High Court judge, Justice Dane Tuiqereqere considered three critical points in awarding leave to Barbara Malimali to challenge her termination as FICAC Commissioner under a judicial review.
This is stated in his ruling handed down yesterday.
The judge outlined the following key questions while reaching his decision:
-Whether the President was permitted to revoke Ms Malimali’s appointment on the advice of the Prime Minister?
-Whether Ms Malimali was denied natural justice prior to the decision of 2 June 2025?
-Whether the Prime Minister acted reasonably, when advising the President, in reliance on the findings and recommendations of the Report of the Commission of Inquiry?
Justice Tuiqereqere states Section 5 of the Fiji Independent Commission Against Corruption Act 2007 provides that the Commissioner is appointed by the President on advice from JSC following consultation by JSC with the Attorney-General.
“The respondents (President, PM, AG) accept that the President is not empowered to unilaterally revoke the appointment of a Commissioner for FICAC,” states the judge.
“The respondents argue that ‘ordinarily’ the President ‘must act only on a valid recommendation from the JSC’.”
“That appears to be common ground between the parties although the applicant argues that the President must act on the advice/recommendation of JSC in every case – in other words there is no exceptions.”
The judge noted in this case, the President was permitted to act on the advice of the Prime Minister with the following reasoning:
-The findings and recommendations of the Commission of Inquiry justified the revocation of Ms Malimali’s appointment as Commissioner
-The Commission of Inquiry also raised concerns about JSC such that ‘JSC was constitutionally paralysed
-In such circumstances, the Prime Minister was a ‘legitimate temporary substitute’ for JSC
-The wording of s 82 of the Constitution permitted the Prime Minister to stand in the shoes of JSC in such circumstances
-The fact of the Commission of Inquiry, and its hearings, afforded Ms Malimali her opportunity to be heard.
“I need not decide the substantive issue at this time. It suffices that the applicant demonstrate that she has an arguable case,” said Justice Tuiqereqere.
“I am satisfied that she does. A plain reading of the legislation confers the power on JSC to advise the President on the appointment of the Commissioner of FICAC.”
“It naturally follows that revocation of the appointment must also be on the advice of JSC.”
“The respondent argue that the particular circumstances here permitted the Prime Minister to stand in the shoes of JSC and instead advise the President.”
“There is, however, no express provision to this effect.”
“The applicant’s case is, at least, arguable and she should therefore have an opportunity to fully argue the matter.”
“A further reason to grant leave is that the issue in this case is novel – it has not previously been determined by the judiciary.”
