Tanya Waqanika, a lawyer based in Suva, has asserted that “no one is above the rule of law” following a significant courtroom success for her client, former FICAC Commissioner Barbara Malimali. Outside the High Court in Suva, Waqanika expressed her nerves as she addressed the press after Justice Dane Tuiqereqere ruled favorably on Malimali’s judicial review application. “It’s been a long, long journey,” Waqanika shared, reflecting on the emotional toll of her client’s dismissal and fight for justice, stating, “I know what it’s like because I’ve been through the same.”
With the ruling now in place, Waqanika confirmed that she will consult with Malimali about her potential reinstatement as Commissioner. She also highlighted that it is the Judicial Services Commission (JSC) that holds the authority to recommend appointments or removals to the President, countering any claims to the contrary.
Barbara Malimali, a lawyer and former Human Rights and Anti-Discrimination Commissioner, was appointed to lead the Fiji Independent Commission Against Corruption (FICAC) on September 5, 2024. Her legal battle began in June of the previous year following a controversial removal that heightened discussions surrounding the powers of the presidency and the autonomy of the anti-corruption agency.
The conflict was rooted in Section 5 of the FICAC Act 2007, among other legal statutes, and reached a pivotal moment when Justice Tuiqereqere dismissed the legal basis proposed by the Commission of Inquiry (COI). The COI had argued that the President’s actions could only be advised on specific issues defined in the Constitution, attempting to invalidate the JSC’s role in the FICAC appointment process.
Justice Tuiqereqere criticized this interpretation as “strained” and lacking legal soundness, emphasizing that such reasoning ignored the Constitution’s language. He affirmed that the JSC plays a constitutionally prescribed role, thereby allowing it to appropriately advise the President under relevant laws, which reinforced the validity of the FICAC Act.
The ruling not only challenges the COI’s authority but also strengthens the distinct separation between political power and independent bodies as defined in Fiji’s 2013 Constitution. This decision marks a hopeful turn in protecting the integrity of independent institutions in the country, ensuring that the foundations of law and governance are upheld.
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