| Fijileaks has reviewed both the audio recording and the transcript of the meeting held at FICAC headquarters on 5 September 2024 in relation to the release of Barbara Malimali following her arrest. Having considered these materials, we take the view that any current or prospective proceedings before the Fiji High Court concerning the Commission of Inquiry report should not operate to delay, compromise, or pre-empt the continuation of lawful police investigations arising from the events of that day. |  |
Matters of potential criminal responsibility fall within the statutory mandate of the Fiji Police Force and must be addressed independently and in accordance with due process. The existence of parallel legal challenges does not, of itself, negate the public interest in a full and proper police inquiry.
There is a dangerous idea quietly circulating in Fiji’s public discourse and on social media that once a witness, participant or an individual has raised allegations before a Commission of Inquiry, they are somehow spent, morally, legally, or procedurally barred from ever taking the same facts to the police, to FICAC, or to prosecutors.
That idea is wrong in law, wrong in principle, and corrosive to accountability. A Commission of Inquiry is not a courtroom. It is not a trial. It does not convict, acquit, or immunise anyone. And it does not silence the very citizens it calls upon to speak.
If Fiji allows the fiction to take hold that “you already said that at the COI, therefore you can’t complain again,” then Commissions of Inquiry will become what authoritarian systems quietly hope they are: pressure-release valves that absorb dissent and neutralise consequences.
A Commission of Inquiry Does Not Exhaust Criminal Accountability
Under Fiji law, and under every common law system, a Commission of Inquiry is inquisitorial and advisory, not determinative. Its function is to inquire, gather facts, and make recommendations. It does not apply criminal standards of proof. It does not determine guilt. It does not issue charges.
That is the exclusive domain of the Fiji Police, FICAC and the Office of the DPP.
Anyone who gives evidence to a Commission of Inquiry is participating in a fact-finding exercise, often at the invitation, or compulsion, of the COI. That participation does not cancel the right, or civic duty, to later report suspected crimes to criminal authorities.
There is no double jeopardy here. There is no res judicata. There is no legal doctrine that says that once a COI has heard you, the criminal law is closed.
Findings or Silence Do Not Bind Prosecutors
Equally important is what a Commission of Inquiry cannot do. It cannot bind the police.
It cannot bind FICAC. It cannot bind the DPP.
Even where a COI makes findings adverse to a complainant, or declines to make findings at all, those conclusions do not foreclose criminal investigation. Criminal authorities are entitled, and obliged, to apply their own statutory tests, consider their own evidence, and act on their own discretion.
This is especially critical in Fiji, where COIs have often been constrained by:
Why Re-Complaining Is Often Necessary, Not Abusive
In many cases, a subsequent complaint is not repetition. It is completion. Often, new documents surface after a COI concludes, witnesses only come forward later, financial or corporate records were never subpoenaed, or the COI deliberately avoided criminal findings.
In other cases, complainants only later appreciate that the facts they disclosed amount to specific statutory offences, not just ethical or administrative failures.
If Fijians were barred from acting on that realisation, accountability would depend entirely on the political will of whoever drafted the COI’s terms of reference. That is not justice; that is containment.
The Real Risk: Turning COIs into Accountability Graveyards
The most troubling implication of the “you already complained” argument is this: it turns Commissions of Inquiry into dead ends. Under that logic, the State could:
That is not transparency. It is procedural exhaustion by design.
In a small society like Fiji, where power is concentrated and whistleblowers already face real risks, such a doctrine would be chilling. It would reward silence, punish persistence, and protect impunity.
There Are Limits but They Are Narrow
This is not to say that anything goes. Authorities are entitled to decline complaints that are vexatious, malicious, purely repetitive without evidence, or clearly intended to harass.
But that is a high threshold, and it is applied case by case. It is not triggered simply because a Commission of Inquiry once heard similar facts.
Nor does the law require complainants to pretend the COI never happened. On the contrary, the responsible course is to disclose it openly, explain why criminal scrutiny remains necessary, and frame allegations in clear legal terms.
Basically, a Commission of Inquiry is not a gag order. It is not a plea bargain. It is not an amnesty. Citizens and non-citizens do not surrender their right to seek criminal accountability when they participate in one.
If Fiji is serious about integrity, then it must reject the lazy, and dangerous, idea that truth spoken once cannot be spoken again. Accountability is not duplication. It is persistence.
And in a country still reckoning with its constitutional and institutional past, persistence is not a nuisance. It is a necessity.
That idea is wrong in law, wrong in principle, and corrosive to accountability. A Commission of Inquiry is not a courtroom. It is not a trial. It does not convict, acquit, or immunise anyone. And it does not silence the very citizens it calls upon to speak.
If Fiji allows the fiction to take hold that “you already said that at the COI, therefore you can’t complain again,” then Commissions of Inquiry will become what authoritarian systems quietly hope they are: pressure-release valves that absorb dissent and neutralise consequences.
A Commission of Inquiry Does Not Exhaust Criminal Accountability
Under Fiji law, and under every common law system, a Commission of Inquiry is inquisitorial and advisory, not determinative. Its function is to inquire, gather facts, and make recommendations. It does not apply criminal standards of proof. It does not determine guilt. It does not issue charges.
That is the exclusive domain of the Fiji Police, FICAC and the Office of the DPP.
Anyone who gives evidence to a Commission of Inquiry is participating in a fact-finding exercise, often at the invitation, or compulsion, of the COI. That participation does not cancel the right, or civic duty, to later report suspected crimes to criminal authorities.
There is no double jeopardy here. There is no res judicata. There is no legal doctrine that says that once a COI has heard you, the criminal law is closed.
Findings or Silence Do Not Bind Prosecutors
Equally important is what a Commission of Inquiry cannot do. It cannot bind the police.
It cannot bind FICAC. It cannot bind the DPP.
Even where a COI makes findings adverse to a complainant, or declines to make findings at all, those conclusions do not foreclose criminal investigation. Criminal authorities are entitled, and obliged, to apply their own statutory tests, consider their own evidence, and act on their own discretion.
This is especially critical in Fiji, where COIs have often been constrained by:
- narrow terms of reference,
- limited forensic capacity,
- political sensitivities, or
- an explicit focus on governance or policy rather than criminal liability.
Why Re-Complaining Is Often Necessary, Not Abusive
In many cases, a subsequent complaint is not repetition. It is completion. Often, new documents surface after a COI concludes, witnesses only come forward later, financial or corporate records were never subpoenaed, or the COI deliberately avoided criminal findings.
In other cases, complainants only later appreciate that the facts they disclosed amount to specific statutory offences, not just ethical or administrative failures.
If Fijians were barred from acting on that realisation, accountability would depend entirely on the political will of whoever drafted the COI’s terms of reference. That is not justice; that is containment.
The Real Risk: Turning COIs into Accountability Graveyards
The most troubling implication of the “you already complained” argument is this: it turns Commissions of Inquiry into dead ends. Under that logic, the State could:
- Call a Commission of Inquiry,
- Invite or compel citizens to testify,
- Issue a report, and
- Quietly ensure that no criminal consequences ever follow, while telling complainants they have already “had their say.”
That is not transparency. It is procedural exhaustion by design.
In a small society like Fiji, where power is concentrated and whistleblowers already face real risks, such a doctrine would be chilling. It would reward silence, punish persistence, and protect impunity.
There Are Limits but They Are Narrow
This is not to say that anything goes. Authorities are entitled to decline complaints that are vexatious, malicious, purely repetitive without evidence, or clearly intended to harass.
But that is a high threshold, and it is applied case by case. It is not triggered simply because a Commission of Inquiry once heard similar facts.
Nor does the law require complainants to pretend the COI never happened. On the contrary, the responsible course is to disclose it openly, explain why criminal scrutiny remains necessary, and frame allegations in clear legal terms.
Basically, a Commission of Inquiry is not a gag order. It is not a plea bargain. It is not an amnesty. Citizens and non-citizens do not surrender their right to seek criminal accountability when they participate in one.
If Fiji is serious about integrity, then it must reject the lazy, and dangerous, idea that truth spoken once cannot be spoken again. Accountability is not duplication. It is persistence.
And in a country still reckoning with its constitutional and institutional past, persistence is not a nuisance. It is a necessity.
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