Inquiry: Why is Malimali’s appointment unlawful, the blunders of the 2013 Constitution.

One of the significant conclusions of the Commission of Inquiry (COI) was that the unlawful appointment of Barbara Mamalimali as the Commissioner of the Fiji Independent Commission Against Corruption (FICAC), stems from the way the 2013 Constitution is set out.

Following approvals from the President, Ratu Naiqama Lalabalavu, and Prime Minister Sitiveni Rabuka, counsel assisting the COI, Janet Mason, in part one of a twopart series, details the conclusion of the COI contained in the report of why the Judicial Services Commission (JSC) is not legally mandated to appoint or discipline the head of the FICAC.

Q: Why is it important to highlight the conclusion of the COI?

A: There have been a lot of commentaries around this, much of it are from the lawyers saying that the appointment or the disciplinary measures or the revocation that has occurred of the previous commissioner was not consistent with the Constitution.

And then some further commentary saying that all appointment and disciplinary issues relating to FICAC Commissioner and Deputy Commissioner should go through the JSC. We really haven’t been able to say much about that until now.

Q: What led to this conclusion by the COi?

A: All of these came to a hit when the COI became worried, his Lordship, Justice David Ashton-Lewis, and I became worried about the integrity of the process. In December, I had written to the chair of the JSC.

We met and raised with him that we were quite worried because we wanted to have a number of FICAC witnesses, and if Ms Malimali stayed there as the head of FICAC, then there was a possibility that the evidence given to the COI would be affected, they wouldn’t be as open as they should be.

This was raised as an issue. We also had said that it was just normal protocol so when a senior member of public service or a politician or Member of Parliament is under investigation or implicated in something and there’s an investigation, the usual practice is for that person to step down or be suspended. So, that’s when it started.

It became quite intense when Kuliniasi Saumi was summarily dismissed.

Mr Saumi had made a recording of a meeting which had been attended by four lawyers and the chief registrar.

And, it was in that meeting that they secured the release of Ms Malimali, who had been arrested that morning.

One of the four lawyers who was there had written to Ms Malimali, and put in a complaint that Mr Saumi was recording part of the meeting.

Mr Saumi was dismissed, and we wanted to recall him along with other FICAC witnesses.

Q: How did the COi form the conclusion that the JSC had no legal mandate to appoint or discipline the head of FICAC?

A: I went through what these Constitutional provisions mean and what do they say and then formed an opinion that both the JSC and the Prime Minister could advise the President.

So that was the first issue. And then we sought the opinion of Professor Philip Josephs, who is the leading academic in New Zealand on constitutional issues and he’s also a KC.

He agreed that under section 82, the Prime Minister could recommend to the President and that was an alternative to the JSC, but also that the JSC had the power to suspend Ms Malimali because at that time the JSC was saying they didn’t have the power to suspend Ms Malimali.

This discussion with Professor Philip Joseph went on some more so the situation changed a little bit and there were a number of different circumstances.

The suspension was seen as quite different from Ms Malimali’s appointment. Some correspondence was dealt with in relation to a suspension, but then the more I looked at it, it looked quite troublesome.

So, if you go to section 82, now that section talks about the powers of the President and how he or she can exercise the executive authority of the State, which is vested in the president.

The President can act only. When we see that word only, it means the president can’t do anything else. He doesn’t have the discretion; he must follow the advice of these people – the first one says on the advice ‘of

Cabinet or a Minister or of some other body or authority’ prescribed by the Constitution, so that’s fine, that’s the JSC, so that’s the body that is prescribed in the Constitution.

It then goes on to say, ‘for a particular purpose as the body or authority on whose advice the President acts in that case’.

What that all means when you break it down is that, that body, which is the JSC, the advice its given to the President, or whatever task it has been given, must come from the Constitution.

It can’t be just an ordinary legislation. If you see Section 104 of the Constitution and read onwards, you can see that the function to appoint the Commissioner of FICAC is not there.

You must go to section 5 of the FICAC Act, which says that the ‘Commissioner shall be appointed by the President on the recommendation of the JSC, following consultation by the JSC with the Attorney-General’.

So, you’ve got a constitution that says that the president can be advised by the JSC because the JSC is included in the Constitution.

But, the JSC’s function of appointing the Commissioner or the Deputy Commissioner is set out in legislation, ordinary legislation, it’s not set out in the Constitution.

So, what that means is that this section 5 in the FICAC Act is what lawyers would term ultra vires. So, what we are saying is that it is invalid.

So, I had written an opinion on this and then we sent it off to Professor Philip Joseph for his second opinion, and he came back, and he agreed with all of that.

When the COI got that information together, it appeared clear that the JSC really had no role at all in the appointment and the disciplining of the FICAC Commissioner.

If you go to section 2 of the constitution, it says that the constitution is the supreme law of the state, and then it goes on to say, ‘subject to the provisions of this Constitution, any law inconsistent with this Constitution is invalid to the extent of that inconsistency’.

So, that means that section 5 of the FICAC Act, the appointment provision, is invalid.

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