"As one of the complainants whose corruption file against the NFP leader, former Deputy Prime Minister and Finance Minister BIMAN PRASAD, was closed under Barbara Malimali's watch, a file that has since produced charges and reopened investigations, we remain legally, factually, and institutionally in the driving seat when it comes to objecting to her possible reinstatement, regardless of how enthusiastically Tanya Waqanika presses the accelerator."
*The Fiji High Court ruled on the mechanic. It did not hand over the keys or silence the complainants. |  |
Calls to “get the car back on the road” following the Fiji High Court ruling on the unlawful dismissal of Barbara Malimali may sound like common sense advocacy, but they misstate the legal terrain entirely. The court ruled that Malimali's removal from office was unalwful. It did not rule on what she did while in office, it did not validate the decisions she made, and it certainly did not extinguish the legal standing of complainants affected by those decisions.
As one of the complainants whose corruption file against Biman Chand Prasad was closed during Malimali’s tenure as FICAC Commissioner, I remain directly and materially affected by her exercise of public power. That status does not evaporate simply because a court later finds that her removal was procedurally unlawful.
What the court decided, and what it did not
The High Court decision by Justice Dane Tuiqereqere addressed a narrow constitutional question: whether the executive acted lawfully in removing Malimali without the proper involvement of the Judicial Services Commission. That judgment has been endorsed by Fijileaks. However, the High Court did not examine the integrity of the investigations she oversaw, the rationality of the file closures she authorised, or the consequences of those decisions for complainants and the public interest.
Critically, the ruling did not order her automatic reinstatement. Reinstatement, if it occurs at all, is a fresh constitutional act that must be assessed independently, with regard to fitness, propriety, apprehended bias, and public confidence in FICAC as an integrity institution.
Why complainant standing survives the ruling
Public law has long recognised that while no individual has a 'right to prosecution', a complainant does have a right to lawful, rational, and unbiased decision-making. The closure of a corruption file is not a neutral act; it is a legal decision with real consequences. Where a complainant is directly affected by that decision, standing follows.
That standing is not cancelled by a subsequent employment or constitutional dispute between the office-holder and the State. The court’s ruling resolved Malimali’s dispute with the executive. It did not resolve, or even touch, the position of complainants.
The inconvenient fact Waqanika skips over
There is a further problem with the “just put the car back on the road” argument advanced publicly by Tanya Waqanika: it ignores what happened after Malimali left office.
Despite the earlier closure of the files, a subsequent review of the complaints relating to Prasad identified evidence. One of those files has now resulted in criminal charges being laid. Other files are under active review and reportedly contain evidence of additional serious electoral-related offences, including alleged breaches of declaration and disclosure laws.
That sequence of events matters. It establishes that the complaints were not speculative or political. It demonstrates that the earlier closures were not determinative of the merits. And it squarely reinforces the legitimacy, and continuity, of complainant standing.
Apprehended bias is not cured by a court win
Even if Malimali was unlawfully removed, a reasonable and informed observer would still legitimately ask whether it is appropriate to reinstate a commissioner who personally closed files that later produced charges and reopened investigations against a senior political office-holder.
That is not a personal attack. It is a classic case of apprehended bias, an objective standard that survives judicial vindication on unrelated procedural grounds. Integrity institutions live or die on public confidence. Reinstating a former decision-maker in these circumstances risks corroding that confidence, particularly for complainants who must trust that their allegations will be assessed impartially.
Waqanika can keep invoking the car metaphor. But the law is less poetic and far less forgiving. The court fixed a procedural defect in Malimali’s removal; it did not wipe the slate clean, it did not validate her past decisions, and it did not eject complainants from the legal landscape.
One of the files she closed has already driven itself into court. Others are back under review for serious electoral related statutory offences. That is not a vehicle idling in a garage. It is the law catching up with substance. And it leaves the complainant, court ruling or not, very much legally in the driving seat. Reinstating the former driver does not erase the road already travelled, the skid marks left behind, or the evidence now on the record, and BIMAN PRASAD before the court. Her 'driving licence' has serious legal question marks. She cannot, and must not, be allowed to 'drive' back to FICAC.
As one of the complainants whose corruption file against Biman Chand Prasad was closed during Malimali’s tenure as FICAC Commissioner, I remain directly and materially affected by her exercise of public power. That status does not evaporate simply because a court later finds that her removal was procedurally unlawful.
What the court decided, and what it did not
The High Court decision by Justice Dane Tuiqereqere addressed a narrow constitutional question: whether the executive acted lawfully in removing Malimali without the proper involvement of the Judicial Services Commission. That judgment has been endorsed by Fijileaks. However, the High Court did not examine the integrity of the investigations she oversaw, the rationality of the file closures she authorised, or the consequences of those decisions for complainants and the public interest.
Critically, the ruling did not order her automatic reinstatement. Reinstatement, if it occurs at all, is a fresh constitutional act that must be assessed independently, with regard to fitness, propriety, apprehended bias, and public confidence in FICAC as an integrity institution.
Why complainant standing survives the ruling
Public law has long recognised that while no individual has a 'right to prosecution', a complainant does have a right to lawful, rational, and unbiased decision-making. The closure of a corruption file is not a neutral act; it is a legal decision with real consequences. Where a complainant is directly affected by that decision, standing follows.
That standing is not cancelled by a subsequent employment or constitutional dispute between the office-holder and the State. The court’s ruling resolved Malimali’s dispute with the executive. It did not resolve, or even touch, the position of complainants.
The inconvenient fact Waqanika skips over
There is a further problem with the “just put the car back on the road” argument advanced publicly by Tanya Waqanika: it ignores what happened after Malimali left office.
Despite the earlier closure of the files, a subsequent review of the complaints relating to Prasad identified evidence. One of those files has now resulted in criminal charges being laid. Other files are under active review and reportedly contain evidence of additional serious electoral-related offences, including alleged breaches of declaration and disclosure laws.
That sequence of events matters. It establishes that the complaints were not speculative or political. It demonstrates that the earlier closures were not determinative of the merits. And it squarely reinforces the legitimacy, and continuity, of complainant standing.
Apprehended bias is not cured by a court win
Even if Malimali was unlawfully removed, a reasonable and informed observer would still legitimately ask whether it is appropriate to reinstate a commissioner who personally closed files that later produced charges and reopened investigations against a senior political office-holder.
That is not a personal attack. It is a classic case of apprehended bias, an objective standard that survives judicial vindication on unrelated procedural grounds. Integrity institutions live or die on public confidence. Reinstating a former decision-maker in these circumstances risks corroding that confidence, particularly for complainants who must trust that their allegations will be assessed impartially.
Waqanika can keep invoking the car metaphor. But the law is less poetic and far less forgiving. The court fixed a procedural defect in Malimali’s removal; it did not wipe the slate clean, it did not validate her past decisions, and it did not eject complainants from the legal landscape.
One of the files she closed has already driven itself into court. Others are back under review for serious electoral related statutory offences. That is not a vehicle idling in a garage. It is the law catching up with substance. And it leaves the complainant, court ruling or not, very much legally in the driving seat. Reinstating the former driver does not erase the road already travelled, the skid marks left behind, or the evidence now on the record, and BIMAN PRASAD before the court. Her 'driving licence' has serious legal question marks. She cannot, and must not, be allowed to 'drive' back to FICAC.
  It was revealed that on or about 30th December 2015, in Suva, Prasad, as an officeholder of the registered National Federation Party under the Political Parties (Registration, Conduct, Funding and Disclosures) Act 2013, allegedly failed to comply with Section 24(1) (b) (iv) by omitting to declare his directorship in Platinum Hotels & Resorts Pte Limited in his annual declaration of assets, liabilities, and income submitted to the Registrar of Political Parties. He is also charged with providing false information in a statutory declaration, having allegedly recklessly submitted a declaration omitting his directorship, which rendered it materially false. |   |
PAPER Trail from Lotus (Fiji) lawyers in Sydney Exposes Biman Prasad's Hidden Directorship. He had not revealed it in his declarations
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