"Premila Kumar committed no obvious crime by reminding Fiji that the COI had served a public purpose and had raised questions which went directly to the conduct of powerful office-holders, including the Chief Justice himself." Fijileaks
"There is a revealing continuity between Rayawa’s present position and his earlier interventions. As Fijileaks previously demonstrated, Rayawa urged Chief Justice Temo to direct court registries not to accept prosecutions associated with Acting FICAC Commissioner Lavi Rokoika. That proposal overstated the Chief Justice’s administrative power and ignored the de facto officer doctrine, the very doctrine that once preserved prosecutorial acts signed by Rayawa when his own appointment as Acting DPP was challenged.
Now Rayawa again attributes sweeping authority to the Chief Justice: first, the power to block an entire class of prosecutions administratively; and secondly, an apparently unlimited entitlement to criticise anyone while those responding may face criminal prosecution. Both propositions treat the office of Chief Justice as though it stands above ordinary constitutional restraints.
It does NOT."
 |   |
Criticism Is Not Contempt: Why Aca Rayawa Is Wrong to Threaten Premila Kumar with the Crimes Act for Questioning Chief Justice Salesi Temo
Former Acting Director of Public Prosecutions Aca Rayawa has once again turned to Facebook to advance a sweeping interpretation of the law. This time, his target is Opposition MP Premila Kumar, whose apparent offence was to question whether Chief Justice Salesi Temo was correct to describe expenditure on the Commission of Inquiry into Barbara Malimali’s appointment as FICAC Commissioner as “money wasted”.
Rayawa relies upon section 194(1)(m) of the Crimes Act 2009. He asserts that Kumar is “clearly in breach” because the Chief Justice made his comments during a ceremony at which new lawyers were admitted to the Bar. According to Rayawa, that ceremony constituted a judicial proceeding; Kumar’s subsequent criticism therefore amounted to intentional disrespect towards the person conducting it.
He adds, with characteristic certainty, that there is “no exception” to the statutory prohibition. Chief Justice Temo, Rayawa claims, could criticise a lower-ranking judge or “anyone or anything whatsoever” because he is Fiji’s highest judicial officer and is protected by judicial immunity.
Kumar, by contrast, was not speaking within Parliament and therefore supposedly exposed herself to criminal prosecution.
This analysis is legally strained, constitutionally troubling and institutionally dangerous.
Rayawa is entitled to defend the Chief Justice. He is entitled to disagree with Kumar. What he is not entitled to do is transform a contestable political and legal opinion into a declaration of criminal guilt merely by quoting one paragraph of the Crimes Act while ignoring its elements, statutory context and constitutional setting.
What Chief Justice Temo actually said during admission to Bar ceremony
The Chief Justice made his comments during an admission-to-the-Bar ceremony at the Grand Pacific Hotel in Suva. He was addressing newly admitted practitioners about the professional responsibility of lawyers to identify the legal limits of their clients’ powers.
Temo referred to Justice Dane Tuiqereqere’s High Court judgment concerning the COI. The President had purported to extend the Commission beyond its original period, but the High Court subsequently held that the relevant legislation did not confer the necessary power of extension.
The Chief Justice criticised the legal advice behind that decision: “Lawyers were hired from overseas and they didn’t read the COI Act properly to show that His Excellency the President doesn’t have the power to extend it.” He continued: “As a result, all the work that they did later was pronounced ultra vires and null and void.” Temo then asked: “What was the loss? Money wasted.”
Read in its full context, Temo’s criticism was directed principally at the legal advice concerning the attempted extension and at the expenditure incurred after the Commission’s lawful authority had allegedly expired. It was not necessarily a carefully reasoned declaration that every dollar spent from the Commission’s establishment was wasted.
Nevertheless, “money wasted” was a broad and politically potent formulation. It inevitably invited public scrutiny, particularly because Justice Tuiqereqere did not find that the subject of the inquiry was pointless.
The High Court found grave legal and procedural defects: the ineffective extension, apparent bias, irrational findings and breaches of natural justice. The report and adverse findings were quashed. But the judge also found that the inquiry had exposed legitimate concerns surrounding Malimali’s appointment, including the active criminal investigation and the Tuvalu incident.
The Commission’s eventual report was legally unsustainable. That does not mean that the questions it investigated were imaginary, that the evidence it uncovered was worthless, or that its entire public-interest purpose vanished retrospectively.
Premilla Kumar did not, on the published material, threaten the Chief Justice, abuse him, interfere with the admission of any lawyer or disrupt the ceremony.
She questioned whether Temo’s description was appropriate. She reportedly argued that the “money wasted” remark risked overshadowing the substantial public-interest questions exposed by the inquiry, including why Malimali was appointed while an active criminal investigation involving her remained unresolved.
Kumar’s intervention may be criticised as political. Her interpretation of the judgment may be disputed. But that is the nature of democratic debate.
The issue is not whether Kumar’s analysis was unquestionably correct. The issue is whether her criticism constituted a criminal act of intentional disrespect carrying a possible sentence of imprisonment.
Rayawa simply assumes that it did.
What section 194(1)(m) actually says. Section 194(1)(m) of the Crimes Act provides that a person commits a summary offence if he or she, “commits any other act of intentional disrespect to any judicial proceeding, or to any person before whom such proceeding is being had or taken.” The prescribed maximum penalty is three months’ imprisonment.
Those words do not create a general offence of disagreeing with a judge. They require proof of several distinct matters:
Rayawa cites the provision as though the words “intentional disrespect” are self-defining and encompass every subsequent criticism of anything uttered by a judicial officer during a court-related ceremony.
They do not. Even if the ceremony was a judicial proceeding, that does not decide the case. For present purposes, let us accept Rayawa’s assertion that an admission-to-the-Bar ceremony constitutes a judicial proceeding. That still does not prove his allegation against Kumar.
Kumar was not reported to have interrupted the ceremony. She did not refuse a judicial direction, obstruct the proceeding, interfere with an applicant’s admission or create a disturbance in the presence of the court.
Her comments came later and were directed at the substance of Temo’s publicly reported observations about the COI.
The statutory phrase “to any person before whom such proceeding is being had or taken” links the protection of the judicial officer to the proceeding being conducted. It does not necessarily create an indefinite criminal shield around everything the judicial officer said during the event.
If Rayawa’s interpretation were correct, a judge could make sweeping remarks about the Government, Parliament, an Opposition politician, a pending appeal, public expenditure or the findings of another judge during a ceremonial sitting and anyone who subsequently questioned those remarks could be threatened with imprisonment.
Such an interpretation would transform section 194 from a provision protecting the administration of justice into a general prohibition against criticism of judges.
The text does not compel that result.
Rayawa ignores the word “intentional”. The provision is not satisfied merely because a judicial officer feels criticised or because a commentator considers the criticism disrespectful.
The prosecution would have to prove the required intention. It would need to establish that Kumar intended to show prohibited disrespect towards the proceeding or towards Temo in his capacity as the person conducting that proceeding.
Her stated purpose appears to have been to challenge the accuracy and breadth of Temo’s “money wasted” description and to defend the public importance of the issues uncovered by the COI.
That is not conclusive proof of innocence; intention may be inferred from words and circumstances. But it demonstrates why Rayawa’s declaration that Kumar is “clearly in breach” is untenable.
There is nothing clear about it.
The distinction between criticism and intentional disrespect is fundamental. To say that a judge’s observation is mistaken, incomplete, inappropriate or inconsistent with a judgment is not automatically to attack the administration of justice.
Judges are not beyond criticism. Their judgments are appealed. Their reasoning is analysed by academics. Their public remarks are questioned by lawyers, journalists, parliamentarians and citizens. Courts themselves frequently conclude that other judges have made errors.
If disagreement itself constituted criminal disrespect, the appellate system would become conceptually impossible.
“There is no exception” is a dangerous overstatement. Rayawa insists that there is no exception to the rule. But section 194 does not exist above the Constitution.
Section 17 of Fiji’s Constitution protects freedom of speech, expression, thought, opinion and publication. Those freedoms are not absolute, but neither can they be ignored when a criminal provision is invoked against political discussion.
Criminal provisions must be construed with care, especially where an expansive interpretation would chill discussion of public expenditure, judicial administration and constitutional accountability.
The proper question is not whether Kumar can identify a special “exception” allowing her to speak. The State would bear the burden of proving that her conduct falls within the offence.
Rayawa reverses that principle. His argument begins with the assumption that criticism is prohibited unless the speaker can find an immunity.
That is not how criminal responsibility works in a constitutional democracy. Parliamentary privilege is a distraction. Rayawa emphasises that Kumar was not speaking inside Parliament. If her remarks were made outside parliamentary proceedings, she may not enjoy parliamentary privilege in respect of those particular words.
But that takes the argument nowhere. Parliamentary privilege provides especially strong protection for speech in parliamentary proceedings. It is not the source of every person’s ordinary freedom to comment upon judges, judgments and public institutions. A statement made outside Parliament remains subject to the ordinary law, including defamation and contempt. But it does not become criminal merely because parliamentary privilege is unavailable. The absence of an immunity is not proof of an offence.
Rayawa appears to argue Kumar was outside Parliament; she therefore lacked parliamentary privilege; consequently, her criticism violated section 194.
The third proposition does not follow from the first two. The prosecution must still prove the statutory conduct, the connection with a judicial proceeding and the necessary intention. Judicial immunity does not mean what Rayawa suggests.
Rayawa’s treatment of judicial immunity is equally problematic. He claims that Chief Justice Temo could criticise a lower-ranking judge, or “anyone or anything whatsoever” , because he is the highest-ranking judicial officer and enjoys judicial immunity.
Judicial immunity is designed to protect judicial independence by preventing judges from being personally sued for acts performed in the proper exercise of judicial functions. It does not confer an unlimited legal and ethical licence upon a Chief Justice to say anything whatsoever.
The scope of immunity depends upon the nature and context of the function being performed. More importantly, immunity from personal liability does not establish that the judicial officer’s statement is correct, appropriate or immune from public criticism.
Even if Temo was fully protected in making his remarks, that protection does not create a corresponding criminal liability for Kumar.
Rayawa conflates two entirely different questions: whether Temo may incur personal legal liability for what he said; and whether Kumar committed a criminal offence by responding to him. The first does not determine the second.
Was Temo correct? Temo was substantially justified in criticising the legal advice surrounding the extension. If lawyers failed to identify that the President lacked statutory power to extend the Commission, and public funds continued to be spent after its authority expired, that represents a serious professional and financial failure.
The Chief Justice was also entitled to use the episode to remind newly admitted lawyers that they must identify the source and limits of a client’s legal power rather than assume that high office supplies authority which Parliament has not granted. But the phrase “money wasted” lacked necessary qualification.
Justice Tuiqereqere held that, notwithstanding the legal defects that ultimately destroyed the report, the inquiry served a purpose. It exposed serious questions concerning Malimali’s suitability and the process by which the Judicial Services Commission recommended her appointment.
The evidence relating to the live investigation and the Tuvalu incident did not cease to exist merely because the report was quashed. Nor did public-interest questions surrounding the JSC’s decision disappear.
The most accurate formulation would therefore have been: Public money was wasted because defective legal advice and procedural unfairness prevented a legitimate and potentially important inquiry from producing a legally sustainable report.
That assigns responsibility where it belongs without pretending that the inquiry’s subject matter was worthless. Kumar was entitled to make that distinction. The Chief Justice’s institutional position required greater restraint.
There is another dimension that Rayawa ignores. Temo is not merely an individual judge expressing an academic opinion. He is the Chief Justice and chairman of the Judicial Services Commission, the institution centrally involved in the appointment process examined by the COI.
Moreover, litigation arising from the Malimali controversy remains before Fiji’s courts. The President has now formally joined as a respondent in Prime Minister Sitiveni Rabuka’s appeal against Justice Tuiqereqere’s ruling that Malimali’s removal by the President on the Prime Minister’s advice was unlawful. Malimali opposes the application to stay the judgment, and the Attorney-General is seeking to participate.
That appeal must not be confused with the proceedings that quashed the COI report. They are separate cases raising different legal issues. But they arise from the same institutional controversy and substantially overlapping events.
As head of the judiciary, Temo should have been exceptionally cautious about language capable of being understood as pronouncing upon the value of the COI while related appellate proceedings remained alive.
His remarks do not bind the Court of Appeal, and there is no suggestion that the appellate judges will decide the case other than independently. The issue is the appearance created when the institutional head of the judiciary publicly adopts a forceful position within a continuing constitutional controversy.
Judicial independence is protected not only by preventing improper attacks upon judges. It is also protected when judges exercise restraint in commenting publicly upon disputes still moving through the courts. Kumar’s question, whether Temo’s comment was appropriate, was therefore legitimate.
Rayawa’s contradictory conception of free speech
Rayawa’s argument produces an extraordinary imbalance. Temo, he says, may criticise “anyone or anything whatsoever” because he is Chief Justice and has judicial immunity. Kumar, however, may not question Temo because she was outside Parliament.
On this theory, judicial speech travels in only one direction. The Chief Justice may speak without limit, but citizens and elected representatives respond at risk of imprisonment. That is neither equality before the law nor a credible account of constitutional democracy.
A judge’s office commands respect. It does not establish infallibility. Judicial independence protects judges from interference; it does not protect their public statements from analysis.
The public may criticise a judgment without attacking the judge. It may question the Chief Justice’s public remarks without obstructing justice. It may distinguish between legal invalidity and factual uselessness without committing contempt.
A familiar tendency to overstate judicial power.
There is a revealing continuity between Rayawa’s present position and his earlier interventions. As Fijileaks previously demonstrated, Rayawa urged Chief Justice Temo to direct court registries not to accept prosecutions associated with Acting FICAC Commissioner Lavi Rokoika. That proposal overstated the Chief Justice’s administrative power and ignored the de facto officer doctrine, the very doctrine that once preserved prosecutorial acts signed by Rayawa when his own appointment as Acting DPP was challenged.
Now Rayawa again attributes sweeping authority to the Chief Justice: first, the power to block an entire class of prosecutions administratively; and secondly, an apparently unlimited entitlement to criticise anyone while those responding may face criminal prosecution.
Both propositions treat the office of Chief Justice as though it stands above ordinary constitutional restraints.
It does not. Court registries cannot be instructed to decide contested questions of constitutional validity which belong before judges. Likewise, section 194 cannot be used as a general silencing provision whenever someone challenges a statement made by the Chief Justice.
The common thread is not legal principle but the inflation of administrative and judicial authority beyond its proper limits.
Can Kumar be charged? A complaint may be lodged against almost anyone. Police may investigate an allegation, and prosecutorial authorities may decide whether the evidence and public interest justify a charge.
But the real question is whether the reported words provide a sustainable foundation for prosecution. On the presently available evidence, a charge under section 194(1)(m) would face formidable difficulties: Kumar did not disrupt the admission ceremony; her comments appear to have been made subsequently and outside it; she addressed the substance of Temo’s remarks about public expenditure; she did not threaten or abuse the Chief Justice; the necessary connection with a continuing judicial proceeding is uncertain; proof of intentional disrespect would be highly contestable; and constitutional freedom of expression would be directly engaged.
A prosecution would also create the alarming appearance that Fiji’s criminal law was being used to protect the Chief Justice from political criticism. That would do far more harm to public confidence in the judiciary than Kumar’s comments could ever achieve.
The appropriate response is debate not prosecution. Rayawa was free to answer Kumar on the merits. He could have argued that Temo referred only to expenditure incurred after the invalid extension. He could have maintained that any inquiry whose report is ultimately quashed represents an unacceptable loss to taxpayers. He could have defended the professional lesson Temo was offering to newly admitted lawyers.
Those would have been legitimate arguments. Instead, he reached for the threat of criminal prosecution. That choice illustrates precisely why broad offences concerning disrespect must be interpreted cautiously. Once criminal law is deployed to settle political and professional arguments, its purpose shifts from protecting justice to suppressing criticism.
The courtroom is not a sanctuary from public accountability, and the Crimes Act is not a muzzle for the Chief Justice’s critics.
Respect is not silence. Chief Justice Temo was entitled to criticise the defective legal advice that permitted the COI to continue beyond its lawful mandate. If public money was spent on work subsequently declared ultra vires, it was reasonable to describe that expenditure as wasted.
But he should have qualified his conclusion. The COI’s legally defective report did not erase the evidence gathered or the legitimate questions raised about Malimali’s appointment. Nor was it institutionally wise for the Chief Justice and JSC chairman to use such broad language while related litigation remained before the courts.
Premila Kumar was entitled to question him.
Her remarks may be challenged, criticised or rejected. They do not, without considerably more, establish intentional disrespect under section 194(1)(m).
Aca Rayawa’s claim that she is “clearly in breach” is not a judicial finding. It is his opinion, and an opinion built upon an expansive and constitutionally questionable reading of the Crimes Act.
Rayawa may defend Temo. Kumar may question Temo. Fijileaks may scrutinise them both.
That is not contempt. It is public debate.
Respect for the judiciary does not require silence. Judicial immunity does not create judicial infallibility. Parliamentary privilege is not the only protection for political speech. And criticism of the Chief Justice, however uncomfortable, is not automatically a crime.
The most important fact omitted from Aca Rayawa’s defence of Chief Justice Salesi Temo is that Temo was not a disinterested observer of the Commission of Inquiry.
The COI made grave adverse findings concerning his own conduct. It questioned whether Temo had told the truth under oath about his knowledge of the active FICAC investigation involving Barbara Malimali. The report raised the possibility of perjury or making an inconsistent or contradictory statement. It also alleged possible obstruction or perversion of justice and abuse of office arising from his intervention in FICAC’s operations.
The COI went further than merely criticising him. It recommended constitutional action concerning his possible removal for alleged misbehaviour.
These were allegations and recommendations, not criminal convictions. The Commission was not a criminal court, and Temo was entitled to challenge its findings. Justice Dane Tuiqereqere subsequently quashed the COI report and its adverse findings because the process was affected by an invalid extension, apparent bias, irrationality and procedural unfairness.
But the fact that the findings were quashed does not transform Temo into a neutral commentator upon the value of the inquiry.
When he described the outcome as “money wasted”, he was commenting upon an inquiry which had accused him personally of serious wrongdoing and recommended action against him. That created, at the very least, a powerful appearance of personal interest.
Temo may legitimately say that the COI’s findings against him were unlawful, procedurally unfair and incapable of proving any criminal offence. What was institutionally unwise was to use an admission-to-the-Bar ceremony to dismiss the expenditure as “money wasted” without acknowledging that he was among the principal beneficiaries of the judgment which nullified the report.
Former Acting Director of Public Prosecutions Aca Rayawa has once again turned to Facebook to advance a sweeping interpretation of the law. This time, his target is Opposition MP Premila Kumar, whose apparent offence was to question whether Chief Justice Salesi Temo was correct to describe expenditure on the Commission of Inquiry into Barbara Malimali’s appointment as FICAC Commissioner as “money wasted”.
Rayawa relies upon section 194(1)(m) of the Crimes Act 2009. He asserts that Kumar is “clearly in breach” because the Chief Justice made his comments during a ceremony at which new lawyers were admitted to the Bar. According to Rayawa, that ceremony constituted a judicial proceeding; Kumar’s subsequent criticism therefore amounted to intentional disrespect towards the person conducting it.
He adds, with characteristic certainty, that there is “no exception” to the statutory prohibition. Chief Justice Temo, Rayawa claims, could criticise a lower-ranking judge or “anyone or anything whatsoever” because he is Fiji’s highest judicial officer and is protected by judicial immunity.
Kumar, by contrast, was not speaking within Parliament and therefore supposedly exposed herself to criminal prosecution.
This analysis is legally strained, constitutionally troubling and institutionally dangerous.
Rayawa is entitled to defend the Chief Justice. He is entitled to disagree with Kumar. What he is not entitled to do is transform a contestable political and legal opinion into a declaration of criminal guilt merely by quoting one paragraph of the Crimes Act while ignoring its elements, statutory context and constitutional setting.
What Chief Justice Temo actually said during admission to Bar ceremony
The Chief Justice made his comments during an admission-to-the-Bar ceremony at the Grand Pacific Hotel in Suva. He was addressing newly admitted practitioners about the professional responsibility of lawyers to identify the legal limits of their clients’ powers.
Temo referred to Justice Dane Tuiqereqere’s High Court judgment concerning the COI. The President had purported to extend the Commission beyond its original period, but the High Court subsequently held that the relevant legislation did not confer the necessary power of extension.
The Chief Justice criticised the legal advice behind that decision: “Lawyers were hired from overseas and they didn’t read the COI Act properly to show that His Excellency the President doesn’t have the power to extend it.” He continued: “As a result, all the work that they did later was pronounced ultra vires and null and void.” Temo then asked: “What was the loss? Money wasted.”
Read in its full context, Temo’s criticism was directed principally at the legal advice concerning the attempted extension and at the expenditure incurred after the Commission’s lawful authority had allegedly expired. It was not necessarily a carefully reasoned declaration that every dollar spent from the Commission’s establishment was wasted.
Nevertheless, “money wasted” was a broad and politically potent formulation. It inevitably invited public scrutiny, particularly because Justice Tuiqereqere did not find that the subject of the inquiry was pointless.
The High Court found grave legal and procedural defects: the ineffective extension, apparent bias, irrational findings and breaches of natural justice. The report and adverse findings were quashed. But the judge also found that the inquiry had exposed legitimate concerns surrounding Malimali’s appointment, including the active criminal investigation and the Tuvalu incident.
The Commission’s eventual report was legally unsustainable. That does not mean that the questions it investigated were imaginary, that the evidence it uncovered was worthless, or that its entire public-interest purpose vanished retrospectively.
Premilla Kumar did not, on the published material, threaten the Chief Justice, abuse him, interfere with the admission of any lawyer or disrupt the ceremony.
She questioned whether Temo’s description was appropriate. She reportedly argued that the “money wasted” remark risked overshadowing the substantial public-interest questions exposed by the inquiry, including why Malimali was appointed while an active criminal investigation involving her remained unresolved.
Kumar’s intervention may be criticised as political. Her interpretation of the judgment may be disputed. But that is the nature of democratic debate.
The issue is not whether Kumar’s analysis was unquestionably correct. The issue is whether her criticism constituted a criminal act of intentional disrespect carrying a possible sentence of imprisonment.
Rayawa simply assumes that it did.
What section 194(1)(m) actually says. Section 194(1)(m) of the Crimes Act provides that a person commits a summary offence if he or she, “commits any other act of intentional disrespect to any judicial proceeding, or to any person before whom such proceeding is being had or taken.” The prescribed maximum penalty is three months’ imprisonment.
Those words do not create a general offence of disagreeing with a judge. They require proof of several distinct matters:
- There must be an identifiable judicial proceeding.
- The conduct must be directed towards that proceeding or towards the person before whom it is being had or taken.
- The conduct must amount legally to disrespect.
- The disrespect must be intentional.
- Every element must be proved beyond reasonable doubt.
Rayawa cites the provision as though the words “intentional disrespect” are self-defining and encompass every subsequent criticism of anything uttered by a judicial officer during a court-related ceremony.
They do not. Even if the ceremony was a judicial proceeding, that does not decide the case. For present purposes, let us accept Rayawa’s assertion that an admission-to-the-Bar ceremony constitutes a judicial proceeding. That still does not prove his allegation against Kumar.
Kumar was not reported to have interrupted the ceremony. She did not refuse a judicial direction, obstruct the proceeding, interfere with an applicant’s admission or create a disturbance in the presence of the court.
Her comments came later and were directed at the substance of Temo’s publicly reported observations about the COI.
The statutory phrase “to any person before whom such proceeding is being had or taken” links the protection of the judicial officer to the proceeding being conducted. It does not necessarily create an indefinite criminal shield around everything the judicial officer said during the event.
If Rayawa’s interpretation were correct, a judge could make sweeping remarks about the Government, Parliament, an Opposition politician, a pending appeal, public expenditure or the findings of another judge during a ceremonial sitting and anyone who subsequently questioned those remarks could be threatened with imprisonment.
Such an interpretation would transform section 194 from a provision protecting the administration of justice into a general prohibition against criticism of judges.
The text does not compel that result.
Rayawa ignores the word “intentional”. The provision is not satisfied merely because a judicial officer feels criticised or because a commentator considers the criticism disrespectful.
The prosecution would have to prove the required intention. It would need to establish that Kumar intended to show prohibited disrespect towards the proceeding or towards Temo in his capacity as the person conducting that proceeding.
Her stated purpose appears to have been to challenge the accuracy and breadth of Temo’s “money wasted” description and to defend the public importance of the issues uncovered by the COI.
That is not conclusive proof of innocence; intention may be inferred from words and circumstances. But it demonstrates why Rayawa’s declaration that Kumar is “clearly in breach” is untenable.
There is nothing clear about it.
The distinction between criticism and intentional disrespect is fundamental. To say that a judge’s observation is mistaken, incomplete, inappropriate or inconsistent with a judgment is not automatically to attack the administration of justice.
Judges are not beyond criticism. Their judgments are appealed. Their reasoning is analysed by academics. Their public remarks are questioned by lawyers, journalists, parliamentarians and citizens. Courts themselves frequently conclude that other judges have made errors.
If disagreement itself constituted criminal disrespect, the appellate system would become conceptually impossible.
“There is no exception” is a dangerous overstatement. Rayawa insists that there is no exception to the rule. But section 194 does not exist above the Constitution.
Section 17 of Fiji’s Constitution protects freedom of speech, expression, thought, opinion and publication. Those freedoms are not absolute, but neither can they be ignored when a criminal provision is invoked against political discussion.
Criminal provisions must be construed with care, especially where an expansive interpretation would chill discussion of public expenditure, judicial administration and constitutional accountability.
The proper question is not whether Kumar can identify a special “exception” allowing her to speak. The State would bear the burden of proving that her conduct falls within the offence.
Rayawa reverses that principle. His argument begins with the assumption that criticism is prohibited unless the speaker can find an immunity.
That is not how criminal responsibility works in a constitutional democracy. Parliamentary privilege is a distraction. Rayawa emphasises that Kumar was not speaking inside Parliament. If her remarks were made outside parliamentary proceedings, she may not enjoy parliamentary privilege in respect of those particular words.
But that takes the argument nowhere. Parliamentary privilege provides especially strong protection for speech in parliamentary proceedings. It is not the source of every person’s ordinary freedom to comment upon judges, judgments and public institutions. A statement made outside Parliament remains subject to the ordinary law, including defamation and contempt. But it does not become criminal merely because parliamentary privilege is unavailable. The absence of an immunity is not proof of an offence.
Rayawa appears to argue Kumar was outside Parliament; she therefore lacked parliamentary privilege; consequently, her criticism violated section 194.
The third proposition does not follow from the first two. The prosecution must still prove the statutory conduct, the connection with a judicial proceeding and the necessary intention. Judicial immunity does not mean what Rayawa suggests.
Rayawa’s treatment of judicial immunity is equally problematic. He claims that Chief Justice Temo could criticise a lower-ranking judge, or “anyone or anything whatsoever” , because he is the highest-ranking judicial officer and enjoys judicial immunity.
Judicial immunity is designed to protect judicial independence by preventing judges from being personally sued for acts performed in the proper exercise of judicial functions. It does not confer an unlimited legal and ethical licence upon a Chief Justice to say anything whatsoever.
The scope of immunity depends upon the nature and context of the function being performed. More importantly, immunity from personal liability does not establish that the judicial officer’s statement is correct, appropriate or immune from public criticism.
Even if Temo was fully protected in making his remarks, that protection does not create a corresponding criminal liability for Kumar.
Rayawa conflates two entirely different questions: whether Temo may incur personal legal liability for what he said; and whether Kumar committed a criminal offence by responding to him. The first does not determine the second.
Was Temo correct? Temo was substantially justified in criticising the legal advice surrounding the extension. If lawyers failed to identify that the President lacked statutory power to extend the Commission, and public funds continued to be spent after its authority expired, that represents a serious professional and financial failure.
The Chief Justice was also entitled to use the episode to remind newly admitted lawyers that they must identify the source and limits of a client’s legal power rather than assume that high office supplies authority which Parliament has not granted. But the phrase “money wasted” lacked necessary qualification.
Justice Tuiqereqere held that, notwithstanding the legal defects that ultimately destroyed the report, the inquiry served a purpose. It exposed serious questions concerning Malimali’s suitability and the process by which the Judicial Services Commission recommended her appointment.
The evidence relating to the live investigation and the Tuvalu incident did not cease to exist merely because the report was quashed. Nor did public-interest questions surrounding the JSC’s decision disappear.
The most accurate formulation would therefore have been: Public money was wasted because defective legal advice and procedural unfairness prevented a legitimate and potentially important inquiry from producing a legally sustainable report.
That assigns responsibility where it belongs without pretending that the inquiry’s subject matter was worthless. Kumar was entitled to make that distinction. The Chief Justice’s institutional position required greater restraint.
There is another dimension that Rayawa ignores. Temo is not merely an individual judge expressing an academic opinion. He is the Chief Justice and chairman of the Judicial Services Commission, the institution centrally involved in the appointment process examined by the COI.
Moreover, litigation arising from the Malimali controversy remains before Fiji’s courts. The President has now formally joined as a respondent in Prime Minister Sitiveni Rabuka’s appeal against Justice Tuiqereqere’s ruling that Malimali’s removal by the President on the Prime Minister’s advice was unlawful. Malimali opposes the application to stay the judgment, and the Attorney-General is seeking to participate.
That appeal must not be confused with the proceedings that quashed the COI report. They are separate cases raising different legal issues. But they arise from the same institutional controversy and substantially overlapping events.
As head of the judiciary, Temo should have been exceptionally cautious about language capable of being understood as pronouncing upon the value of the COI while related appellate proceedings remained alive.
His remarks do not bind the Court of Appeal, and there is no suggestion that the appellate judges will decide the case other than independently. The issue is the appearance created when the institutional head of the judiciary publicly adopts a forceful position within a continuing constitutional controversy.
Judicial independence is protected not only by preventing improper attacks upon judges. It is also protected when judges exercise restraint in commenting publicly upon disputes still moving through the courts. Kumar’s question, whether Temo’s comment was appropriate, was therefore legitimate.
Rayawa’s contradictory conception of free speech
Rayawa’s argument produces an extraordinary imbalance. Temo, he says, may criticise “anyone or anything whatsoever” because he is Chief Justice and has judicial immunity. Kumar, however, may not question Temo because she was outside Parliament.
On this theory, judicial speech travels in only one direction. The Chief Justice may speak without limit, but citizens and elected representatives respond at risk of imprisonment. That is neither equality before the law nor a credible account of constitutional democracy.
A judge’s office commands respect. It does not establish infallibility. Judicial independence protects judges from interference; it does not protect their public statements from analysis.
The public may criticise a judgment without attacking the judge. It may question the Chief Justice’s public remarks without obstructing justice. It may distinguish between legal invalidity and factual uselessness without committing contempt.
A familiar tendency to overstate judicial power.
There is a revealing continuity between Rayawa’s present position and his earlier interventions. As Fijileaks previously demonstrated, Rayawa urged Chief Justice Temo to direct court registries not to accept prosecutions associated with Acting FICAC Commissioner Lavi Rokoika. That proposal overstated the Chief Justice’s administrative power and ignored the de facto officer doctrine, the very doctrine that once preserved prosecutorial acts signed by Rayawa when his own appointment as Acting DPP was challenged.
Now Rayawa again attributes sweeping authority to the Chief Justice: first, the power to block an entire class of prosecutions administratively; and secondly, an apparently unlimited entitlement to criticise anyone while those responding may face criminal prosecution.
Both propositions treat the office of Chief Justice as though it stands above ordinary constitutional restraints.
It does not. Court registries cannot be instructed to decide contested questions of constitutional validity which belong before judges. Likewise, section 194 cannot be used as a general silencing provision whenever someone challenges a statement made by the Chief Justice.
The common thread is not legal principle but the inflation of administrative and judicial authority beyond its proper limits.
Can Kumar be charged? A complaint may be lodged against almost anyone. Police may investigate an allegation, and prosecutorial authorities may decide whether the evidence and public interest justify a charge.
But the real question is whether the reported words provide a sustainable foundation for prosecution. On the presently available evidence, a charge under section 194(1)(m) would face formidable difficulties: Kumar did not disrupt the admission ceremony; her comments appear to have been made subsequently and outside it; she addressed the substance of Temo’s remarks about public expenditure; she did not threaten or abuse the Chief Justice; the necessary connection with a continuing judicial proceeding is uncertain; proof of intentional disrespect would be highly contestable; and constitutional freedom of expression would be directly engaged.
A prosecution would also create the alarming appearance that Fiji’s criminal law was being used to protect the Chief Justice from political criticism. That would do far more harm to public confidence in the judiciary than Kumar’s comments could ever achieve.
The appropriate response is debate not prosecution. Rayawa was free to answer Kumar on the merits. He could have argued that Temo referred only to expenditure incurred after the invalid extension. He could have maintained that any inquiry whose report is ultimately quashed represents an unacceptable loss to taxpayers. He could have defended the professional lesson Temo was offering to newly admitted lawyers.
Those would have been legitimate arguments. Instead, he reached for the threat of criminal prosecution. That choice illustrates precisely why broad offences concerning disrespect must be interpreted cautiously. Once criminal law is deployed to settle political and professional arguments, its purpose shifts from protecting justice to suppressing criticism.
The courtroom is not a sanctuary from public accountability, and the Crimes Act is not a muzzle for the Chief Justice’s critics.
Respect is not silence. Chief Justice Temo was entitled to criticise the defective legal advice that permitted the COI to continue beyond its lawful mandate. If public money was spent on work subsequently declared ultra vires, it was reasonable to describe that expenditure as wasted.
But he should have qualified his conclusion. The COI’s legally defective report did not erase the evidence gathered or the legitimate questions raised about Malimali’s appointment. Nor was it institutionally wise for the Chief Justice and JSC chairman to use such broad language while related litigation remained before the courts.
Premila Kumar was entitled to question him.
Her remarks may be challenged, criticised or rejected. They do not, without considerably more, establish intentional disrespect under section 194(1)(m).
Aca Rayawa’s claim that she is “clearly in breach” is not a judicial finding. It is his opinion, and an opinion built upon an expansive and constitutionally questionable reading of the Crimes Act.
Rayawa may defend Temo. Kumar may question Temo. Fijileaks may scrutinise them both.
That is not contempt. It is public debate.
Respect for the judiciary does not require silence. Judicial immunity does not create judicial infallibility. Parliamentary privilege is not the only protection for political speech. And criticism of the Chief Justice, however uncomfortable, is not automatically a crime.
The most important fact omitted from Aca Rayawa’s defence of Chief Justice Salesi Temo is that Temo was not a disinterested observer of the Commission of Inquiry.
The COI made grave adverse findings concerning his own conduct. It questioned whether Temo had told the truth under oath about his knowledge of the active FICAC investigation involving Barbara Malimali. The report raised the possibility of perjury or making an inconsistent or contradictory statement. It also alleged possible obstruction or perversion of justice and abuse of office arising from his intervention in FICAC’s operations.
The COI went further than merely criticising him. It recommended constitutional action concerning his possible removal for alleged misbehaviour.
These were allegations and recommendations, not criminal convictions. The Commission was not a criminal court, and Temo was entitled to challenge its findings. Justice Dane Tuiqereqere subsequently quashed the COI report and its adverse findings because the process was affected by an invalid extension, apparent bias, irrationality and procedural unfairness.
But the fact that the findings were quashed does not transform Temo into a neutral commentator upon the value of the inquiry.
When he described the outcome as “money wasted”, he was commenting upon an inquiry which had accused him personally of serious wrongdoing and recommended action against him. That created, at the very least, a powerful appearance of personal interest.
Temo may legitimately say that the COI’s findings against him were unlawful, procedurally unfair and incapable of proving any criminal offence. What was institutionally unwise was to use an admission-to-the-Bar ceremony to dismiss the expenditure as “money wasted” without acknowledging that he was among the principal beneficiaries of the judgment which nullified the report.
From Fijileaks Archives, February 2026
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.
