High Court rules Malimali’s dismissal unlawful

The High Court has ruled that the dismissal of Barbara Malimali as Commissioner of the Fiji Independent Commission Against Corruption (FICAC) was unlawful, finding that the Prime Minister had no legal authority to advise her removal.

In his decision delivered this morning, High Court Judge Justice Dane Tuiqereqere said the Constitution is clear that the FICAC Commissioner is appointed by the President on the advice of the Judicial Services Commission (JSC), not the Prime Minister.

Justice Tuiqereqere ruled that Prime Minister Sitiveni Rabuka therefore did not have the power to advise the President to revoke Malimali’s appointment.

The judge rejected arguments that the JSC was temporarily unable to function because of Solicitor-General Ropate Green’s involvement in a Commission of Inquiry. He said he did not accept that the JSC was constitutionally “paralysed” at the time and confirmed that it remains the proper body to advise the President on matters relating to the FICAC Commissioner.

However, Justice Tuiqereqere said the court was not in a position to determine whether Malimali should be reinstated. He said the matter must now be considered by the JSC, including the appointment of Lavi Rokoika as Acting FICAC Commissioner.

No damages were awarded, but the court ordered each of the respondents to pay Malimali $7,500 in costs.

Malimali challenged her dismissal in June last year following the release of a Commission of Inquiry report.

Meanwhile, Malimali’s lawyer, Tanya Waqanika, speaking to media outside the High Court in Suva, said the President had acted on the advice of the Prime Minister, contrary to the law, which requires advice from the JSC.

Waqanika said the ruling confirmed what the law clearly states and described the case as deeply personal, noting her own experience of losing a job. She said they would now await the JSC’s decision on the FICAC Commissioner position following the court’s ruling that Malimali’s removal was unlawful.