OK, you will have to work with me. This is not an article that can be read while you are also absent-mindedly scrolling your phone. It requires concentration (or you may be so tired of all of this that some dancing elf on TikTok might make more sense to you).
On Monday Justice Dane Tuiqereqere issued a judgment declaring unlawful the President’s dismissal, in May last year, of FICAC Commissioner Barbara Malimali.
For a number of professional reasons I have an interest in saying that the judgment was right – so now I have told you that, you may want to take everything I am saying with a pinch of salt.
But this story is also a lesson to the lawyers among us that sometimes it is necessary to curb our enthusiasm. It’s not always the right thing to rush out and look for a solution when there may not even be a problem.
The legal saga created before the now infamous Commission of Inquiry (COI) – and the separate legal saga created by the COI itself – all had to start somewhere, and the point of origin probably depends on your point of view.
But this case probably begins in February 2025 when, as the COI was taking its evidence (a process that took nearly three months) Commissioner Malimali sacked one of her investigators at FICAC, apparently for breaching FICAC rules by taking a secret recording of a meeting without telling the participants that they were being recorded.
The FICAC staffer, Mr Saumi, was a witness. The Commissioner, Supreme Court Justice David Ashton-Lewis and his counsel assisting, Janet Mason, decided that the sacking of Mr Saumi was interference with one of their witnesses. They immediately demanded Ms Malimali’s suspension as FICAC Commissioner.
Was that wise? The whole point of their COI was to investigate whether Ms Malimali was lawfully appointed. Now they were getting directly into a fight with the subject of their COI.
They demanded that the Judicial Services Commission, which was responsible for her appointment (I will come back to that) immediately take steps to suspend Ms Malimali. The JSC might have been better to simply say to the COI “No, we are not doing that. You do your job and we will do ours”. Instead the JSC seems to have told the COI that maybe it didn’t have the power to suspend Ms Malimali (which it clearly did).
Lightbulb moment?
So Ms Mason (who was keeping something of a running commentary going with the news media on all of this) appears to have had something of a light bulb moment (although that light bulb has now exploded – see below). If the JSC couldn’t (or wouldn’t) suspend Ms Malimali, who could?
Enter New Zealand law professor Philip Joseph KC (King’s Counsel). He signed off on a legal advice to the COI which went something like this:
• the President is the official appointor – the hirer and (if necessary) the firer – of the FICAC Commissioner. That’s in the FICAC Act
• under s.82 of the Constitution the President, however, has no power to make decisions on his own. The President acts only “on advice” (in other words, other officials have to recommend things – only then can the President sign off)
• under the Constitution the President can only take advice from a Minister, the Cabinet, or “of some other body or authority prescribed by this Constitution for a particular purpose as the body or authority on which the President acts in that case”
• the FICAC Act says that the JSC must advise the President to appoint the FICAC Commissioner
• but the FICAC Act isn’t the Constitution. And (see above) the President can only act when advised by someone “prescribed by the Constitution”
• so therefore it’s unconstitutional for the JSC to advise the President on the hiring and firing (or suspension) of the FICAC Commissioner
• so, then, who has the power to advise the President? The Prime Minister.
That last point required, in my view, a giant leap of logic. Let’s say the Constitution really didn’t allow the JSC to advise on the appointment of the FICAC Commissioner. So how is it that the PM gets the right to do it?
Professor Joseph seemed to say this was because the Prime Minister had the confidence of Parliament to be appointed PM and “head of the political executive”.
“That person, in turn,” he said “has the mandate to advise His Excellency in discharging executive power.”
Now, Professor Joseph is the law professor and – well – I am just an ordinary old lawyer with no flash initials after my name. But I am not sure you even have to be a lawyer (ordinary or otherwise) to ask: “Does that make sense?”
Isn’t the purpose of FICAC to investigate corrupt politicians and public servants and other bad guys? So now, we seem to be saying, the Prime Minister, who could be under investigation himself, is given the right to advise on the hiring and firing of the person who might be investigating him?
Anyway, it was this was the advice on which, a few months later, the Prime Minister decided to act in dismissing Ms Malimali, who was heavily criticised in the COI Report.
It’s important to record here that Ms Malimali is still in court, in another court case, attacking the COI Report and saying its conclusions were wrong. No doubt when she gets into court she will be pointing to the confrontation that she had with the COI over Mr Saumi’s dismissal.
In her legal action against the COI Report Ms Malimali seems to have plenty of company. Also in court, for the same reasons, are the former Attorney-General, Graham Leung and two Fiji Law Society Presidents, Wylie Clarke and Laurel Vaurasi.
Justice Tuiqereqere is now tasked with resolving all of these.
Also in the fray is the JSC itself, which was also criticised by the COI Report. It is apparently settling its own court case with the Government (although that settlement seems to be struggling to get finished).
When the COI Report was issued in May last year, the PM reacted by firing Mr Leung, his Attorney-General. Then he decided that Ms Malimali would also have to be fired. But who would do it?
Back to Professor Joseph’s legal advice. A solution! That seemed to give him the right, as PM, to do it. Which is what he did.
Justice Tuiqereqere did not agree.
What the Judge thought
A judge gets to write as many words as he wants. A humble The Fiji Times column writer does not. So I will have to do it more briefly (and certainly less precisely).
Section 5 of the FICAC Act (remember?) says that the Commissioner is appointed by the President on the advice of the JSC. But that isn’t the Constitution.
Justice Tuiqereqere pointed to s.115 of the Constitution, which is about FICAC. Section 115(2) of the Constitution allows for the Commissioner of FICAC to be “appointed by law”. That, together with the FICAC Act, was enough law for the Judge to decide that the JSC was the proper authority to advise the President on the hiring and firing of the FICAC Commissioner.
It would be inconsistent with the organisation of the Constitution, he said, and “somewhat peculiar” for the Prime Minister to advise the President on the appointment of the Commissioner and Deputy Commissioner of FICAC.
Not so far discussed by anyone is a little time-bomb tucked away at the back of the Constitution – s.173(4). That’s the clause which the military government added in for its own protection before it allowed elections. It says that no court may ever say that any of the Decrees it passed between 2006 to 2014 is unconstitutional.
The FICAC Decree was issued in 2007. So, if s.173(4) is right, under this Constitution, nothing in FICAC’s governing law can be declared unconstitutional, including how the Commissioner is appointed. So, together with the judgment, that seems to lock in the JSC as the FICAC Commissioner’s appointing authority.
Ironically, in defending itself from Ms Malimali, the Government didn’t actually rely on Professor Joseph’s legal opinion anyway. It argued, instead, that the JSC was “constitutionally paralysed” after the COI Report and couldn’t sack Ms Malimali. Therefore, the Government said, the PM had to act.
Justice Tuiqereqere didn’t think much of this argument either. While he noted that two of the JSC’s members had been criticised by the COI, there were enough members left over to make a decision on what should be done – if anything – with Ms Malimali.
It seems that the JSC just decided it didn’t need to do anything. That isn’t being “constitutionally paralysed”. That is just saying “we choose to take no action.”
So where are we now? Justice Tuiqereqere ruled that Ms Malimali had been unlawfully dismissed. But he has not ordered her reinstatement. So she is not back in the job yet. The Judge has effectively said to the JSC “what happens next is up to you.”
There is lots more legal drama to play out. The judicial reviews of those criticised by the JSC are now warming up and will be back in court later this month. There is an Acting Commissioner of FICAC in place, who appears to her own set of controversies to manage.
The gaggle of lawyers who are the cast of characters in the COI mini-series are not hanging up their wigs and gowns yet.
