Janet Mason, the senior counsel assisting Fiji’s Commission of Inquiry (CoI) into the legality of FICAC Commissioner Barbara Malimali’s appointment, has defended the use of a secret recording submitted as evidence in the inquiry.
She argued that its inclusion was not unlawful, despite a section in the FICAC Act 2007 that prohibits the disclosure of official information without proper approval.
“We don’t think it was unlawful,” Mason told Mai TV when asked whether the recording—made without the consent of those involved—should have been used. “The judge ruled that it was admissible.”
In its second letter to the Judicial Services Commission, requesting Malimali’s temporary suspension, the CoI justified admitting the recording as evidence by citing Section 9(b) of the Commission of Inquiry Act 1946. This section grants commissioners broad powers to accept any evidence, whether written or oral, even if it would not normally be admissible in civil or criminal proceedings.
Section 9(b) of the COI Act 1946 – On the Powers of the Commissioner states:
The Commissioners shall have the following powers:
(a) to issue summonses to witnesses in the form prescribed in the Schedule and to call for the production of books, plans, and documents, and to examine witnesses and parties on oath;
(b) to admit any evidence, whether written or oral, and whether or not such evidence would be admissible in civil or criminal proceedings;
(c) to admit or exclude the press from any meeting of the Commissioners;
(d) to exclude any person if necessary to ensure the due conduct of the inquiry or to preserve order;
(e) to enter upon any land to obtain information that may assist the Commissioners.
When questioned about how the stance aligns with the FICAC Act 2007, a section of which prohibits the unauthorised disclosure of official information, Mason maintained the CoI’s position.
Section 13G of the FICAC Act 2007 – Divulging Official Information states:
(1) No officer or former officer of the Commission, nor any member or former member of its staff, shall, without the written permission of the Commissioner, publish or disclose to any person—except:
(a) in the case of an officer or staff member, in the exercise of his or her official functions;
(b) in the case of a former officer or staff member, under no circumstances whatsoever—
any document, communication, or information related to the functions of the Commission that has come to his or her knowledge in the course of their duties.
(2) Any person who contravenes subsection (1) commits an offence and, upon conviction, shall be liable to a $10,000 fine and two years’ imprisonment.
(3) A criminal prosecution and sanction may be pursued in addition to any disciplinary action imposed on the officer for the same conduct.
“No, because the Commission’s view is that there is no law preventing Mr. [Kuliniasi] Saumi from making the recording. The judge ruled that it was admissible.”
The recording, made by former FICAC Manager of Investigations Kuliniasi Saumi, captured a meeting on 5 September 2024, where senior legal officials allegedly intervened to secure Malimali’s release following her arrest by FICAC officers. The transcript of the recording, included in Saumi’s affidavit, was accepted as evidence under the COI Act 1946. Saumi’s role in disclosing the recording led to his dismissal by Malimali on 24 January 2025. The CoI suggested that this may amount to witness interference and obstruction of justice under the Crimes Act 2009.
Hearings have been ongoing for five weeks since early last month and will conclude next week, after which the CoI will compile its report.
The report is now due to be submitted to the Prime Minister and President by the end of the first week of March.
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