Suva, Fiji – Prime Minister Sitiveni Rabuka has confirmed he made the final decision to appeal a High Court ruling that found the dismissal of Barbara Malimali as Fiji Independent Commission Against Corruption (FICAC) Commissioner unlawful. The move comes despite reported advice from the Attorney-General’s Office against pursuing an appeal, and raises questions about the future of the Prime Minister himself, as he previously indicated his position was contingent on the outcome of the legal challenge.
The appeal, filed today, seeks to overturn Justice Dane Tuiqereqere’s February 2nd ruling, which stated that the President of Fiji should appoint the FICAC Commissioner on the advice of the Judicial Services Commission, and that Rabuka lacked the authority to remove Malimali from her post. The Prime Minister stated he was personally affected by the ruling and felt compelled to seek further judicial review of the matter. The core of the appeal centers on constitutional issues surrounding the appointment process for the head of the anti-corruption body.
Rabuka revealed his personal involvement in the decision, stating, “I made the recommendation to the President myself.” He also emphasized his continued support for the appointment of Lavi Rokoika as Acting FICAC Commissioner, asserting that the decision was his alone, regardless of any advice received. The appeal papers specifically request the court preserve the status quo, allowing Rokoika to remain in his acting role during the proceedings.
The legal challenge argues that Justice Tuiqereqere’s ruling contained errors in law, particularly in interpreting the relationship between the FICAC Act and Section 82 of the Constitution of Fiji. It also raises concerns regarding constitutional hierarchy and the application of the doctrine of necessity. Rabuka is seeking declarations that Malimali’s appointment was unlawful and that Section 5 of the FICAC Act, which requires the President to act on the advice of the Judicial Services Commission, is unconstitutional.
Constitutional Questions at the Forefront
The appeal will provide the courts with an opportunity to determine key constitutional issues, including the lawful process for appointing the FICAC Commissioner, according to Rabuka. He stated that the matter raised about the appointment of Acting FICAC Commissioner Lavi Rokoika will also be addressed during the appeal. This suggests the government intends to clarify the legal framework governing the appointment and removal of the FICAC Commissioner to prevent future disputes.
Tanya Waqanika, Malimali’s lawyer, has confirmed receipt of the notice of appeal, signaling the start of the formal legal proceedings. The appeal papers were served to Waqanika today as Malimali’s legal representative.
Prime Minister’s Future Linked to Appeal Outcome
Rabuka had previously indicated he would consider stepping down as Prime Minister depending on the outcome of the appeal. When questioned about whether that remained his position, he responded that the decision would depend on the success or failure of the appeal, and the matter would be dealt with accordingly. This suggests the outcome of the legal battle could have significant implications for the political landscape in Fiji.
The Prime Minister also dismissed concerns about going against the advice of the Attorney-General’s Office, reiterating that the decision to appeal was his own. He further emphasized his personal responsibility for appointing Rokoika, stating that the advice he received was irrelevant to his decision.
The initial ruling by Justice Tuiqereqere on February 2nd centered on the constitutional role of the President in appointing the FICAC Commissioner. The judge found that the President is obligated to act on the advice of the Judicial Services Commission, effectively invalidating Rabuka’s decision to dismiss Malimali. Fijivillage reported on the initial ruling.
The appeal represents a significant escalation in the dispute over the independence and authority of the FICAC, an institution crucial to combating corruption in Fiji. The outcome of this legal battle will likely shape the future of anti-corruption efforts in the country and could have broader implications for the rule of law.
As the case progresses through the courts, all eyes will be on the arguments presented and the ultimate decision reached. The legal proceedings are expected to shed light on the interpretation of key constitutional provisions and the proper balance of power between the executive, the judiciary, and the Judicial Services Commission.
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