Suva lawyer Barbara Malimali told the Suva Magistrates’ Court on Thursday that new evidence shows Lavi Rokoika knew — or at the very least ought to have known — her appointment as Acting Commissioner of the Fiji Independent Commission Against Corruption (FICAC) was invalid and that the defect was publicly known. The submission underpins an application by Suva lawyer Tanya Waqanika for a permanent stay of corruption charges brought against her by FICAC.
Malimali, representing Waqanika, said it was “not disputed” that challenges to Rokoika’s appointment were in the public domain and that this was not a case where an irregularity was hidden or obscure. The contention is central to Waqanika’s argument that the proceedings instituted by FICAC should be permanently stayed because the person who headed the agency at the relevant time lacked lawful authority.
A piece of evidence that Malimali described as unchallenged was an off‑record interview between Rokoika and MaiTV journalist Lavenia Lativerata. That interview, Malimali said in court, demonstrates the Judicial Services Commission (JSC) played no role in Rokoika’s appointment. Under the current legal framework, Malimali added, the Prime Minister was aware that the JSC — not the executive alone — is the lawful appointing authority for the office in question.
When those facts were read together, Malimali argued, it left little room for invoking the so‑called de facto doctrine — a legal principle that can validate acts done by someone acting under colour of official title even if their appointment is later found invalid. “Reliance on the de facto doctrine is wholly misplaced and cannot be invoked where the defect was known and openly challenged,” she told the court, cautioning that allowing unlawful appointments to stand protected by the doctrine would undermine the rule of law and the constitutional framework governing public appointments.
Rokoika’s legal team, the court was told, has filed submissions and led evidence over the past two days in response to the permanent stay application, but Malimali maintained that the documentary and interview evidence showed the defect was apparent to both the appointee and to the public. Waqanika’s application concerns two former senior government officials and challenges the legality of the prosecutions FICAC commenced while Rokoika was acting commissioner.
Justice Siainiu Fa’alogo Bull is due to hand down her ruling on the stay application on May 6. The judge’s decision will determine whether the charges against Waqanika — and by extension the proceedings tied to the contested appointment — can proceed, or whether they must be permanently stayed because the lawfulness of the authority that brought the prosecutions is in doubt.
The case exposes a legal and constitutional flashpoint over appointment powers and agency legitimacy. If the court accepts the argument that the appointment defect was publicly known and that reliance on a de facto officer cannot cure that defect, the ruling could have implications for any prosecutions or administrative acts undertaken by FICAC during Rokoika’s tenure as acting commissioner.
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