law.
CHAPTER SEVEN of the Commission of Inquiry report occupies a sensitive but necessary space in Fiji’s constitutional architecture. It addresses “Possible Offences” arising from the evidence heard, while repeatedly acknowledging a fundamental limit: the Commission is not a criminal court.
This chapter is therefore not a judgment of guilt. It is a legal mapping exercise, identifying conduct that, if independently investigated and proved, may constitute offences under existing criminal statutes. Understanding the legitimacy and limits of that exercise is critical, particularly where the report names specific individuals and links their conduct to defined offences.
The Commission’s own statement of legal limits
At the outset of Chapter 7, the COI is explicit about its lack of adjudicative power. It reiterates that it cannot make pronouncements on criminal guilt or innocence, and that any apparent unlawfulness is discussed only because the Terms of Reference require it to comment on the legal character of the conduct it examined.
Crucially, the Commission also invokes section 11 of the Commissions of Inquiry Act (Cap 3), which provides that evidence given before a commission is not admissible in civil or criminal proceedings, except in cases of perjury.
The report spells out the consequence of this provision: the Police must conduct their own independent investigations, and prosecutors cannot rely on COI testimony itself when framing charges.
This framing is not incidental. It is the legal foundation that permits the Commission to discuss “possible offences” without trespassing into the domain of courts or prosecutors.
Identification, not adjudication
Chapter 7 does three distinct things: (1) Identifies conduct disclosed by evidence before the COI; (2) Matches that conduct to existing offences under Fiji law (principally the Crimes Act, Electoral Act, FICAC Act, and False Information Act); and (3) Flags legal risk, often using cautious language such as “potentially”, “at risk of”, or “could amount to". This approach is consistent across the chapter.
The Commission does not purport to decide facts to a criminal standard, nor does it declare that offences were committed. Instead, it draws attention to conduct that warrants scrutiny by authorities constitutionally empowered to investigate and prosecute.
The treatment of Barbara Malimali as a case study
In relation to Barbara Malimali, Chapter 7 is unusually detailed. It catalogues a range of potential offences, including:
Abuse of office under section 139 of the Crimes Act, particularly in relation to:
- adopting unlawful processes for handling election-related complaints; and
- directing work to stop or slow investigations involving ministers, including the Biman Prasad file.
- interference with investigations;
- stopping contemplated charges; and
- conduct affecting witnesses during the pendency of the Inquiry itself.
Forgery and false representation, including signing or issuing documents that allegedly misrepresented facts or authority.
Importantly, even where the Commission’s language becomes firm, stating, for example, that certain actions “could amount to” abuse of office or perverting justice, it stops short of recommending prosecution in the sense of directing that charges be laid.
Instead, it repeatedly notes that independent investigation is required, and in some instances observes that Police investigations are already underway.
The legal basis for recommending “possible offences”
The critical question is whether the COI had the power to do this at all.
The answer, as a matter of law, is yes but only in a limited and carefully circumscribed sense.
Source of the power
A commission of inquiry derives its authority from its establishing instrument; and the Commissions of Inquiry Act. Where the Terms of Reference require the Commission to inquire into lawfulness, propriety, or integrity, it is legally permissible, indeed often unavoidable, for the Commission to describe conduct in legal terms. That includes identifying which statutes might be engaged if the conduct were proved in another forum.
Courts in common law jurisdictions have consistently accepted that commissions may make findings of fact on a civil or administrative standard; and express opinions about whether conduct appears unlawful, provided they do not determine criminal liability.
Chapter 7 stays within that boundary.
Equally important is what the COI cannot do:
- It cannot lay charges.
- It cannot compel prosecution.
- It cannot bind the Police or the Director of Public Prosecutions.
- It cannot convert Inquiry evidence into trial evidence (save for perjury).
Chapter 7 acknowledges all of this expressly. The repeated emphasis on independent Police investigation is not a disclaimer for form’s sake; it is a recognition that the prosecutorial chain remains constitutionally separate.
Are the recommendations legally problematic?
From a legal standpoint, the Commission’s approach in Chapter 7 is defensible and orthodox.
It does not invent offences. Every “possible offence” identified is anchored in an existing statutory provision, often quoted verbatim. The Commission also avoids emotive or declaratory language of guilt. Instead, it frames its conclusions as risk assessments arising from the evidence before it.
The greater legal risk would have arisen had the Commission:
- declared that individuals were guilty;
- urged immediate prosecution; or
- purported to resolve contested facts conclusively. It did none of these things.
Practical effect of Chapter 7
The practical consequence of Chapter 7 is not prosecution, but activation:
- It places Police on notice of conduct that warrants examination.
- It informs the Director of Public Prosecutions of the legal terrain.
- It creates a public record that certain matters cannot simply be ignored without explanation. Whether charges ultimately follow depends entirely on:
- independent evidence gathered by investigators; and
- the prosecutorial judgment of the DPP.
The COI’s role ends where those institutions’ roles begin.
Conclusion: recommendation without usurpation
Chapter 7 demonstrates a Commission walking a narrow but lawful path. It does not convict, does not prosecute, and does not direct outcomes. What it does is identify conduct that, if proven elsewhere, may satisfy the elements of recognised criminal offences.
In doing so, the Commission acted within its mandate. It neither exceeded its powers nor intruded into the exclusive domain of courts and prosecutors.
The power it exercised was not the power to charge, but the power to illuminate legal risk.
That distinction - between inquiry and indictment - is not merely technical. It is the line that preserves both accountability and the rule of law.
Why They Ran to Court: The Real Reason Those Named in the Inquiry Sought the Protection of the Fiji High Court: The paradox at the heart of the legal challenge
At first glance, the rush by some individuals named in Chapter 7 of the Commission of Inquiry to seek relief from the Fiji High Court appears puzzling. A commission of inquiry cannot prosecute, cannot convict, and cannot impose criminal penalties.
Why, then, the urgency? Why the litigation?
The answer lies in a fundamental misunderstanding, sometimes encouraged, sometimes feigned, about what commissions do and what their findings trigger. The legal significance of a commission does not end where prosecutorial power begins. In fact, that is precisely where its influence starts.
A Commission does not charge but it sets the legal terrain. The COI was careful, almost meticulous, in acknowledging its limits. It did not declare guilt. It did not order prosecutions. Instead, it identified conduct that may amount to offences under existing criminal statutes and recommended that such matters be referred to the appropriate authorities for independent investigation.
That distinction is not cosmetic. It is constitutional. But it does not render the findings inert.
Once a commission formally identifies 'possible offences' and names the individuals whose conduct may engage those offences, three immediate legal consequences follow.
Criminal exposure becomes real, not hypothetical
Police and prosecutors do not operate in a vacuum. A COI report performs an evidentiary and analytical function that no ordinary complaint does. It organises facts, identifies legal pathways, and signals seriousness.
When a commission says that certain conduct may constitute abuse of office or attempting to pervert the course of justice, it effectively invites investigation. Police are placed on notice. The Director of Public Prosecutions is alerted. Silence thereafter becomes difficult to justify.
For those named, the risk is no longer abstract. It is proximate.
Challenging the COI in court is therefore not about escaping conviction; it is about preventing the investigative chain from gaining momentum.
Reputational harm is itself a legal injury
Judicial review is not confined to criminal consequences. Courts recognise that reputational damage, professional ruin, and loss of office are legally cognisable harms.
A COI report becomes a public document, is cited by media, Parliament, and regulators, and can justify suspensions, dismissals, and disqualification from future roles. For senior public officials, this damage can be permanent. Even if no charge is ever laid, the label 'named in a Commission of Inquiry for possible offences' follows.
That is why the law insists that commissions observe procedural fairness. If a person can show they were denied a fair opportunity to respond to adverse findings, the High Court has jurisdiction to intervene. In short, they ran to court to protect not just liberty, but livelihood.
Stopping the report can slow everything else
A successful challenge to a COI report, whether by quashing findings, redacting names, or declaring procedural unfairness, has immediate downstream effects. Police investigations may stall. Prosecutors may hesitate. Witnesses may waver. Defence counsel gain procedural leverage.
Even an unsuccessful challenge can buy time. Time matters. Evidence goes stale. Public attention shifts. Institutional priorities change. From a defence perspective, early High Court litigation is not an act of panic; it is a standard containment strategy.
COI evidence does not vanish, but it can be neutralised
It is true that evidence given to a commission is generally inadmissible in later criminal proceedings, save for perjury. But that protection is narrower than it appears.
Documents, electronic records, and communications such as WhatsApp messages do not become immune because they were first shown to a commission. Police can obtain the same material independently.
What a High Court challenge can do, however, is undermine the credibility of the commission’s narrative, cast doubt on the handling of evidence, and arm defence lawyers with arguments about prejudice and unfairness. That can materially affect later prosecutorial decisions.
Silence would have been legally reckless
There is a final, often overlooked reason why those named went to court: failure to challenge would have been used against them. In future proceedings, criminal, civil, or disciplinary, the absence of any attempt to contest adverse findings could be portrayed as acquiescence. The High Court challenge is therefore also a matter of record-keeping: a formal assertion that the findings are disputed.
In legal terms, it preserves position.
What this tells us about the power of the Commission. Ironically, the rush to the High Court is the clearest proof that the Commission’s work mattered. If the COI were truly toothless, no urgent applications would have been filed, no senior counsel briefed, no allegations of procedural unfairness raised. People do not litigate against documents that carry no consequence.
The COI did not exceed its mandate by identifying possible offences. It exercised precisely the power Parliament intended: to expose conduct that demands further scrutiny, while leaving judgment to the courts.
Therefore, running to court was rational, not contradictory. Those named in Chapter 7 did not seek High Court protection because the Commission could jail them. They did so because it could change their legal future.
The Commission lit the path. Police and prosecutors may yet decide whether to walk it. But once that light was switched on, standing still was no longer an option.
In that sense, the High Court challenges were not an overreaction. They were an acknowledgment of a simple truth in public law: being named is often the most consequential act of all.
At first glance, the rush by some individuals named in Chapter 7 of the Commission of Inquiry to seek relief from the Fiji High Court appears puzzling. A commission of inquiry cannot prosecute, cannot convict, and cannot impose criminal penalties.
Why, then, the urgency? Why the litigation?
The answer lies in a fundamental misunderstanding, sometimes encouraged, sometimes feigned, about what commissions do and what their findings trigger. The legal significance of a commission does not end where prosecutorial power begins. In fact, that is precisely where its influence starts.
A Commission does not charge but it sets the legal terrain. The COI was careful, almost meticulous, in acknowledging its limits. It did not declare guilt. It did not order prosecutions. Instead, it identified conduct that may amount to offences under existing criminal statutes and recommended that such matters be referred to the appropriate authorities for independent investigation.
That distinction is not cosmetic. It is constitutional. But it does not render the findings inert.
Once a commission formally identifies 'possible offences' and names the individuals whose conduct may engage those offences, three immediate legal consequences follow.
Criminal exposure becomes real, not hypothetical
Police and prosecutors do not operate in a vacuum. A COI report performs an evidentiary and analytical function that no ordinary complaint does. It organises facts, identifies legal pathways, and signals seriousness.
When a commission says that certain conduct may constitute abuse of office or attempting to pervert the course of justice, it effectively invites investigation. Police are placed on notice. The Director of Public Prosecutions is alerted. Silence thereafter becomes difficult to justify.
For those named, the risk is no longer abstract. It is proximate.
Challenging the COI in court is therefore not about escaping conviction; it is about preventing the investigative chain from gaining momentum.
Reputational harm is itself a legal injury
Judicial review is not confined to criminal consequences. Courts recognise that reputational damage, professional ruin, and loss of office are legally cognisable harms.
A COI report becomes a public document, is cited by media, Parliament, and regulators, and can justify suspensions, dismissals, and disqualification from future roles. For senior public officials, this damage can be permanent. Even if no charge is ever laid, the label 'named in a Commission of Inquiry for possible offences' follows.
That is why the law insists that commissions observe procedural fairness. If a person can show they were denied a fair opportunity to respond to adverse findings, the High Court has jurisdiction to intervene. In short, they ran to court to protect not just liberty, but livelihood.
Stopping the report can slow everything else
A successful challenge to a COI report, whether by quashing findings, redacting names, or declaring procedural unfairness, has immediate downstream effects. Police investigations may stall. Prosecutors may hesitate. Witnesses may waver. Defence counsel gain procedural leverage.
Even an unsuccessful challenge can buy time. Time matters. Evidence goes stale. Public attention shifts. Institutional priorities change. From a defence perspective, early High Court litigation is not an act of panic; it is a standard containment strategy.
COI evidence does not vanish, but it can be neutralised
It is true that evidence given to a commission is generally inadmissible in later criminal proceedings, save for perjury. But that protection is narrower than it appears.
Documents, electronic records, and communications such as WhatsApp messages do not become immune because they were first shown to a commission. Police can obtain the same material independently.
What a High Court challenge can do, however, is undermine the credibility of the commission’s narrative, cast doubt on the handling of evidence, and arm defence lawyers with arguments about prejudice and unfairness. That can materially affect later prosecutorial decisions.
Silence would have been legally reckless
There is a final, often overlooked reason why those named went to court: failure to challenge would have been used against them. In future proceedings, criminal, civil, or disciplinary, the absence of any attempt to contest adverse findings could be portrayed as acquiescence. The High Court challenge is therefore also a matter of record-keeping: a formal assertion that the findings are disputed.
In legal terms, it preserves position.
What this tells us about the power of the Commission. Ironically, the rush to the High Court is the clearest proof that the Commission’s work mattered. If the COI were truly toothless, no urgent applications would have been filed, no senior counsel briefed, no allegations of procedural unfairness raised. People do not litigate against documents that carry no consequence.
The COI did not exceed its mandate by identifying possible offences. It exercised precisely the power Parliament intended: to expose conduct that demands further scrutiny, while leaving judgment to the courts.
Therefore, running to court was rational, not contradictory. Those named in Chapter 7 did not seek High Court protection because the Commission could jail them. They did so because it could change their legal future.
The Commission lit the path. Police and prosecutors may yet decide whether to walk it. But once that light was switched on, standing still was no longer an option.
In that sense, the High Court challenges were not an overreaction. They were an acknowledgment of a simple truth in public law: being named is often the most consequential act of all.
“From my professional perspective, the report is a travesty of justice. We are poisoning ourselves if we take this COI Report seriously … The Report’s conclusions are the triumph of idle social media prattle and lazy legal guesswork.”
Sacked Attorney-General Graham Leung
