The High Court in Suva is set to announce its ruling today regarding the legality of Prime Minister Sitiveni Rabuka’s advice to President Ratu Naiqama Lalabalavu, which led to the termination of Barbara Malimali from her position as the Commissioner of the Fiji Independent Commission Against Corruption (FICAC). The case is being overseen by Justice Dane Tuiqereqere.
During previous hearings, it was argued that the Prime Minister lacked the constitutional authority to revoke Malimali’s appointment, a point emphasized by her attorney, Tanya Waqanika. Waqanika contended that Rabuka’s actions were unconstitutional and violated the FICAC Act, indicating that Malimali was denied her right to natural justice.
Malimali’s dismissal occurred in June of last year amid controversies surrounding her appointment, particularly following a Commission of Inquiry report. Waqanika insisted that the President couldn’t constitutionally dismiss Malimali based solely on the Prime Minister’s recommendation.
Deputy Solicitor General Eliesa Tuiloma, representing the President and the Attorney General’s office, countered that the Prime Minister’s advice was constitutionally valid. He articulated that the President has the prerogative to act in the public interest, referring to sections 81 and 82 of the constitution that outline the executive authority vested in the President. Tuiloma acknowledged the shortcomings of the Judicial Service Commission (JSC) that recommended Malimali’s appointment without adequate vetting and revealed undisclosed character issues related to her past.
Tuiloma urged the dismissal of Waqanika’s application, arguing that the President has the legal right to consult the Prime Minister, who heads the government and cabinet, defending the notion that the President’s executive powers are not subject to judicial review when exercised in the public interest.
Additionally, Senior lawyer Simione Valenitabua, representing the Prime Minister, supported that Rabuka had constitutional grounds to advise the President, asserting that the President operates independently of the JSC recommendations.
Justice Tuiqereqere is also expected to rule on a request for judicial review concerning four individuals implicated in the Commission of Inquiry report. These individuals, which include Malimali, Fiji Law Society President William Wylie Clarke, former President Laurel Vaurasi, and former Attorney-General Graham Leung, are seeking to challenge the report’s validity and have the findings and recommendations annulled.
As the court prepares to deliver its decisions, this case marks a significant moment in Fiji’s governance, showcasing the delicate balance of powers among the branches of government while raising important questions about accountability and the rule of law. The outcome may set important precedents for how similar cases are handled in the future, reinforcing the need for transparency and due process in public appointments and governance.
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