 Ratu Sakiusa Tuisolia and Patricia Imrana Jalal  "Most of you have heard by now that Justice Priyantha Fernando of the Fiji High Court has “permanently stayed” the 7 Suva City Council charges against Saki and I, on the grounds of abuse of process, limitation of time etc." Patricia Imrana Jalal, 30 August 2010  |
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A Fijileaks Historical Perspective: Aca Rayawa’s recent call for Chief Justice Salesi Temo to direct court registries not to accept criminal charges filed by the Fiji Independent Commission Against Corruption has reopened an old constitutional question in Fiji’s public law: what happens when the legality of a public appointment is disputed?
Rayawa argues that if the appointment of the FICAC Commissioner is constitutionally defective, the authority exercised under that office is merely de facto rather than de jure. On that basis, he suggests that prosecutions initiated by the Commission should not proceed. In effect, he invites the judiciary to prevent the filing of such cases at the registry stage.
At first glance the argument may appear to rest on constitutional principle. Public power must derive from lawful authority. If an appointment is unlawful, scrutiny is inevitable. Yet the difficulty with Rayawa’s position lies not only in the doctrine he invokes but also in the historical circumstances in which he himself exercised prosecutorial authority.
For the legal system that once sustained his authority now stands squarely against the argument he advances.
Appointment in the Decree Era
Aca Rayawa was appointed Acting Director of Public Prosecutions on 31 December 2009 by the President, Ratu Epeli Nailatikau. The appointment occurred at a time when Fiji was no longer operating under the 1997 Constitution. Earlier that year the Constitution had been abrogated, and the country was being governed through a series of presidential promulgations and military-backed decrees following the political upheavals that followed the 2006 coup.
Under normal constitutional arrangements the Director of Public Prosecutions is appointed by the President on the recommendation of the Judicial Services Commission and must possess the qualifications required for appointment as a judge. These safeguards exist to ensure that prosecutorial authority remains independent of political influence.
The circumstances surrounding Rayawa’s appointment were markedly different. The constitutional framework governing such appointments was not functioning in its ordinary form. The legal order during that period rested upon executive authority exercised through the decree system that had replaced the earlier constitutional structure.
Despite that unusual setting, prosecutions continued to be brought before the courts. The legal system did not treat those prosecutions as void simply because the constitutional machinery of appointment had been disrupted. Instead, the courts relied upon established principles of public law to preserve the continuity of legal authority. Those principles would later prove decisive in relation to Rayawa himself.
Imrana Jalal, Ratu Sakiusa Tuisolia, and Roma's Hook & Chook Fish and Chips
Rayawa’s tenure as Acting Director of Public Prosecutions coincided with several prosecutions that became the subject of sustained public controversy. Among the most widely discussed were the proceedings involving former Airports Fiji Limited chief executive Sakiusa Tuisolia and his wife, the human rights lawyer Patricia Imrana Jalal.
The allegations concerned regulatory matters connected with a restaurant licence and municipal procedures. What might ordinarily have remained a local administrative dispute developed into extended criminal litigation pursued through several stages of the court system.
At the time Rayawa was not a peripheral participant in those proceedings. He was the Acting Director of Public Prosecutions, and the cases were initiated and pursued under the authority of his office.
The litigation lasted for years and generated widespread criticism within Fiji’s legal community. Jalal herself later wrote publicly about the personal toll of the prosecutions and the distress they caused to her family. The experience, she explained, involved prolonged legal pressure and reputational damage before the proceedings eventually collapsed in the High Court.
The episode became widely cited by critics as an example of the aggressive prosecutorial climate that characterised parts of the Bainimarama-Khaiyum decree era.
Yet during those years the state never argued that prosecutions should be halted because questions might exist about the constitutional pedigree of the prosecutorial authority under which they were brought. On the contrary, the machinery of prosecution continued to operate without interruption under the authority of the Acting DPP.
When Rayawa’s Own Authority Was Tested
The most direct judicial scrutiny of Rayawa’s authority came in the High Court decision in Chaudhry v State in 2014. In that case the defence argued that Rayawa lacked the statutory experience required to hold the office of Acting Director of Public Prosecutions and therefore had no authority to sanction criminal proceedings.
If the argument had succeeded, the prosecution would have collapsed.
Justice Madigan rejected the challenge. The court reaffirmed a central principle of public law: official acts are presumed to be valid unless and until they are set aside by a competent court in appropriate proceedings.
The judgment also relied on the de facto officer doctrine. Under this doctrine, a person who occupies public office and performs its functions with institutional recognition is treated as a lawful office-holder for the purpose of preserving the validity of official acts. Even if defects in appointment are alleged, acts performed while the officer occupies the position remain legally effective.
The doctrine exists for a practical reason. Without it, every prosecution, administrative decision, or judgment could become vulnerable to collapse whenever questions are raised about the legality of an appointment.
In the Chaudhry case the court concluded that Rayawa had at the very least acted as a de facto Acting Director of Public Prosecutions. His sanction of criminal charges therefore remained legally valid.
In other words, the legal system protected the authority under which Rayawa himself had acted.
The Present Aca Rayawa Argument
Rayawa now suggests that criminal proceedings should be halted because the appointment of the FICAC Commissioner may be constitutionally defective.
The difficulty with that reasoning is that it asks the courts to do precisely what they previously refused to do when Rayawa’s own authority was challenged.
The jurisprudence of the High Court is clear. Challenges to the legality of an appointment must be brought in the proper forum through judicial review or constitutional litigation. They cannot be used as collateral devices to derail criminal prosecutions.
Rayawa’s proposal goes further still. It suggests that court registries should refuse to accept charges filed by FICAC. That would effectively place the responsibility for deciding a constitutional question in the hands of administrative officers whose function is purely procedural.
Registries process filings. They do not adjudicate constitutional disputes.
To give them that role would fundamentally alter the functioning of the criminal justice system.
The Contradiction
The paradox is therefore difficult to avoid.
During the decree era Rayawa exercised prosecutorial authority within a legal system that relied heavily on the de facto officer doctrine in order to maintain continuity amid constitutional disruption. The courts preserved the validity of acts performed by those who occupied public office even when the circumstances of appointment were unusual.
Now the same figure argues that prosecutions should be halted because the appointment of a public official may be defective.
If that principle were applied consistently, it would have consequences reaching far beyond the present debate. A considerable portion of Fiji’s recent prosecutorial history, including cases authorised by Rayawa himself, might have been vulnerable to challenge at the moment they were filed.
That is precisely the scenario the courts have repeatedly sought to avoid.
The Lesson of Fiji’s Own Jurisprudence
None of this means that questions about the legality of appointments should be ignored. Constitutional accountability requires that such issues can be examined and, where necessary, corrected.
But the law draws a clear distinction between challenging an appointment and paralysing the justice system.
The first belongs in the courtroom.
The second belongs nowhere in a functioning legal order.
The doctrine that once preserved the authority of the Acting Director of Public Prosecutions during a period of constitutional uncertainty cannot easily be invoked to dismantle the authority of another office-holder today.
That is the difficulty at the heart of Aca Rayawa’s argument.
The legal principle that protected his prosecutions now stands firmly against the position he advances.
Rayawa argues that if the appointment of the FICAC Commissioner is constitutionally defective, the authority exercised under that office is merely de facto rather than de jure. On that basis, he suggests that prosecutions initiated by the Commission should not proceed. In effect, he invites the judiciary to prevent the filing of such cases at the registry stage.
At first glance the argument may appear to rest on constitutional principle. Public power must derive from lawful authority. If an appointment is unlawful, scrutiny is inevitable. Yet the difficulty with Rayawa’s position lies not only in the doctrine he invokes but also in the historical circumstances in which he himself exercised prosecutorial authority.
For the legal system that once sustained his authority now stands squarely against the argument he advances.
Appointment in the Decree Era
Aca Rayawa was appointed Acting Director of Public Prosecutions on 31 December 2009 by the President, Ratu Epeli Nailatikau. The appointment occurred at a time when Fiji was no longer operating under the 1997 Constitution. Earlier that year the Constitution had been abrogated, and the country was being governed through a series of presidential promulgations and military-backed decrees following the political upheavals that followed the 2006 coup.
Under normal constitutional arrangements the Director of Public Prosecutions is appointed by the President on the recommendation of the Judicial Services Commission and must possess the qualifications required for appointment as a judge. These safeguards exist to ensure that prosecutorial authority remains independent of political influence.
The circumstances surrounding Rayawa’s appointment were markedly different. The constitutional framework governing such appointments was not functioning in its ordinary form. The legal order during that period rested upon executive authority exercised through the decree system that had replaced the earlier constitutional structure.
Despite that unusual setting, prosecutions continued to be brought before the courts. The legal system did not treat those prosecutions as void simply because the constitutional machinery of appointment had been disrupted. Instead, the courts relied upon established principles of public law to preserve the continuity of legal authority. Those principles would later prove decisive in relation to Rayawa himself.
Imrana Jalal, Ratu Sakiusa Tuisolia, and Roma's Hook & Chook Fish and Chips
Rayawa’s tenure as Acting Director of Public Prosecutions coincided with several prosecutions that became the subject of sustained public controversy. Among the most widely discussed were the proceedings involving former Airports Fiji Limited chief executive Sakiusa Tuisolia and his wife, the human rights lawyer Patricia Imrana Jalal.
The allegations concerned regulatory matters connected with a restaurant licence and municipal procedures. What might ordinarily have remained a local administrative dispute developed into extended criminal litigation pursued through several stages of the court system.
At the time Rayawa was not a peripheral participant in those proceedings. He was the Acting Director of Public Prosecutions, and the cases were initiated and pursued under the authority of his office.
The litigation lasted for years and generated widespread criticism within Fiji’s legal community. Jalal herself later wrote publicly about the personal toll of the prosecutions and the distress they caused to her family. The experience, she explained, involved prolonged legal pressure and reputational damage before the proceedings eventually collapsed in the High Court.
The episode became widely cited by critics as an example of the aggressive prosecutorial climate that characterised parts of the Bainimarama-Khaiyum decree era.
Yet during those years the state never argued that prosecutions should be halted because questions might exist about the constitutional pedigree of the prosecutorial authority under which they were brought. On the contrary, the machinery of prosecution continued to operate without interruption under the authority of the Acting DPP.
When Rayawa’s Own Authority Was Tested
The most direct judicial scrutiny of Rayawa’s authority came in the High Court decision in Chaudhry v State in 2014. In that case the defence argued that Rayawa lacked the statutory experience required to hold the office of Acting Director of Public Prosecutions and therefore had no authority to sanction criminal proceedings.
If the argument had succeeded, the prosecution would have collapsed.
Justice Madigan rejected the challenge. The court reaffirmed a central principle of public law: official acts are presumed to be valid unless and until they are set aside by a competent court in appropriate proceedings.
The judgment also relied on the de facto officer doctrine. Under this doctrine, a person who occupies public office and performs its functions with institutional recognition is treated as a lawful office-holder for the purpose of preserving the validity of official acts. Even if defects in appointment are alleged, acts performed while the officer occupies the position remain legally effective.
The doctrine exists for a practical reason. Without it, every prosecution, administrative decision, or judgment could become vulnerable to collapse whenever questions are raised about the legality of an appointment.
In the Chaudhry case the court concluded that Rayawa had at the very least acted as a de facto Acting Director of Public Prosecutions. His sanction of criminal charges therefore remained legally valid.
In other words, the legal system protected the authority under which Rayawa himself had acted.
The Present Aca Rayawa Argument
Rayawa now suggests that criminal proceedings should be halted because the appointment of the FICAC Commissioner may be constitutionally defective.
The difficulty with that reasoning is that it asks the courts to do precisely what they previously refused to do when Rayawa’s own authority was challenged.
The jurisprudence of the High Court is clear. Challenges to the legality of an appointment must be brought in the proper forum through judicial review or constitutional litigation. They cannot be used as collateral devices to derail criminal prosecutions.
Rayawa’s proposal goes further still. It suggests that court registries should refuse to accept charges filed by FICAC. That would effectively place the responsibility for deciding a constitutional question in the hands of administrative officers whose function is purely procedural.
Registries process filings. They do not adjudicate constitutional disputes.
To give them that role would fundamentally alter the functioning of the criminal justice system.
The Contradiction
The paradox is therefore difficult to avoid.
During the decree era Rayawa exercised prosecutorial authority within a legal system that relied heavily on the de facto officer doctrine in order to maintain continuity amid constitutional disruption. The courts preserved the validity of acts performed by those who occupied public office even when the circumstances of appointment were unusual.
Now the same figure argues that prosecutions should be halted because the appointment of a public official may be defective.
If that principle were applied consistently, it would have consequences reaching far beyond the present debate. A considerable portion of Fiji’s recent prosecutorial history, including cases authorised by Rayawa himself, might have been vulnerable to challenge at the moment they were filed.
That is precisely the scenario the courts have repeatedly sought to avoid.
The Lesson of Fiji’s Own Jurisprudence
None of this means that questions about the legality of appointments should be ignored. Constitutional accountability requires that such issues can be examined and, where necessary, corrected.
But the law draws a clear distinction between challenging an appointment and paralysing the justice system.
The first belongs in the courtroom.
The second belongs nowhere in a functioning legal order.
The doctrine that once preserved the authority of the Acting Director of Public Prosecutions during a period of constitutional uncertainty cannot easily be invoked to dismantle the authority of another office-holder today.
That is the difficulty at the heart of Aca Rayawa’s argument.
The legal principle that protected his prosecutions now stands firmly against the position he advances.
"Once, Major Ana Rokomoti (then Chief Registrar, now removed by her own military masters) made me wait 7 hours in the lobby for my passporte to be released. Even after the Judge allowed me to travel, I still had to go back several times a day to attempt to collect my passport. It became a game, on the part of the regime, to make me wait as long as possible." - Jalal, 2010
*In August 2024, Rokomokoti applied for the position of FICAC Commissioner but the JSC controversially selected Barbara Malimali.
*On 12th March 2010, the Acting Director Public Prosecutions Aaca Rayawa filed information against Sakiusa Tuisolia and Patricia Imrana Jalal. Originally Fiji Independent Commission Against Corruption (FICAC) instituted actions separately against the two Applicants and later conduct of the prosecution was transferred to Director of Public Prosecutions. Thereafter the two cases filed separately against Ratu Sakiusa Tuisolia and Patricia Imrana Jalal were amalgamated.
FIRST COUNT
Statement of Offence
- OPERATING A RESTAURANT WITHOUT A RESTAURANT LICENCE: Contrary to Section 4(1) and 16 of Public Health (Hotels, Restaurant and Refreshment Bars) (Suva) Regulations, Cap. 111.
SAKIUSA TUISOLIA and IMRANA JALAL between the 11th day of July 2008 continuously to the 29th day of July 2008 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without a Restaurant License.
SECOND COUNT
Statement of Offence
- FAILING TO DISPLAY REGULATIONS AND RESTAURANT LICENCE IN A PROMINENT PLACE: Contrary to Section 14(1);13(1) and 16 of Public Health (Hotels, Restaurant and Refreshment Bars) (Suva) Regulations, Cap. 111.
SAKIUSA TUISOLIA and IMRANA JALAL between the 11th day of July 2008 continuously to the 29th day of July 2008 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without displaying the relevant Regulations and Restaurant License at a prominent place within the said premises.
THIRD COUNT
Statement of Offence
- DISOBEDIENCE OF LAWFUL ORDERS: Contrary to Section 144 of the Penal Code Cap. 17.
SAKIUSA TUISOLIA and IMRANA JALAL between the 29th day of August at Suva in the Central Division continued the conducted of a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva in direct disobedience of a lawful order issued on the 29th day of July 2008 by the Health Inspector of the Suva City Council under the Public Health Act Cap 111 ordering the cessation of the illegal operation of the said restaurant.
FOURTH COUNT
Statement of Offence
- OPERATING A RESTAURANT WITHOUT A RESTAURANT LICENCE: Contrary to Section 4(1) and 16 of Public Health (Hotels, Restaurant and Refreshment Bars) (Suva) Regulations, Cap. 111.
SAKIUSA TUISOLIA and IMRANA JALAL between the 5th day of February 2009 continuously to the 4th day of June 2009 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without a Restaurant Licence.
FIFTH COUNT
Statement of Offence
- FAILING TO DISPLAY REGULATIONS AND RESTAURANT LICENCE IN A PROMINENT PLACE: Contrary to Section 14(1); 13(1) and 16 of Public Health (Hotels, Restaurant and Refreshment Bars) (Suva) Regulations, Cap. 111.
SAKIUSA TUISOLIA and IMRANA JALAL between the 5th day of February 2009 to the 4th day of June 2009 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without displaying the relevant Regulations and Restaurant Licence at a prominent place within the said premises.
SIXTH COUNT
Statement of Offence
- OPERATING A FOOD ESTABLISHMENT WITHOUT A LICENCE: Contrary to Section 16(1) (2) and Schedule 2 of the Food Safety Act of 2003.
SAKIUSA TUISOLIA and IMRANA JALAL between the 5th day of June 2009 continuously to the 29th day of August 2009 at Suva in the Central Division operated a food establishment, namely ROMA’S HOOK AND CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without a Licence.
SEVENTH COUNT
Statement of Offence
- DISOBEDIENCE OF LAWFUL ORDERS: Contrary to Section 144 of the Penal Code Cap. 17.
SAKIUSA TUISOLIA and IMRANA JALAL on the 11th day of August 2009 at Suva in the Central Division continued the conduct of a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva in direct disobedience of a lawful order issued on the 5th day of August 1009 by the Health Inspector of the Suva City Council ordering the cessation of the illegal operation of the said restaurant.
EIGHTH COUNT
Statement of Offence
- GIVING FALSE INFORMATION TO A PUBLIC OFFICER: Contrary to Section 143 of the Penal Code Cap. 17.
SAKIUSA TUISOLIA on the 5th day of August 2009 at Suva in the Central Division gave false information to the Health Inspector of the Suva City Council that he would comply with the Public Health Regulations that he has not complied with since the 11th of July 2008, in order to avoid being prosecuted by the Health Inspector, but instead sold off the illegal business operation situated at shop 11, Victoria Corner, Gordon Street, Suva namely HOOK & CHOOK FISH AND CHIPS to one Richard Chow of Freshet International.
[2] This application has been made by the two applicants urging court that the charges laid against the Applicants be dismissed or permanently stayed upon the following grounds.
(a) The charges were statute barred pursuant to Section 219 of the Criminal Procedure Code at the time the charges were filed,
(b) The Prosecution was wrongly instituted in the name of FICAC and subsequently taken over by the Director of Public Prosecutions in its own name,
(c) That the charges if validly laid within time ought to have been prosecuted by the Local Authority in the Magistrate’s Court,
(d) The charges are contrary to Section 131 and 132 of the Public Health Act,
(e) The charges were laid contrary to Section 33(3) of the Food and Safety Act 2003,
(f) The charges have been brought contrary to Section 65(1) of the Food and Safety Act 2003,
(g) The charges against Ms. Jalal are brought contrary to Section 134 of the Public Health Act,
(h) The charges under Section 144 of the Penal Code are defective and statute barred, and
(i) Continued prosecution of the charges would be an abuse of process.
[3] The court carefully considered the submissions made by counsel on behalf of both parties.
In view of the above reasoning charges in counts 1,2,3,5,6 and 7 are foredoomed to fail and intended proceedings in respect of these counts constitute an abuse of process, as complained by the applicants.
[60] In conclusion, I make order permanently staying proceedings in relation to counts 1,2,3,5,6,and 7 of the information.
[61] Prosecution may proceed with count 4 against both applicants and with count 8 against the 1st applicant.
[62] I make no order as to costs.
Priyantha Fernando
Puisne Judge.
At Suva
19th July 2010.
*On 30 July 2010, Justice Fernado threw out Count 4 and Count 8 against the couple but allowed Count One to proceed against Tuisolia. In the end, all charges fell by the wayside. In October 2010, Rayawa was no longer Acting DPP or with DPP's office. The couple had to rebuild their lives.
The charge of giving false information to a public officer has been dropped against former Airports Fiji Limited CEO Sakiusa Tuisolia.
This morning, DPP lawyer Seini Puamau formally filed the papers stating that there was insufficient evidence against Tuisolia.
The DPP had filed a verbal nolle prosequi on Wednesday and formalised it today.
Tuisolia and his wife Imrama Jalal had been charged with 8 counts relating to their business licence and Health Safety Act related charges and one of disobeying a public official.
However, while his wife had her charges dismissed by the Suva High Court, Tuisolia had to answer to the one count of disobeying a public officer.
Tuisolia was accused of not following the orders of health inspectors with regards to their business known as Roma's Hook and Chook, which he and his wife Imrana Jalal operated as co directors.
This morning, DPP lawyer Seini Puamau formally filed the papers stating that there was insufficient evidence against Tuisolia.
The DPP had filed a verbal nolle prosequi on Wednesday and formalised it today.
Tuisolia and his wife Imrama Jalal had been charged with 8 counts relating to their business licence and Health Safety Act related charges and one of disobeying a public official.
However, while his wife had her charges dismissed by the Suva High Court, Tuisolia had to answer to the one count of disobeying a public officer.
Tuisolia was accused of not following the orders of health inspectors with regards to their business known as Roma's Hook and Chook, which he and his wife Imrana Jalal operated as co directors.
