*Justice Ashton-Lewis was not a mere courier delivering a document to the President. He conducted hearings, assessed evidence, made findings of fact, and drew conclusions affecting the integrity of public office. Functus officio does not erase authorship, extinguish standing, or impose silence. Finality of decision does not require the disappearance of the decision-maker. |  Justice David Ashton-Lewis |
*What is now being advanced is a distorted version of the doctrine: that once functus, a commissioner may not explain the process, may not defend the report, and may not be represented in court when the inquiry is attacked. There is no authority for that proposition. If it were correct, any inquiry could be ambushed the moment it reports, attacked without reply and restrained without defence. Functus officio would become a gag rule, not a doctrine of finality.
Hemendra Nagin representing Justice Ashton-Lewis, Solicitor-General Ropate Green and JSC lawyer Isireli Fa
| "Functus officio would become a gag rule, not a doctrine of finality." |  |
The Fiji High Court hearing scheduled for 31 December is being presented as a dispute over legal representation. That framing understates what is at stake.
The case before the Court raises a deeper constitutional question: whether an independent Commission of Inquiry in Fiji retains legal life after it reports, or whether it is absorbed, managed, and neutralised once its findings become inconvenient.
At the centre of the dispute is the Commission of Inquiry into the aborted appointment of former FICAC Commissioner Barbara Malimali. The Commission was not established by the Judicial Service Commission (JSC), as some have suggested. It was appointed by the President, acting on the advice of the Prime Minister, under executive authority.
The JSC was not the author of the inquiry; it was one of the institutions affected by its conclusions. That distinction matters, because it exposes the true nature of the litigation now before the Court.
The JSC’s uneasy role
Having neither commissioned the inquiry nor appointed its Chair, the Judicial Service Commission now seeks to restrain the use of the COI report. This is not an internal procedural correction. It is a constitutional body reacting to findings produced by an external accountability mechanism over which it had no control.
The JSC’s position is therefore not supervisory but defensive. Constitutional bodies do not enjoy a right to disown independent inquiries merely because the outcome is uncomfortable.
The Solicitor-General’s claim, and its danger
The Solicitor-General Ropate Green argues that once the COI report was submitted to the President, jurisdiction, including legal representation, shifted entirely to the State. At first glance, the argument appears administratively neat. Constitutionally, it is troubling.
If accepted, it would mean that the Executive may commission an inquiry, receive its findings, and then assume complete control over how those findings are defended, explained, deployed, or quietly set aside. Under such a doctrine, a Commission of Inquiry would have no independent legal existence beyond the moment of delivery. That is not accountability. It is absorption.
The distortion of functus officio before the Fiji High Court
Central to the attempt to sideline the Chair of the Commission is reliance on the doctrine of functus officio. Justice David Ashton-Lewis has himself acknowledged that the Commission is functus: its task is complete, its findings are final, and the inquiry cannot be reopened.
That is orthodox law.
But functus officio has limits. It prevents the re-exercise of decision-making power; it does not erase authorship, extinguish standing, or impose silence. Finality of decision does not require the disappearance of the decision-maker.
What is now being advanced is a distorted version of the doctrine: that once functus, a commissioner may not explain the process, may not defend the report, and may not be represented in court when the inquiry is attacked.
There is no authority for that proposition. If it were correct, any inquiry could be ambushed the moment it reports, attacked without reply and restrained without defence. Functus officio would become a gag rule, not a doctrine of finality.
Natural justice, and the fatal contradiction
Those challenging the COI have not confined themselves to jurisdictional or technical objections. They rely heavily on natural justice, asserting that they were not consulted, not heard, or not given an opportunity to respond before adverse findings were made.
Once that argument is raised, the process of the inquiry itself becomes the issue. Natural justice claims cannot be assessed in the abstract. The Court must know:
Only one person can explain those matters authoritatively: Justice David Ashton-Lewis, the Chair of the Commission of Inquiry
Here lies the challengers’ fatal inconsistency. They allege procedural unfairness, yet seek to silence the very person who designed and conducted the process. They invoke natural justice while opposing the participation of the decision-maker whose conduct is under attack.
That position is untenable. Natural justice cannot be tested by excluding the author of the process. To do so would itself offend the principles of fairness the challengers claim to defend.
Justice Ashton-Lewis is not reopening the inquiry or revisiting findings. He is explaining how fairness was applied, why certain steps were taken, and what opportunities were afforded. That is not the exercise of power; it is the defence of process.
Why the Chair’s involvement remains constitutionally necessary
Justice Ashton-Lewis was not a mere courier delivering a document to the President. He conducted hearings, assessed evidence, made findings of fact, and drew conclusions affecting the integrity of public office.
The moment those findings were challenged, restrained, or sidelined, natural justice required that the author be heard. Representation in court is not a continuation of the inquiry; it is a safeguard against procedural ambush.
To deny that right would permit executive and institutional actors to attack an inquiry while denying the public a full account of how it was conducted.
The wider constitutional risk
This case reveals a deeper problem in Fiji’s governance culture: the instinct to manage outcomes rather than confront findings. When independent processes expose uncomfortable truths, the response is not reform but containment through settlements, jurisdictional disputes, and the creative misuse of legal doctrine.
If the Court accepts that a Commission of Inquiry effectively ceases to exist once it reports, future inquiries will be reduced to performative exercises: useful for appearances, expendable in substance.
That would mark a serious retreat from constitutional accountability.
What the Court must decide
The Court is not being asked to choose between lawyers. It is being asked to decide whether Commissions of Inquiry in Fiji are:
The answer will define whether truth in Fiji has a life beyond political convenience. The Constitution demands the former. Political comfort prefers the latter.
On 31 December, the Fiji High Court must decide who owns the Report after an inquiry ends, and whether truth in Fiji still matters once it becomes inconvenient.
The case before the Court raises a deeper constitutional question: whether an independent Commission of Inquiry in Fiji retains legal life after it reports, or whether it is absorbed, managed, and neutralised once its findings become inconvenient.
At the centre of the dispute is the Commission of Inquiry into the aborted appointment of former FICAC Commissioner Barbara Malimali. The Commission was not established by the Judicial Service Commission (JSC), as some have suggested. It was appointed by the President, acting on the advice of the Prime Minister, under executive authority.
The JSC was not the author of the inquiry; it was one of the institutions affected by its conclusions. That distinction matters, because it exposes the true nature of the litigation now before the Court.
The JSC’s uneasy role
Having neither commissioned the inquiry nor appointed its Chair, the Judicial Service Commission now seeks to restrain the use of the COI report. This is not an internal procedural correction. It is a constitutional body reacting to findings produced by an external accountability mechanism over which it had no control.
The JSC’s position is therefore not supervisory but defensive. Constitutional bodies do not enjoy a right to disown independent inquiries merely because the outcome is uncomfortable.
The Solicitor-General’s claim, and its danger
The Solicitor-General Ropate Green argues that once the COI report was submitted to the President, jurisdiction, including legal representation, shifted entirely to the State. At first glance, the argument appears administratively neat. Constitutionally, it is troubling.
If accepted, it would mean that the Executive may commission an inquiry, receive its findings, and then assume complete control over how those findings are defended, explained, deployed, or quietly set aside. Under such a doctrine, a Commission of Inquiry would have no independent legal existence beyond the moment of delivery. That is not accountability. It is absorption.
The distortion of functus officio before the Fiji High Court
Central to the attempt to sideline the Chair of the Commission is reliance on the doctrine of functus officio. Justice David Ashton-Lewis has himself acknowledged that the Commission is functus: its task is complete, its findings are final, and the inquiry cannot be reopened.
That is orthodox law.
But functus officio has limits. It prevents the re-exercise of decision-making power; it does not erase authorship, extinguish standing, or impose silence. Finality of decision does not require the disappearance of the decision-maker.
What is now being advanced is a distorted version of the doctrine: that once functus, a commissioner may not explain the process, may not defend the report, and may not be represented in court when the inquiry is attacked.
There is no authority for that proposition. If it were correct, any inquiry could be ambushed the moment it reports, attacked without reply and restrained without defence. Functus officio would become a gag rule, not a doctrine of finality.
Natural justice, and the fatal contradiction
Those challenging the COI have not confined themselves to jurisdictional or technical objections. They rely heavily on natural justice, asserting that they were not consulted, not heard, or not given an opportunity to respond before adverse findings were made.
Once that argument is raised, the process of the inquiry itself becomes the issue. Natural justice claims cannot be assessed in the abstract. The Court must know:
- who was notified,
- who was invited to participate,
- what opportunities were extended,
- what was declined or ignored,
- and why particular procedural choices were made.
Only one person can explain those matters authoritatively: Justice David Ashton-Lewis, the Chair of the Commission of Inquiry
Here lies the challengers’ fatal inconsistency. They allege procedural unfairness, yet seek to silence the very person who designed and conducted the process. They invoke natural justice while opposing the participation of the decision-maker whose conduct is under attack.
That position is untenable. Natural justice cannot be tested by excluding the author of the process. To do so would itself offend the principles of fairness the challengers claim to defend.
Justice Ashton-Lewis is not reopening the inquiry or revisiting findings. He is explaining how fairness was applied, why certain steps were taken, and what opportunities were afforded. That is not the exercise of power; it is the defence of process.
Why the Chair’s involvement remains constitutionally necessary
Justice Ashton-Lewis was not a mere courier delivering a document to the President. He conducted hearings, assessed evidence, made findings of fact, and drew conclusions affecting the integrity of public office.
The moment those findings were challenged, restrained, or sidelined, natural justice required that the author be heard. Representation in court is not a continuation of the inquiry; it is a safeguard against procedural ambush.
To deny that right would permit executive and institutional actors to attack an inquiry while denying the public a full account of how it was conducted.
The wider constitutional risk
This case reveals a deeper problem in Fiji’s governance culture: the instinct to manage outcomes rather than confront findings. When independent processes expose uncomfortable truths, the response is not reform but containment through settlements, jurisdictional disputes, and the creative misuse of legal doctrine.
If the Court accepts that a Commission of Inquiry effectively ceases to exist once it reports, future inquiries will be reduced to performative exercises: useful for appearances, expendable in substance.
That would mark a serious retreat from constitutional accountability.
What the Court must decide
The Court is not being asked to choose between lawyers. It is being asked to decide whether Commissions of Inquiry in Fiji are:
- independent accountability mechanisms that retain legal standing when challenged, or
- temporary devices whose findings can be absorbed and controlled by the Executive once delivered.
The answer will define whether truth in Fiji has a life beyond political convenience. The Constitution demands the former. Political comfort prefers the latter.
On 31 December, the Fiji High Court must decide who owns the Report after an inquiry ends, and whether truth in Fiji still matters once it becomes inconvenient.
Can the JSC and the State lawfully settle without Justice Ashton-Lewis?
Yes, procedurally they can attempt to settle but the settlement has sharp legal limits and cannot do what many assume it can.
Justice David Ashton-Lewis was appointed to chair the Commission of Inquiry (COI). In law, the COI itself is not a permanent legal person. Once it delivers its report, it effectively dissolves. The appointing authority is the President acting on executive advice, represented in court by the State (Attorney-General / Solicitor-General).
On that narrow basis:
However, and this is the critical point, they cannot lawfully “settle away” the truth, legality, or consequences of the COI report.
A settlement can:
A settlement cannot:
Justice Ashton-Lewis may not be a party to the settlement, but his findings do not evaporate simply because the litigants walk away. They remain a public document unless formally quashed by a court.
That is why the court is cautious: it is being asked, in effect, to endorse a settlement that may have constitutional and public-interest consequences far beyond the parties before it.
What happens to police investigations launched because of the COI?
They are entirely unaffected. This point is legally clear and often misunderstood. Police investigations are grounded in:
They are not dependent on:
Even if:
Put bluntly, criminal liability does not depend on the comfort level of the JSC or the acting Attorney-General. Any attempt, explicit or implicit, to use a civil settlement to:
What if police investigations relied heavily on the COI findings?
Even then, the legal position does not change. Police may:
What they cannot do is lawfully abandon an investigation solely because the JSC and the State have settled a judicial review case.
If they did, that decision would itself be vulnerable to challenge as:
The Bigger Picture (Why This Matters)
This is precisely why the settlement is so controversial. If the COI findings are wrong, they should be tested and struck down by a court; the findings are right, they should stand and be acted upon.
A settlement does neither. It freezes the law in an ambiguous space where:
But legally, one thing remains firm.
Police investigations, prosecutorial discretion, and criminal accountability cannot be bargained away, with or without Justice David Ashton-Lewis.
Yes, procedurally they can attempt to settle but the settlement has sharp legal limits and cannot do what many assume it can.
Justice David Ashton-Lewis was appointed to chair the Commission of Inquiry (COI). In law, the COI itself is not a permanent legal person. Once it delivers its report, it effectively dissolves. The appointing authority is the President acting on executive advice, represented in court by the State (Attorney-General / Solicitor-General).
On that narrow basis:
- The JSC and the State can agree to discontinue or settle the judicial review proceedings.
- Justice Ashton-Lewis’s consent is not legally required to end the litigation.
However, and this is the critical point, they cannot lawfully “settle away” the truth, legality, or consequences of the COI report.
A settlement can:
- stop the court from ruling on the validity of the COI report;
- withdraw or abandon the JSC’s challenge.
A settlement cannot:
- convert contested findings into legal nullities;
- erase historical facts;
- bind third parties not before the court;
- shield individuals from criminal or disciplinary consequences.
Justice Ashton-Lewis may not be a party to the settlement, but his findings do not evaporate simply because the litigants walk away. They remain a public document unless formally quashed by a court.
That is why the court is cautious: it is being asked, in effect, to endorse a settlement that may have constitutional and public-interest consequences far beyond the parties before it.
What happens to police investigations launched because of the COI?
They are entirely unaffected. This point is legally clear and often misunderstood. Police investigations are grounded in:
- criminal law,
- evidence,
- reasonable suspicion,
- and statutory duty.
They are not dependent on:
- the survival of a COI report,
- the outcome of judicial review proceedings,
- or any settlement between state institutions.
Even if:
- the COI report were withdrawn,
- criticised,
- or declared flawed, any police investigation already commenced remains lawful and must proceed on its own merits.
- A COI report is not evidence in the criminal law sense.
- It is an investigative trigger, not a prosecutorial foundation.
- Once police have independent material, witness statements, documents, or admissions, the inquiry has done its job.
Put bluntly, criminal liability does not depend on the comfort level of the JSC or the acting Attorney-General. Any attempt, explicit or implicit, to use a civil settlement to:
- discourage police,
- delay investigations,
- or suggest matters are now “resolved” would itself raise serious rule-of-law concerns.
What if police investigations relied heavily on the COI findings?
Even then, the legal position does not change. Police may:
- reassess evidence,
- discard flawed aspects,
- proceed on independently verifiable material.
What they cannot do is lawfully abandon an investigation solely because the JSC and the State have settled a judicial review case.
If they did, that decision would itself be vulnerable to challenge as:
- improper purpose,
- abdication of duty,
- or external interference.
The Bigger Picture (Why This Matters)
This is precisely why the settlement is so controversial. If the COI findings are wrong, they should be tested and struck down by a court; the findings are right, they should stand and be acted upon.
A settlement does neither. It freezes the law in an ambiguous space where:
- no court ruling exists,
- political actors declare closure,
- and complainants and investigators are left navigating uncertainty.
But legally, one thing remains firm.
Police investigations, prosecutorial discretion, and criminal accountability cannot be bargained away, with or without Justice David Ashton-Lewis.
From Fijileaks Archive, 23 October 2025
