The High Court has dismissed claims that the Judicial Services Commission (JSC) was “constitutionally paralysed,” affirming that the Commission is still capable of addressing matters related to the appointment of the Fiji Independent Commission Against Corruption (FICAC) commissioner. The ruling was issued today by Justice Dane Tuiqereqere, who highlighted that the arguments presented by the respondents lacked both legal and factual support, particularly in asserting that the Prime Minister had the authority to advise the President to revoke Barbara Malimali’s appointment.
Justice Tuiqereqere articulated that the findings from the Commission of Inquiry (COI) did not substantiate claims of the JSC’s incapacity. The court acknowledged the critical tone of the COI towards certain JSC members but clarified that this criticism does not undermine the Commission’s ability to function effectively.
The judge noted, “In effect, the respondents suggest that on the basis of the COI findings, the members of JSC were compromised,” but he firmly stated that this argument was not valid. He further explained that even though two members of the five-member JSC faced scrutiny, enough unchallenged members remained to fulfill their quorum and make informed decisions.
Justice Tuiqereqere emphasized the JSC’s position to deliberate on the COI’s conclusions and determine whether to recommend to the President the revocation of Ms. Malimali’s appointment or any other action deemed appropriate. The court also dismissed suggestions that the President could act on the Prime Minister’s advice under the doctrine of constitutional necessity, citing a lack of evidence demonstrating the JSC’s functional incapacity.
In his assertion, he concluded, “The short answer is that I do not accept that JSC was functionally incapacitated.” This ruling is part of a broader decision affirming the unlawful removal of Ms. Malimali as FICAC commissioner, reiterating the necessity of adhering to constitutional and statutory procedures, even amidst politically sensitive issues. The court’s stance underscores the importance of maintaining institutional integrity and accountability within Fiji’s governance structures.
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