The High Court is poised to deliver its ruling today on the constitutional authority of the President to dismiss Barbara Malimali from her role as the Commissioner of the Fiji Independent Commission Against Corruption (FICAC), following the advice of Prime Minister Sitiveni Rabuka. This case is under review by Justice Dane Tuiqereqere.
During previous hearings last year, it was contended that Prime Minister Rabuka did not possess the constitutional authority to recommend that President Ratu Naiqama Lalabalavu revoke Malimali’s appointment. Malimali’s attorney, Tanya Waqanika, argued that the Prime Minister’s actions contravened the constitution and relevant acts, stressing that Malimali had not received fair treatment before her removal from the position.
Malimali was dismissed in June of the previous year amid allegations regarding her appointment, highlighted by a Commission of Inquiry report. Waqanika maintained that the President lacked the constitutional power to act solely on the Prime Minister’s recommendation regarding her dismissal.
In defense of the President and the Attorney General’s office, Deputy Solicitor General Eliesa Tuiloma argued that the Prime Minister’s advice was constitutionally sound. He emphasized that the President acted within his prerogative as the head of state for the welfare of the public. Tuiloma cited sections 81 and 82 of the constitution, which address the execution of presidential powers on the advice of the Prime Minister.
Tuiloma acknowledged oversights in the Judicial Services Commission’s (JSC) recommendation of Malimali, indicating that significant character disclosures, including past events during her tenure in Tuvalu, were not revealed. He argued that this prior information rendered her appointment invalid from the start and that the President was justified in consulting the Prime Minister, suggesting that actions taken in the public interest fall outside the purview of judicial review.
Simione Valenitabua, a senior lawyer representing the Prime Minister, affirmed Rabuka’s constitutional right to advise the President, clarifying that the President is expected to make decisions based on various recommendations and not just those from the JSC.
In addition to this ruling, Justice Tuiqereqere will also review a request for judicial consideration concerning four individuals associated with the contentious Commission of Inquiry report. This group includes Malimali, Fiji Law Society President William Wylie Clarke, former president Laurel Vaurasi, and former attorney-general Graham Leung. The applicants are contesting findings and recommendations of the report pertaining to the legitimacy of Malimali’s appointment.
As the court readies to announce its decision, the outcome could have far-reaching effects on governance and accountability within Fiji, highlighting the importance of maintaining constitutional integrity in governmental processes. This ruling is anticipated to serve as a critical point in the ongoing discourse surrounding executive power and public trust in governmental institutions.