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The Electoral Commission has revealed it was forced to communicate through a private Viber group and hold meetings outside the Fijian Elections Office (FEO) during a period without a substantive chairperson, describing the arrangement as unsustainable. The disclosure is contained in the Commission’s response to the Standing Committee on Foreign Affairs and Defence report tabled in Parliament on Friday - The Fiji Times, 19 July 2026
THE COMMISSION OF INQUIRY DID NOT CREATE THE CRISIS. IT EXPOSED IT:
Why the FEO and COI Deserve Defence, Not Blame
The claim that the Commission of Inquiry (COI) into the appointment of Barbara Malimali as Commissioner of the Fiji Independent Commission Against Corruption (FICAC) imposed an unnecessary financial and institutional burden on Fiji fundamentally misreads both the chronology and the constitutional context. It is an argument that confuses cause with consequence.
The available evidence, including the sworn affidavit of Electoral Commissioner Dr Atu Emberson-Bain, demonstrates that the institutional crisis predated the Commission of Inquiry by many months. The Commission did not manufacture the crisis; it was established because Fiji's constitutional institutions had already become embroiled in an unprecedented conflict.
The crisis began before the Commission of Inquiry
Critics argue that Prime Minister Sitiveni Rabuka was persuaded into establishing an unnecessary Commission of Inquiry in October 2024 after the Fiji Elections Office (FEO) and FICAC became embroiled in investigations involving the Electoral Commission.
The chronology tells a very different story.
Dr Atu Emberson-Bain's affidavit reveals that the relationship between the Electoral Commission, then chaired by Barbara Malimali, and Acting Supervisor of Elections Ana Mataiciwa had been steadily deteriorating throughout late 2023 and early 2024. The disagreements centred on constitutional responsibilities, consultation over the appointment of the substantive Supervisor of Elections, compliance with Electoral Commission directives, and the handling of election-related complaints.
These disputes existed long before Barbara Malimali resigned as Chair of the Electoral Commission to become FICAC Commissioner and months before the Prime Minister established the Commission of Inquiry.
The inquiry therefore cannot fairly be blamed for creating the institutional conflict.
It was convened because that conflict had already become impossible to ignore. Barbara Malimali's dual role explains the controversy. At the heart of the dispute lies an important constitutional fact often overlooked in public commentary.
Before becoming FICAC Commissioner, Barbara Malimali served as Chairperson of the Fiji Electoral Commission.
Dr Atu Emberson-Bain repeatedly refers in her affidavit to meetings chaired by Malimali, decisions taken under her leadership, and disputes between the Commission and the Acting Supervisor of Elections.
When Malimali later accepted appointment as FICAC Commissioner, she entered an office whose investigators were already examining matters involving the Electoral Commission she had only recently chaired.
Whether that situation created actual or perceived conflicts of interest was precisely one of the questions the Commission of Inquiry was established to investigate.
Constitutional disagreements, not politics
Contrary to suggestions that the dispute was merely political, Dr Atu Emberson-Bain's affidavit reveals a series of genuine constitutional disagreements.
She explains that the Electoral Commission believed the Constitutional Offices Commission had failed to comply with section 76(4) of the Constitution by properly consulting the Electoral Commission during the appointment of the substantive Supervisor of Elections. According to her evidence, the Electoral Commission considered the recruitment process fundamentally flawed and recommended that it be restarted.
Whether those concerns ultimately prove legally correct is for the courts to determine.
But they clearly demonstrate that constitutional issues, not partisan politics, lay at the heart of the dispute.
A dispute over constitutional authority
Dr Atu Emberson-Bain also sets out the Electoral Commission's understanding of its constitutional authority.
She relies on section 76 of the Constitution and relevant provisions of the Electoral Act, arguing that the Supervisor of Elections acts under the direction of the Electoral Commission and is legally obliged to comply with its lawful directives. She then identifies several instances in which she says those directives were not followed.
The then Acting Supervisor Ana Mataiciwa advanced a different legal interpretation.
That competing interpretation did not demonstrate institutional misconduct. It demonstrated the existence of a serious constitutional dispute requiring independent examination.
The Viber group was a consequence, not evidence of dysfunction
Recent commentary has portrayed the Electoral Commission's use of a private Viber group and meetings outside official premises as evidence of institutional incompetence.
Dr Atu Emberson-Bain's affidavit provides the missing context.
She explains that Commissioners established the private Viber group because of repeated leaks of confidential Electoral Commission information, concerns about security breaches and what they regarded as an increasingly hostile working environment. Meetings were subsequently moved outside the Fiji Elections Office for those same reasons.
Viewed in that context, the Viber group was not a symptom of administrative chaos.
It was an emergency measure adopted to preserve confidentiality after ordinary institutional arrangements had broken down.
The FICAC investigation disrupted Electoral Commission operations
Dr Atu Emberson-Bain also recounts the execution of FICAC's search warrant on Electoral Commission offices.
She describes the seizure of Commission files and equipment, the continuing retention of records, and the uncertainty that followed among Commissioners. She also recounts correspondence sent to the Judicial Services Commission expressing concern about the impact of the investigation on the Commission's constitutional functions.
Those events inevitably affected the Electoral Commission's operations.
They help explain why Commissioners later found themselves communicating through encrypted messaging and meeting outside their own offices.
The Commission of Inquiry became inevitable
Perhaps the strongest defence of the Commission of Inquiry comes from Dr Atu Emberson-Bain's affidavit itself.
Her evidence directly disputes assertions made by Barbara Malimali; Acting Supervisor Ana Mataiciwa; Alexandra Forwood; other witnesses concerning the appointment process; differing interpretations of the Electoral Act; and the handling of complaints involving Members of Parliament.
The affidavit illustrates the existence of multiple competing sworn versions of the same events.
That is precisely the circumstance in which an independent Commission of Inquiry becomes constitutionally appropriate.
Without such an inquiry, Fiji would have been left with competing public allegations and no independent mechanism to examine the evidence.
The Fiji Elections Office should not become a scapegoat
None of this requires portraying the Fiji Elections Office as acting in bad faith.
The FEO continued discharging statutory responsibilities while operating under exceptional pressure arising from constitutional disputes, criminal investigations and intense public scrutiny.
Nor should cooperation between FEO officials and FICAC investigators automatically be characterised as improper. Public officials generally have legal obligations to cooperate with lawful criminal investigations.
The institutional conflict was considerably more complex than simplistic narratives suggest.
The Commission exposed existing weaknesses
Ironically, the very matters now cited by critics as evidence that the Commission of Inquiry was unnecessary actually demonstrate why it was indispensable. The Electoral Commission itself acknowledged that, during this turbulent period, it operated without a substantive chairperson after Barbara Malimali's departure, Commissioners were compelled to communicate through private Viber messages and convene meetings outside official premises, administrative support was severely disrupted, Commission records had been seized during criminal investigations, and public confidence in the institution had inevitably been undermined.
These were not conditions created by the Commission of Inquiry; they were the very circumstances that made an independent inquiry both necessary and unavoidable. Rather than manufacturing a constitutional crisis, the Commission of Inquiry exposed one that had already taken root within Fiji's electoral governance and brought it into the open for independent scrutiny.
The courts will determine the legal outcome
The High Court will ultimately determine whether the Commission of Inquiry acted lawfully and whether its findings should stand.
That judicial process should proceed free from political attempts either to glorify or discredit the inquiry before the Court has spoken.
The attempt to portray the Commission of Inquiry as an unnecessary burden on Fiji ignores the evidence now available.
Dr Atu Emberson-Bain's sworn affidavit reveals an Electoral Commission, chaired at the time by Barbara Malimali, already engaged in deep constitutional disagreements with the Acting Supervisor of Elections over statutory powers, consultation obligations, election complaints, confidentiality, institutional independence and administrative control months before Malimali became FICAC Commissioner.
Those disagreements were then overtaken by Malimali's appointment to head FICAC, the execution of search warrants, competing legal interpretations, allegations and counter-allegations, and growing public concern over the integrity of constitutional institutions.
The Prime Minister Sitiveni Rabuka did not create those problems by establishing the Commission of Inquiry.
He responded to them.
Whether every conclusion reached by the Commission ultimately survives judicial scrutiny is a matter for the High Court. But the existence of the inquiry itself was not evidence of governmental overreach.
It was a recognition that Fiji's constitutional institutions had entered territory where only an independent examination of the facts could restore public confidence.
Far from creating the crisis, the Commission of Inquiry exposed a constitutional conflict that had already been unfolding within Fiji's electoral governance for many months.
The available evidence, including the sworn affidavit of Electoral Commissioner Dr Atu Emberson-Bain, demonstrates that the institutional crisis predated the Commission of Inquiry by many months. The Commission did not manufacture the crisis; it was established because Fiji's constitutional institutions had already become embroiled in an unprecedented conflict.
The crisis began before the Commission of Inquiry
Critics argue that Prime Minister Sitiveni Rabuka was persuaded into establishing an unnecessary Commission of Inquiry in October 2024 after the Fiji Elections Office (FEO) and FICAC became embroiled in investigations involving the Electoral Commission.
The chronology tells a very different story.
Dr Atu Emberson-Bain's affidavit reveals that the relationship between the Electoral Commission, then chaired by Barbara Malimali, and Acting Supervisor of Elections Ana Mataiciwa had been steadily deteriorating throughout late 2023 and early 2024. The disagreements centred on constitutional responsibilities, consultation over the appointment of the substantive Supervisor of Elections, compliance with Electoral Commission directives, and the handling of election-related complaints.
These disputes existed long before Barbara Malimali resigned as Chair of the Electoral Commission to become FICAC Commissioner and months before the Prime Minister established the Commission of Inquiry.
The inquiry therefore cannot fairly be blamed for creating the institutional conflict.
It was convened because that conflict had already become impossible to ignore. Barbara Malimali's dual role explains the controversy. At the heart of the dispute lies an important constitutional fact often overlooked in public commentary.
Before becoming FICAC Commissioner, Barbara Malimali served as Chairperson of the Fiji Electoral Commission.
Dr Atu Emberson-Bain repeatedly refers in her affidavit to meetings chaired by Malimali, decisions taken under her leadership, and disputes between the Commission and the Acting Supervisor of Elections.
When Malimali later accepted appointment as FICAC Commissioner, she entered an office whose investigators were already examining matters involving the Electoral Commission she had only recently chaired.
Whether that situation created actual or perceived conflicts of interest was precisely one of the questions the Commission of Inquiry was established to investigate.
Constitutional disagreements, not politics
Contrary to suggestions that the dispute was merely political, Dr Atu Emberson-Bain's affidavit reveals a series of genuine constitutional disagreements.
She explains that the Electoral Commission believed the Constitutional Offices Commission had failed to comply with section 76(4) of the Constitution by properly consulting the Electoral Commission during the appointment of the substantive Supervisor of Elections. According to her evidence, the Electoral Commission considered the recruitment process fundamentally flawed and recommended that it be restarted.
Whether those concerns ultimately prove legally correct is for the courts to determine.
But they clearly demonstrate that constitutional issues, not partisan politics, lay at the heart of the dispute.
A dispute over constitutional authority
Dr Atu Emberson-Bain also sets out the Electoral Commission's understanding of its constitutional authority.
She relies on section 76 of the Constitution and relevant provisions of the Electoral Act, arguing that the Supervisor of Elections acts under the direction of the Electoral Commission and is legally obliged to comply with its lawful directives. She then identifies several instances in which she says those directives were not followed.
The then Acting Supervisor Ana Mataiciwa advanced a different legal interpretation.
That competing interpretation did not demonstrate institutional misconduct. It demonstrated the existence of a serious constitutional dispute requiring independent examination.
The Viber group was a consequence, not evidence of dysfunction
Recent commentary has portrayed the Electoral Commission's use of a private Viber group and meetings outside official premises as evidence of institutional incompetence.
Dr Atu Emberson-Bain's affidavit provides the missing context.
She explains that Commissioners established the private Viber group because of repeated leaks of confidential Electoral Commission information, concerns about security breaches and what they regarded as an increasingly hostile working environment. Meetings were subsequently moved outside the Fiji Elections Office for those same reasons.
Viewed in that context, the Viber group was not a symptom of administrative chaos.
It was an emergency measure adopted to preserve confidentiality after ordinary institutional arrangements had broken down.
The FICAC investigation disrupted Electoral Commission operations
Dr Atu Emberson-Bain also recounts the execution of FICAC's search warrant on Electoral Commission offices.
She describes the seizure of Commission files and equipment, the continuing retention of records, and the uncertainty that followed among Commissioners. She also recounts correspondence sent to the Judicial Services Commission expressing concern about the impact of the investigation on the Commission's constitutional functions.
Those events inevitably affected the Electoral Commission's operations.
They help explain why Commissioners later found themselves communicating through encrypted messaging and meeting outside their own offices.
The Commission of Inquiry became inevitable
Perhaps the strongest defence of the Commission of Inquiry comes from Dr Atu Emberson-Bain's affidavit itself.
Her evidence directly disputes assertions made by Barbara Malimali; Acting Supervisor Ana Mataiciwa; Alexandra Forwood; other witnesses concerning the appointment process; differing interpretations of the Electoral Act; and the handling of complaints involving Members of Parliament.
The affidavit illustrates the existence of multiple competing sworn versions of the same events.
That is precisely the circumstance in which an independent Commission of Inquiry becomes constitutionally appropriate.
Without such an inquiry, Fiji would have been left with competing public allegations and no independent mechanism to examine the evidence.
The Fiji Elections Office should not become a scapegoat
None of this requires portraying the Fiji Elections Office as acting in bad faith.
The FEO continued discharging statutory responsibilities while operating under exceptional pressure arising from constitutional disputes, criminal investigations and intense public scrutiny.
Nor should cooperation between FEO officials and FICAC investigators automatically be characterised as improper. Public officials generally have legal obligations to cooperate with lawful criminal investigations.
The institutional conflict was considerably more complex than simplistic narratives suggest.
The Commission exposed existing weaknesses
Ironically, the very matters now cited by critics as evidence that the Commission of Inquiry was unnecessary actually demonstrate why it was indispensable. The Electoral Commission itself acknowledged that, during this turbulent period, it operated without a substantive chairperson after Barbara Malimali's departure, Commissioners were compelled to communicate through private Viber messages and convene meetings outside official premises, administrative support was severely disrupted, Commission records had been seized during criminal investigations, and public confidence in the institution had inevitably been undermined.
These were not conditions created by the Commission of Inquiry; they were the very circumstances that made an independent inquiry both necessary and unavoidable. Rather than manufacturing a constitutional crisis, the Commission of Inquiry exposed one that had already taken root within Fiji's electoral governance and brought it into the open for independent scrutiny.
The courts will determine the legal outcome
The High Court will ultimately determine whether the Commission of Inquiry acted lawfully and whether its findings should stand.
That judicial process should proceed free from political attempts either to glorify or discredit the inquiry before the Court has spoken.
The attempt to portray the Commission of Inquiry as an unnecessary burden on Fiji ignores the evidence now available.
Dr Atu Emberson-Bain's sworn affidavit reveals an Electoral Commission, chaired at the time by Barbara Malimali, already engaged in deep constitutional disagreements with the Acting Supervisor of Elections over statutory powers, consultation obligations, election complaints, confidentiality, institutional independence and administrative control months before Malimali became FICAC Commissioner.
Those disagreements were then overtaken by Malimali's appointment to head FICAC, the execution of search warrants, competing legal interpretations, allegations and counter-allegations, and growing public concern over the integrity of constitutional institutions.
The Prime Minister Sitiveni Rabuka did not create those problems by establishing the Commission of Inquiry.
He responded to them.
Whether every conclusion reached by the Commission ultimately survives judicial scrutiny is a matter for the High Court. But the existence of the inquiry itself was not evidence of governmental overreach.
It was a recognition that Fiji's constitutional institutions had entered territory where only an independent examination of the facts could restore public confidence.
Far from creating the crisis, the Commission of Inquiry exposed a constitutional conflict that had already been unfolding within Fiji's electoral governance for many months.
From Fijileaks Archives
No Mandate, No Neutrality: Why Barbara Malimali's Succession Move Threatened Public Trust
When Barbara Malimali informed the Constitutional Offices Commission (CoC), "In the meantime, I recommend Dr Atu Emberson-Bain for the position of Acting Chair of the Commission," she crossed into constitutional territory where restraint was expected of every holder of high public office.
The issue was never whether Dr Atu Emberson-Bain possessed the experience or integrity to serve on the Electoral Commission. Nor is this analysis directed at her personally. Rather, the constitutional question was, and remains, whether Barbara Malimali possessed any legal authority to recommend who should become the Acting Chair of the Electoral Commission.
The answer was NO.
Under section 75 of Fiji's 2013 Constitution, the Chair and members of the Electoral Commission are appointed by the President acting on the advice of the Constitutional Offices Commission. The Constitution establishes an independent appointment process designed to safeguard the Electoral Commission from political influence and internal succession planning. It continues to require that appointments be made through that constitutional mechanism alone.
The Constitution also prescribes that the Chair must be a legal practitioner with at least fifteen years' post-admission experience. However, it does not confer upon an outgoing Chair any constitutional or statutory authority to nominate, designate or recommend an Acting Chair or successor.
That responsibility belonged then, and continues to belong, exclusively to the Constitutional Offices Commission, which advises the President on appointments.
Consequently, Malimali's recommendation carried no constitutional or legal effect. It amounted only to a personal recommendation. It neither bound nor directed the Constitutional Offices Commission in the exercise of its constitutional responsibilities.
The significance of the recommendation, however, lay not in its legal force but in its constitutional implications.
The Electoral Commission was established as one of Fiji's principal independent constitutional institutions. Its legitimacy depended, and continues to depend, not merely upon legal independence but also upon public confidence that appointments are made impartially and without favour, lobbying or internal succession planning.
By recommending a preferred successor, Malimali created an impression that was capable of undermining that confidence.
Whether or not the recommendation was made with the best of intentions is beside the point. Constitutional officeholders are expected not only to comply with the law but also to avoid conduct that may reasonably give rise to perceptions of influence over constitutional processes.
That principle remains fundamental today.
The constitutional appointment process exists precisely so that no outgoing officeholder can be seen as shaping the future leadership of an institution that is intended to function independently of individual personalities.
Public confidence is strengthened when appointments are determined exclusively by the constitutional authorities entrusted with making them, rather than by preferences expressed by those leaving office.
Good governance demanded restraint then, just as it does now.
The integrity of the Electoral Commission rests not only upon compliance with the letter of the Constitution but also upon adherence to its underlying constitutional values, independence, impartiality and institutional neutrality.
For that reason, succession to the Chair of the Electoral Commission should always be determined solely through the constitutional process established under section 75.
Any recommendation by an outgoing Chair, however well-intentioned, possesses no constitutional standing and risks creating the perception that the independence of the appointment process has been compromised.
Ultimately, this issue extends beyond Barbara Malimali or Dr Atu Emberson-Bain. It concerns the constitutional integrity of Fiji's electoral system itself. The Constitution entrusted appointments to the Constitutional Offices Commission and the President, not to departing officeholders. That principle governed the process then, and it continues to govern it today.
Public trust in constitutional institutions is preserved only when those who occupy high office recognise the limits of their authority and allow independent constitutional processes to operate free from actual influence and free from any reasonable perception of influence.
The issue was never whether Dr Atu Emberson-Bain possessed the experience or integrity to serve on the Electoral Commission. Nor is this analysis directed at her personally. Rather, the constitutional question was, and remains, whether Barbara Malimali possessed any legal authority to recommend who should become the Acting Chair of the Electoral Commission.
The answer was NO.
Under section 75 of Fiji's 2013 Constitution, the Chair and members of the Electoral Commission are appointed by the President acting on the advice of the Constitutional Offices Commission. The Constitution establishes an independent appointment process designed to safeguard the Electoral Commission from political influence and internal succession planning. It continues to require that appointments be made through that constitutional mechanism alone.
The Constitution also prescribes that the Chair must be a legal practitioner with at least fifteen years' post-admission experience. However, it does not confer upon an outgoing Chair any constitutional or statutory authority to nominate, designate or recommend an Acting Chair or successor.
That responsibility belonged then, and continues to belong, exclusively to the Constitutional Offices Commission, which advises the President on appointments.
Consequently, Malimali's recommendation carried no constitutional or legal effect. It amounted only to a personal recommendation. It neither bound nor directed the Constitutional Offices Commission in the exercise of its constitutional responsibilities.
The significance of the recommendation, however, lay not in its legal force but in its constitutional implications.
The Electoral Commission was established as one of Fiji's principal independent constitutional institutions. Its legitimacy depended, and continues to depend, not merely upon legal independence but also upon public confidence that appointments are made impartially and without favour, lobbying or internal succession planning.
By recommending a preferred successor, Malimali created an impression that was capable of undermining that confidence.
Whether or not the recommendation was made with the best of intentions is beside the point. Constitutional officeholders are expected not only to comply with the law but also to avoid conduct that may reasonably give rise to perceptions of influence over constitutional processes.
That principle remains fundamental today.
The constitutional appointment process exists precisely so that no outgoing officeholder can be seen as shaping the future leadership of an institution that is intended to function independently of individual personalities.
Public confidence is strengthened when appointments are determined exclusively by the constitutional authorities entrusted with making them, rather than by preferences expressed by those leaving office.
Good governance demanded restraint then, just as it does now.
The integrity of the Electoral Commission rests not only upon compliance with the letter of the Constitution but also upon adherence to its underlying constitutional values, independence, impartiality and institutional neutrality.
For that reason, succession to the Chair of the Electoral Commission should always be determined solely through the constitutional process established under section 75.
Any recommendation by an outgoing Chair, however well-intentioned, possesses no constitutional standing and risks creating the perception that the independence of the appointment process has been compromised.
Ultimately, this issue extends beyond Barbara Malimali or Dr Atu Emberson-Bain. It concerns the constitutional integrity of Fiji's electoral system itself. The Constitution entrusted appointments to the Constitutional Offices Commission and the President, not to departing officeholders. That principle governed the process then, and it continues to govern it today.
Public trust in constitutional institutions is preserved only when those who occupy high office recognise the limits of their authority and allow independent constitutional processes to operate free from actual influence and free from any reasonable perception of influence.
