The High Court has rejected claims that the Judicial Services Commission (JSC) was “constitutionally paralysed,” finding that the Commission remained capable of dealing with matters relating to the appointment of the Fiji Independent Commission Against Corruption (FICAC) commissioner.
In a ruling delivered today, Justice Dane Tuiqereqere said the respondents’ argument — that the Prime Minister was therefore entitled to advise the President to revoke Barbara Malimali’s appointment — was unsupported in law or fact.
“I am satisfied that the COI findings fall well short of demonstrating that JSC was constitutionally paralyzed,” Justice Tuiqereqere said.
The Court noted that while the Commission of Inquiry (COI) had been critical of some members of the JSC, this did not render the body incapable of functioning.
“In effect, the respondents suggest that on the basis of the COI findings, the members of JSC were compromised,” the judge said, adding that this position could not be sustained.
Justice Tuiqereqere pointed out that the JSC has five members, and even if two were the subject of criticism, there were still sufficient unchallenged members to form a quorum and make decisions.
“JSC was capable of considering COI’s findings and making its own decision whether to recommend to the President to revoke Ms Malimali’s appointment — or indeed, take any other course of action it considered appropriate,” he said.
The Court also rejected arguments that the President could act on the advice of the Prime Minister under the doctrine of constitutional necessity, stating there was no evidence that the JSC was functionally incapacitated.
“The short answer is that I do not accept that JSC was functionally incapacitated,” Justice Tuiqereqere said.
The ruling forms part of the Court’s broader finding that Ms Malimali was unlawfully removed as FICAC commissioner, with the judge emphasising that constitutional and statutory processes must be followed, even in politically sensitive circumstances.
