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Commission of Inquiry chairperson Justice David Ashton-Lewis has hit back at former Attorney-General Graham Leung’s public rejection of the inquiry’s findings, saying Leung “failed to carry out his job” during the controversial appointment of Barbara Malimali.
Speaking to Radio New Zealand (RNZ) on Saturday; Justice AshtonLewis said Mr Leung did not do his job properly.
The exchanges have opened the can worms in the appointment of Ms Malimali as the Commissioner of Fiji Independent Commission Against Corruption (FICAC).
“Well, of course he would publicly reject the findings because he is adversely named. I never said that he conspired. My point was that he didn’t do his job properly;” Justice Ashton-Lewis said.
” … and both of them (Graham Leung and Chief Justice Salesi Temo) failed when they got word that Malimali had complaints against her for abuse of office currently running in FICAC. They should have gone further and stopped her appointment and said we need to do further investigation in that. Neither of them did.”
Justice Ashton-Lewis defended the Commission’s work against claims that it exceeded its mandate.
“They’ve got to produce evidence of that. Ms [Tanya] Waqanika and Ms Malimali may hold that view. All I can say to them is Ms Mason and myself followed the terms of reference absolutely to the final point,” he said.
“Because the terms of reference were not only about Barbara Malimali’s appointment. I found her appointment to be rushed by all those other name people who wanted to get her in. They wanted cases against most of them themselves and other government people closed or thrown out. So I found that the appointment was rushed.
She was appointed illegally, not according to openness and integrity.
“They can say I was wrong. They can say I was biased. I did my job properly.”
Justice Ashton-Lewis said while he anticipated lawyers involved in the inquiry to file an application in the High Court to have the report quashed, citing alleged breaches of the Commission’s terms of reference, he is adamant that the inquiry adhered fully to its legal scope.
Speaking to Radio New Zealand (RNZ) on Saturday; Justice AshtonLewis said Mr Leung did not do his job properly.
The exchanges have opened the can worms in the appointment of Ms Malimali as the Commissioner of Fiji Independent Commission Against Corruption (FICAC).
“Well, of course he would publicly reject the findings because he is adversely named. I never said that he conspired. My point was that he didn’t do his job properly;” Justice Ashton-Lewis said.
” … and both of them (Graham Leung and Chief Justice Salesi Temo) failed when they got word that Malimali had complaints against her for abuse of office currently running in FICAC. They should have gone further and stopped her appointment and said we need to do further investigation in that. Neither of them did.”
Justice Ashton-Lewis defended the Commission’s work against claims that it exceeded its mandate.
“They’ve got to produce evidence of that. Ms [Tanya] Waqanika and Ms Malimali may hold that view. All I can say to them is Ms Mason and myself followed the terms of reference absolutely to the final point,” he said.
“Because the terms of reference were not only about Barbara Malimali’s appointment. I found her appointment to be rushed by all those other name people who wanted to get her in. They wanted cases against most of them themselves and other government people closed or thrown out. So I found that the appointment was rushed.
She was appointed illegally, not according to openness and integrity.
“They can say I was wrong. They can say I was biased. I did my job properly.”
Justice Ashton-Lewis said while he anticipated lawyers involved in the inquiry to file an application in the High Court to have the report quashed, citing alleged breaches of the Commission’s terms of reference, he is adamant that the inquiry adhered fully to its legal scope.
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*My friendship with veteran civil servant Jioji Kotobalavu spans decades, and I fully endorse his view on Graham Leung. He failed to defend the public interest. I also stand with Prime Minister Rabuka in his decision to remove Leung — a move I believe was both justified and necessary. Both men have shown clarity and conviction in addressing Leung’s conduct, and I share their judgment without hesitation. |   |
'Graham Leung cannot have it both ways. He cannot sign off on a judicial appointment, accept the legal gravitas that comes with consultation, and then retreat to the shadows when public scrutiny arrives. The law does not permit it. The public should not tolerate it.
The story, Leung, is not over. It is just the beginning.'
At a recent press conference, Graham Leung downplayed his role in a Judicial Services Commission (JSC) appointment of Barbara Malimali by declaring, “I just signed off. End of story.” He further suggested that his statutory role was merely to be consulted, and that his signature on the JSC form should not be construed as a “ringing endorsement.”
With respect, Leung’s attempt to minimise his legal and constitutional responsibilities is both unconvincing and deeply concerning. Public office is not a matter of passive acquiescence. It is a position of trust and scrutiny—particularly when it involves the administration of justice.
The Law Demands More Than Rubber Stamping
Leung’s claim that the law “only” required consultation is legally superficial. The requirement to consult is not a procedural nicety or tick-box exercise. Jurisprudence from across the Commonwealth, including decisions from the Privy Council and senior courts in Australia, Fiji, and the UK, make it clear that meaningful consultation must be genuine, informed, and active. It is not a perfunctory conversation. Nor is it satisfied by mere silence or passive agreement.
In R (Moseley) v Haringey LBC [2014] UKSC 56, Lord Reed described consultation as requiring a “conscientious consideration” of the issues raised. This standard makes clear that those consulted must be engaged in deliberative judgment, not administrative indifference.
Leung’s language — “I just signed off” — betrays a dereliction of that duty. It is an admission, not a defence.
Signature Carries Legal and Moral Weight
In public law, a signature is not just ink on a form. It represents the conclusion of a legal process in which a public officeholder affirms that due diligence has been exercised, that the process was sound, and that the outcome is within legal bounds. To now suggest that a signature means nothing is to undermine the very foundation of legal responsibility.
Leung’s dismissiveness — “End of story” — flies in the face of accountability. If a judicial appointment later proves controversial, unconstitutional, or unethical, his role cannot be airbrushed out of the narrative.
Accountability Cannot Be Outsourced
Even if the JSC were the primary decision-maker, Leung’s consultative role exists precisely to provide a check on poor or politicised appointments. The fact that the law required his input shows that the legislature anticipated that such appointments should not occur in isolation.
If Leung had concerns but remained silent — or worse, signed off knowing full well the issues — then he is complicit, not exonerated. If he had no concerns, he must now own the consequences. There is no safe middle ground of vague non-responsibility.
A Dangerous Precedent
Leung’s comments set a dangerous precedent for how public officials treat statutory consultation requirements — as hollow formalities. Such thinking breeds impunity. It hollows out safeguards and opens the door to appointments that may be politically driven, procedurally flawed, or legally challengeable.
If the public is to trust institutions like the judiciary — particularly in jurisdictions where judicial independence is fragile — then those who oversee or influence appointments must be held to the highest standard of accountability.
Leung cannot have it both ways. He cannot sign off on a judicial appointment, accept the legal gravitas that comes with consultation, and then retreat to the shadows when public scrutiny arrives. The law does not permit it. The public should not tolerate it.
The story, Leung, is not over. It is just beginning.
With respect, Leung’s attempt to minimise his legal and constitutional responsibilities is both unconvincing and deeply concerning. Public office is not a matter of passive acquiescence. It is a position of trust and scrutiny—particularly when it involves the administration of justice.
The Law Demands More Than Rubber Stamping
Leung’s claim that the law “only” required consultation is legally superficial. The requirement to consult is not a procedural nicety or tick-box exercise. Jurisprudence from across the Commonwealth, including decisions from the Privy Council and senior courts in Australia, Fiji, and the UK, make it clear that meaningful consultation must be genuine, informed, and active. It is not a perfunctory conversation. Nor is it satisfied by mere silence or passive agreement.
In R (Moseley) v Haringey LBC [2014] UKSC 56, Lord Reed described consultation as requiring a “conscientious consideration” of the issues raised. This standard makes clear that those consulted must be engaged in deliberative judgment, not administrative indifference.
Leung’s language — “I just signed off” — betrays a dereliction of that duty. It is an admission, not a defence.
Signature Carries Legal and Moral Weight
In public law, a signature is not just ink on a form. It represents the conclusion of a legal process in which a public officeholder affirms that due diligence has been exercised, that the process was sound, and that the outcome is within legal bounds. To now suggest that a signature means nothing is to undermine the very foundation of legal responsibility.
Leung’s dismissiveness — “End of story” — flies in the face of accountability. If a judicial appointment later proves controversial, unconstitutional, or unethical, his role cannot be airbrushed out of the narrative.
Accountability Cannot Be Outsourced
Even if the JSC were the primary decision-maker, Leung’s consultative role exists precisely to provide a check on poor or politicised appointments. The fact that the law required his input shows that the legislature anticipated that such appointments should not occur in isolation.
If Leung had concerns but remained silent — or worse, signed off knowing full well the issues — then he is complicit, not exonerated. If he had no concerns, he must now own the consequences. There is no safe middle ground of vague non-responsibility.
A Dangerous Precedent
Leung’s comments set a dangerous precedent for how public officials treat statutory consultation requirements — as hollow formalities. Such thinking breeds impunity. It hollows out safeguards and opens the door to appointments that may be politically driven, procedurally flawed, or legally challengeable.
If the public is to trust institutions like the judiciary — particularly in jurisdictions where judicial independence is fragile — then those who oversee or influence appointments must be held to the highest standard of accountability.
Leung cannot have it both ways. He cannot sign off on a judicial appointment, accept the legal gravitas that comes with consultation, and then retreat to the shadows when public scrutiny arrives. The law does not permit it. The public should not tolerate it.
The story, Leung, is not over. It is just beginning.
'In public law, a signature is not just ink on a form. It represents the conclusion of a legal process in which a public officeholder affirms that due diligence has been exercised, that the process was sound, and that the outcome is within legal bounds. To now suggest that a signature means nothing is to undermine the very foundation of legal responsibility.'
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