The Law Was Ready - So Why Stop It? A Rebuttal to the COI's Delay of Biman Prasad's Prosecution. COI's recommendation for Prasad's FILE to be reviewed by an 'independent counsel' is procedurally REDUNDANT

*Public Confidence Requires Timely Prosecution, Not Perpetual Re-Evaluation
*The public has already waited:
*Over 10 years since Biman’ Prasad's 2014 false declaration,
*Several additional years of similar non-disclosures (2015–2024),
*And now faces a new review cycle, with no public timetable and no guarantee of action.
*This is not accountability. It is procedural purgatory.
*The Global Girmit Institute, the concealed shareholdings, and the property and directorship omissions — all these are matters already supported by documentary evidence. They do not require a second opinion. They require prosecution.
*The proper response is not to delay justice or “outsource” prosecutorial discretion — it is to proceed with charges already deemed valid.
*If Barbara Malimali’s advice was compromised, then the original charge recommendation is even more credible — and justice demands it be acted on now, not reviewed again.

Rebuttal to COI Recommendation on Further Review of Biman Prasad’s File

​We respectfully acknowledge the Commission of Inquiry’s work and accept that it was conducted in good faith. However, we fundamentally disagree with the recommendation that the 'FICAC FILE' relating to Biman Prasad be referred for further review by an 'independent counsel'. This recommendation is not only unnecessary, it risks undermining prosecutorial integrity, delaying justice, and eroding public trust in institutions meant to uphold the rule of law.

The Case Was Already Prosecutable – And Defence Counsel Acknowledged It

As of early September 2024, the Fiji Independent Commission Against Corruption (FICAC) had completed its investigation into Prasad’s statutory declarations, specifically concerning:

• The 2014 false declaration under the Political Parties Act;
• The undisclosed shareholding and directorship in Lotus Construction (Fiji);
• The undisclosed co-owned property on Burerua Street, Suva;
• His wife’s undisclosed role as trustee of the Global Girmit Institute (GGI) between 2018–2024.​

Importantly, on 5 September 2024, Prasad’s lawyer, Richard Naidu, wrote to FICAC requesting that his client not be charged on 5 September as scheduled, but instead on 9 September — to accommodate scheduling issues. This is not a speculative exchange. It is clear documentary evidence that:

• FICAC had reached the decision to prosecute, and
• Defence counsel had accepted that outcome and was merely negotiating timing.

There was no dispute over whether a charge should proceed — the only question was when.

The Commission’s Recommendation for a “Further Review” Is Procedurally Redundant

To now suggest that Prasad’s file be “reviewed” again by a new, unnamed “independent counsel” is not just redundant — it is legally irregular and publicly damaging.

• FICAC is the body mandated by the Constitution (s.115) to investigate and prosecute corruption.
• The threshold for prosecution had already been met.
• No new evidence has been presented by the COI to suggest the file is flawed.
• Naidu’s letter confirms the file was in prosecutorial readiness.

In this light, the recommendation for review appears to:

• Create unnecessary delay,
• Open the door for political shielding, and
• Interfere with FICAC’s lawful independence.

​Legal Authorities Support FICAC’s Discretion

The principle that investigative and charging discretion must remain free from external influence is well established

• Matalulu v. Director of Public Prosecutions [2003] 4 LRC 712 (Fiji):​

“The decision to prosecute is not reviewable unless bad faith or improper purpose is shown.”

• R (Corner House Research) v. Director of the Serious Fraud Office [2008] UKHL 60:
  “The independence of prosecutorial decision-making is central to the rule of law.”
• R v. Smith [2004] EWCA Crim 631:
  “Delays in prosecutorial action caused by administrative interference may amount to an abuse of process.”

There is no bad faith in FICAC’s decision to prosecute. On the contrary, it is supported by evidence, law, and even the opposing party’s own procedural concession. We therefore call on FICAC to proceed with charges without further delay. “Justice delayed, especially for the politically powerful, is justice denied to the public.” Let the law take its course. Let charges proceed.

Doubts about Barbara Malimali Are a Personnel Issue — Not a Legal One

If the COI doubts Malimali’s integrity or motivation (e.g. her advice to close the Biman file), that may justify her removal or an inquiry into her conduct — but it does not invalidate the evidence in the file or the law supporting prosecution.

In fact, the FICAC legal team did recommend charges before she intervened. If anything, the COI’s ruling about Malimali should strengthen the case for restoring the file to the original trajectory, not delaying it further. If Malimali’s advice was compromised, then the original charge recommendation is even more credible — and justice demands it be acted on now, not reviewed again.

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*Barbara Malimali and Kaushal Reddy involved could potentially face criminal charges if their actions in the closure of the Biman Prasad file meet the thresholds for criminal misconduct, abuse of office, or obstruction of justice under the laws of Fiji.

*In what can only be described as a failure of basic due diligence, Kaushal Reddy advised Malimali that investigators should have interviewed the lawyer who witnessed Biman Prasad’s statutory declaration—without realizing the lawyer, Raman Prasad Singh, had died in May 2020.

​As we pointed out previously the file relating to Prasad was under active consideration for prosecution, with FICAC investigators prepared to lay charges. However, following Malimali’s reassignment of the file to the advising officer—described by COI as inexperienced—the investigation was closed. A key justification provided was the lack of an interview with the witnessing lawyer, a physical impossibility given Singh’s death five years earlier.

This basic factual error raises serious questions about:

• The competence of the officer Kaushal Reddy whose advice influenced the closure;
• Malimali’s own diligence, judgment, and responsibility to verify material facts before deciding to halt a politically sensitive prosecution;
• The possibility of a pretextual closure, using flawed logic to justify inaction.​

In prosecutorial decision-making, failure to ascertain whether a critical witness is alive reflects not only incompetence, but also a breakdown in investigative integrity. If this error was the basis—or even part of the rationale—for shelving a corruption file involving a senior Cabinet Minister, public confidence in FICAC’s impartiality and rigour is seriously undermined.

We have noted that in cases involving statutory declarations, the focus should be on documentary consistency and corroborating conduct, not solely post-facto interviews. If the statutory declaration was signed and filed, and if other evidence supports the case, the death of a witnessing lawyer should not bar prosecution—especially not on the mistaken belief that he could still be interviewed.

​When prosecutorial discretion is influenced by factually incorrect advice and unchecked assumptions, the real casualty is not the reputation of an officer—it is the rule of law itself.

To reopen a case or reverse a decision based on a materially wrong observation of fact—such as relying on the mistaken belief that a witness was alive when they were already deceased—courts have long recognized principles under administrative law, judicial review, and natural justice that can support such a move. Here are key case laws and principles that can be used to argue for reopening a corruption case closed on the basis of a factual error.
 
1. Secretary of State for Education v Tameside MBC [1977] AC 1014
 
Principle: Material Mistake of Fact

A public authority’s decision may be unlawful if it is based on a misunderstanding or ignorance of an established and relevant fact.

Application:
If a FICAC officer’s advice (and Malimali’s decision) was based on the false belief that a crucial witness (Raman Prasad Singh) could be interviewed, when in fact he died in 2020, that is a material mistake of fact. The decision to close the file may therefore be invalid and capable of being quashed or reviewed
 
E v Secretary of State for the Home Department [2004] EWCA Civ 4

Key Principle: Mistake of Fact as a Ground for Judicial Review

The UK Court of Appeal recognized that a “mistake of fact giving rise to unfairness” can be a standalone ground of judicial review.

Test (from Carnwath LJ):

1. There was a mistake as to an existing fact.
2. The fact was established and uncontentious.
3. The claimant (or affected party) was not responsible for the mistake.
4. The mistake played a material part in the decision.

Application:
All four conditions may be satisfied here:

• The officer Kaushal Reddy believed Singh was alive — mistake of existing fact.
• His death in 2020 is verifiable and uncontentious.
• FICAC investigators did not cause the mistake.
• The mistake materially affected the closure of the file.​

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
 
Key Principle: Error of law includes misunderstanding facts relevant to jurisdiction

This case expanded the scope of reviewable errors, ruling that any error affecting the exercise of statutory power, including a misunderstanding of jurisdictional facts, could render a decision unlawful.

Application:
If Malimali closed the file believing a key evidentiary step was missing—interviewing a dead witness—her exercise of prosecutorial discretion may have been based on a jurisdictional error, rendering the decision reviewable and voidable.

R v Criminal Cases Review Commission, ex parte Pearson [2000] EWHC Admin 10

Principle: New or Corrected Facts Can Justify Re-consideratin

Even after decisions are made, if a material fact comes to light that undermines the integrity of the original decision, there is legal justification to reopen the matter.

Application:
The correct fact (Singh was deceased) invalidates a key basis for non-prosecution. The original decision should be reviewed, especially when it involves a Cabinet Minister and public confidence in anti-corruption efforts.
 
Summary of Legal Grounds to Reopen

1. Material mistake of fact (E v Secretary of State)
2. Misapplication of discretionary power (Padfield v Minister of Agriculture)
3. Jurisdictional error based on incorrect fact (Anisminic)
4. Unfairness affecting the decision outcome (Tameside, Pearson)
5. Failure to verify critical facts or consider available evidence = procedural and substantive error.

Barbara Malimali​ and Kaushal Reddy involved could potentially face criminal charges if their actions in the closure of the Biman Prasad file meet the thresholds for criminal misconduct, abuse of office, or obstruction of justice under the laws of Fiji. Here’s a legal breakdown of the possible charges, the thresholds, and relevant statutes:
 
1. Abuse of Office (Crimes Act 2009, s139)

Section 139 – Abuse of Office:

“A public official who, without reasonable excuse, does or directs to be done, in abuse of the authority of their office, an arbitrary act prejudicial to the rights of another, is guilty of an indictable offence.”
 
To establish this:

• The person is a public official →  (Malimali and Kaushal are).
• The act was done in abuse of their official authority → e.g., closing a corruption file for improper motives or based on manipulated advice.
• The act was arbitrary or unreasonable.
• The act was prejudicial to the rights of another → here, to the public interest in accountability and anti-corruption.

 
Penalty:

• Up to 10 years’ imprisonment.

2. Perverting the Course of Justice / Obstruction (Crimes Act 2009, s190–192)

If it can be shown that either party intentionally interfered with the legal process to protect a political figure or derail prosecution, this could fall under:

Section 190: Attempting to Pervert the Course of Justice

Includes any act intended to obstruct, prevent, pervert, or defeat the course of justice.

Application:

• If Malimali reassigned the file and closed it to shield Biman Prasad, and not due to genuine evidentiary concerns, this may qualify.
• If Reddy knowingly gave false or misleading advice (e.g., recommending an interview with someone already deceased to fabricate a basis for closure), that may also qualify.

3. Making a False or Misleading Statement (Crimes Act 2009, s177)

If the FICAC officer Kaushal Reddy made representations to Malimali or recorded internal file notes that were knowingly false or grossly negligent, this could amount to:

“Knowingly making a false or misleading statement in the performance of official duties.”

Even if there was no corrupt intent, gross negligence in failing to check whether a witness was alive could support a disciplinary or civil misconduct case, and possibly criminal negligence if systemic damage resulted.

​We, however, argue that there is NO need or justification for the 'Ficac File' on Biman Prasad to be reviewed by an 'independent counsel' - he should be arrested and charged. He has been on the run since 2014. He lied to enter Parliament.
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