Certain provisions of the Fiji Independent Commission Against Corruption (FICAC) Act are invalid and contradict the 2013 Constitution.
This is one of the findings of the Commission of Inquiry report into the appointment of former commissioner Barbara Malimali, as it called for a review of the Act so that FICAC’s powers could be streamlined to focus on corruption offences, and to ensure there was some oversight in relation to its policies and the prioritisation of cases, without intruding into its independence.
The COI also noted “the use of FICAC as a political weapon, whether to shield allies or target opponents”.
It said compared with the other law enforcement agencies, FICAC had both investigative and prosecutorial powers, adding that the “attitude and conduct that was a key aspect of the FijiFirst regime has continued to infect the new Coalition Government”.
“The COI has found that the ‘weaponising’ of FICAC is still occurring.”
It has recommended substantive changes to the way in which the FICAC Commissioner and Deputy Commissioner are appointed.
According to section 5(1) of the FICAC Act, the commissioner shall be appointed by the President on the recommendation of the Judicial Services Commission following consultations by the commission with the Attorney-General, while Section 82 of the 2013 Constitution states “in the exercise of his or her powers and executive authority, the President acts only on the advice of Cabinet or a Minister or of some other body or authority prescribed by this Constitution for a particular purpose as the body or authority on whose advice the President acts in that case”.
“These provisions provide that the President shall make appointments to FICAC on the recommendation of the JSC,” the report stated.
“The purported authority prescribed by ss 5 – 7 of the FICAC Act is not ‘prescribed by this Constitution’.
“On the contrary, it is an authority prescribed by ordinary statute in contravention of section 82 of the Constitution.
“The JSC’s powers of appointment, suspension, and/or dismissal of the FICAC commissioner is not prescribed by the Constitution. They are sourced in s 5 of the FICAC Act.”
The report also highlighted the appointment of former FICAC acting deputy commissioner Lisiate Fotofili whose appointment by the JSC was also invalid, based on the provisions under the FICAC Act being contradictory.
Malimali said yesterday, “I have no comment at this stage”.
