Shine a light: JSC to decide Malimali’s reinstatement

The future of Barbara Malimali as Fiji Independent Commission Against Corruption (FICAC) Commissioner now rests with the Judicial Services Commission (JSC) following a landmark High Court ruling that declared her removal unlawful.

Justice Tuiqereqere ruled that only the JSC — and not the Prime Minister — has the constitutional authority to advise the President on the appointment or removal of the FICAC Commissioner.

Ms Malimali is seeking reinstatement to her former position, along with general and special damages, interest and costs. However, the court left all consequential matters to be determined by the JSC.

At the centre of the case was the constitutional question of who is authorised to advise the President on FICAC appointments. Ms Malimali had challenged her removal by the President, Ratu Naiqama Lalabalavu, which was done on the advice of Prime Minister Sitiveni Rabuka.

Justice Tuiqereqere found that the Prime Minister’s advice was unconstitutional, holding that the JSC is the only body empowered to make such recommendations under section 115 of the 2013 Constitution, read together with section 5 of the FICAC Act 2007.

In his ruling, Justice Tuiqereqere directed the JSC to independently assess all outstanding matters, including whether any findings of the Commission of Inquiry (CoI) impact Ms Malimali’s suitability for office.

“JSC must independently decide itself what to make, if anything, of the CoI evidence, findings and recommendations as they pertain to the appointment of Ms Malimali,” he said.

The CoI had raised concerns over alleged non-disclosures by Ms Malimali during her appointment process, including an alleged failure to disclose a FICAC complaint against her and a denial of a practising certificate in Tuvalu in 2016.

Justice Tuiqereqere said the JSC would need to consider whether section 112 of the Constitution — which deals with removal for misbehaviour — applies to the alleged non-disclosures.

Under section 112, removal for misbehaviour requires the establishment of a tribunal to investigate the allegations and report to the President with recommendations.

Following a meeting earlier this week, JSC members confirmed they would invite Ms Malimali, as well as legal counsel for the State and the Prime Minister, to present their views on compliance with the High Court’s orders.

The JSC said it would then, in consultation with the Acting Attorney-General, make its own independent recommendation to the President. The commission aims to conclude the matter on or before March 31, 2026.

Constitution versus advice

Justice Tuiqereqere’s ruling raised serious concerns about the legal advice relied upon by the Prime Minister and President.

The court found that the Commission of Inquiry had misinterpreted the Constitution, particularly section 82, in concluding that the Prime Minister could lawfully advise the President on the removal of the FICAC Commissioner.

While lawyers for the President, Prime Minister and Attorney-General accepted that the JSC has the power to advise the President, they argued that the Prime Minister could step in because the JSC was allegedly “paralysed” due to two of its senior members being implicated in the CoI.

The court rejected this argument.

Justice Tuiqereqere held that section 115 of the Constitution, together with the FICAC Act, clearly places the appointment process within the JSC’s authority and that the Constitution deliberately preserved the existing statutory framework under the FICAC Act.

“The reason is that when the 2013 Constitution was enacted, there was already provision for the appointment of a commissioner and deputy commissioner in the FICAC Act,” the ruling said.

He also emphasised that the JSC’s involvement aligns with its constitutional obligation to operate independently and free from political interference, consistent with other independent offices such as the Director of Public Prosecutions.

Justice Tuiqereqere noted that the JSC’s role in appointments is further reinforced by its responsibility for setting remuneration for the FICAC Commissioner and Deputy Commissioner under section 115(12) of the Constitution.

The High Court ruling is binding, leaving the final decision on Ms Malimali’s reinstatement squarely in the hands of the Judicial Services Commission.