'Unfit and Improper': Inquiry Lays Bare Judicial Overreach

The Commission of Inquiry (COI) into the appointment of Barbara Malimali as Commissioner of FICAC not only concluded that the appointment was unlawful, but that having the Judicial Services Commission (JSC) make the appointment is inconsistent with the separation of powers.

The inquiry emphasised that the FICAC Commissioner was a political appointment and not a judicial one.

Furthermore, the JSC's involvement in the appointment compromised the independence of the judiciary-particularly the Chief Justice, Chief Registrar, and senior members of the judiciary.

Prime Minister Sitiveni Rabuka said this concern would be addressed in the constitutional amendment case which the Government had filed in the Supreme Court.

"That will come up in the amendment measures that Government would like to legislate, as far as the Fiji Independent Commission Against Corruption and other constitutional offices in the Constitution," he said.

"Those will have to be looked at in the whole question of the review or amendment of the Constitution."

The COI concluded that the JSC does not have the legal mandate to appoint or discipline the head of FICAC and pointed to flaws in the 2013 Constitution.

Counsel assisting the COI, Janet Mason, explains in detail in this week's column how and why the inquiry came to this conclusion.

How was the appointment of Barbara Malimali illegal under the 2013 Constitution?

A: If you examine Section 82 of the Constitution carefully, you'll see there are three ways the President can be advised: by Cabinet, a Minister, or another entity-only if both the entity and its function are expressly included in the Constitution.

However, there is another anomaly.

The Constitution is unclear here. Under Section 104, the JSC undertakes functions that are not clearly authorised, including setting the remuneration for the FICAC Commissioner.

Section 115(12) of the Constitution states that the remuneration of the Commissioner and Deputy Commissioner shall be determined by the President, acting on the advice of the JSC, following consultation with the A ttorney-General.

This makes the process messy. Returning to Section 82, which outlines who may advise the President, it becomes apparent that there is no constitutional appointment process for the FICAC Commissioner.

If Section 5 of the FICAC Act is invalidated, the process begins from a blank slate.

Because of the position's significance, it was thought that the Prime Minister or Cabinet should advise the President. This led to the finding that both Ms Malimali's and Mr Fotofili's appointments were invalid, and had to be revoked.

Suspending Ms Malimali assumed her appointment was valid-hence, both the suspension and the appointment were revoked.

While the terms of reference focused on Ms Malimali's appointment, they were broad enough to explore related matters. The inquiry therefore also examined policy implications and structural issues in the Constitution, particularly JSC provisions from Section 104 onwards.

Why should the JSC not appoint the head of FICAC?

A: The Commissioner of FICAC is not a judicial officer as defined in the Constitution. An individual heading an investigatory and prosecutorial body is not-and cannot be-a judicial officer.

The deeper issue lies in the Constitution's structure. A ssigning a political appointment role to the judiciary, particularly to the Chief Justice, compromised judicial independence. FICAC has broad powers-unlike the Police and ODPP, which separate investigation and prosecution, FICAC does both. This power has historically been subject to abuse, with claims it was used to target opponents or bury cases.

The JSC's role in such an appointment dragged senior judiciary members into politics-an anomaly not found in other jurisdictions.

What countries did the inquiry consider?

A: The inquiry examined five countries: Australia, New Zealand, the United Kingdom, the United States (via the FBI), and Hong Kong. None involved senior judiciary members in appointing anti-corruption heads. Appointments were often made by senior public servants, ministers, or bipartisan parliamentary committees.

The COI proposed that Fiji consider a model like the Constitutional Offices Commission (COC), which includes both the Prime Minister and the Leader of the Opposition- offering a more bipartisan approach.

In conclusion, the COI found that the JSC's role in appointing the FICAC Commissioner was inconsistent with the separation of powers and undermined the JSC's independence, particularly of its senior members.

• PART TWO--Continued from last weekend - Part 1 Story below;

https://fijisun.com.fj/2025/06/09/inquiry-why-is-malimalis-appointment-unlawful-the-blunders-of-the-2013-constitution/

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