The Commission of Inquiry (COI) into the appointment of Barbara Malimali as Commissioner of the Fiji Independent Commission Against Corruption (FICAC) has determined that her appointment was unconstitutional, underscoring significant issues regarding the separation of powers within the Fijian government structure. The inquiry revealed that the Judicial Services Commission (JSC), which played a role in Malimali’s appointment, does not possess the legal authority to appoint or discipline the head of FICAC. This raises concerns about judicial independence, particularly affecting key judiciary figures such as the Chief Justice and senior judges.
Prime Minister Sitiveni Rabuka indicated that these findings would inform a forthcoming constitutional amendment process aimed at addressing such inconsistencies within the governance framework. He stated that the government’s approach to revising the constitution, particularly concerning appointments to significant positions like that of FICAC Commissioner, would be subject to thorough review.
Janet Mason, a counsel assisting the COI, elaborated on the complexities found in the 2013 Constitution that led to the inquiry’s conclusions. The constitutional provisions lack clarity on the appointment process for the FICAC Commissioner, thereby complicating the roles of both the JSC and the President in these appointments. This disjointed framework contradicts the expectation that such significant appointments should involve the Prime Minister or Cabinet, leading to a declaration that both Malimali’s and the acting Deputy Commissioner Lisiale Fotofili’s appointments were invalid.
Furthermore, contrasting practices observed in countries like Australia, New Zealand, and the United Kingdom highlight a trend toward independent appointments by public servants or bipartisan committees, rather than involving the judiciary in political appointments. The COI advised that Fiji might benefit from adapting a similar model, possibly creating a more independent and accountable process for such critical appointments.
Comments from the Fiji Law Society echo the inquiry’s findings, expressing concern about the authority held by the JSC and calling for structural reforms that promote transparency and accountability in governance. Legal experts expect that the inquiry’s results could catalyze necessary changes to reinforce public trust in the integrity of governmental institutions.
The ongoing examination into Malimali’s appointment presents not just challenges but also an opportunity for transformative reform in Fiji’s legal and governance structures. By addressing these issues, the Fijian government may pave the way for improved accountability and public confidence in its institutions.
This situation is seen as a pivotal moment for Fijian governance, with potential for positive change if the deficiencies identified are fully addressed, fostering an environment of greater transparency and improved functioning of the justice system in Fiji.
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