The High Court is set to announce its ruling today regarding the authority of the President to terminate Barbara Malimali’s position as the Commissioner of the Fiji Independent Commission Against Corruption (FICAC), based on advice from Prime Minister Sitiveni Rabuka. This case is being adjudicated by Justice Dane Tuiqereqere.
During last year’s hearing, it was argued that Prime Minister Rabuka lacked the constitutional authority to advise President Ratu Naiqama Lalabalavu in revoking Malimali’s appointment. Malimali’s attorney, Tanya Waqanika, highlighted that the Prime Minister’s actions were inconsistent with the constitution, the interpretation act, and the FICAC Act. Furthermore, Waqanika asserted that Malimali had not been afforded natural justice prior to her dismissal.
Malimali was removed from her position in June of the previous year following allegations surrounding her appointment, which were brought to light in a Commission of Inquiry report. Waqanika maintained that the President did not possess the constitutional power to dismiss Malimali based solely on the Prime Minister’s recommendation.
In defensively representing the President and the Attorney General’s office, Deputy Solicitor General Eliesa Tuiloma contended that the Prime Minister’s advice was constitutionally valid and indicated that the President acted within his prerogative power as the head of state for the public good. Tuiloma referenced sections 81 and 82 of the constitution to support his claim regarding the President’s executive authority being exercised on the advice of the Prime Minister.
Admitting mistakes in the Judicial Services Commission’s (JSC) recommendation of Malimali’s appointment, Tuiloma mentioned that she had failed to disclose significant character information, including past incidents from her tenure in Tuvalu. He argued that this made her appointment invalid from the outset and that the President was entitled to consult the Prime Minister, emphasizing that the execution of presidential powers in the public interest is not subject to judicial review.
Senior lawyer Simione Valenitabua, representing the Prime Minister, asserted that Rabuka possesses the constitutional right to advise the President, noting that the President’s role is to make decisions based on recommendations rather than exclusively following JSC advice.
In conjunction with this ruling, Justice Tuiqereqere will also deliberate on a request for judicial review concerning four individuals linked to the controversial Commission of Inquiry report. These individuals include former FICAC commissioner Barbara Malimali, Fiji Law Society President William Wylie Clarke, immediate past president Laurel Vaurasi, and former attorney-general Graham Leung. The applicants are challenging the findings and recommendations of the report, which relate to the validity of Malimali’s appointment.
As the court prepares to announce its decision, the implications of the ruling could significantly influence the legal landscape surrounding governance and accountability in Fiji.