SUVA lawyer Tanya Waqanika has declared that “no one is above the rule of law” following her client, former FICAC Commissioner Barbara Malimali’s, courtroom triumph.
Speaking outside the High Court in Suva after Justice Dane Tuiqereqere ruled in Ms Malimali’s favour in her judicial review application, Ms Waqanika admitted she had never felt so nervous.
“It’s been a long, long journey,” she said.
“I have never felt so nervous in my life until today, and this is what happens when you lose your job and then have to fight. I know what it’s like because I’ve been through the same.”
Ms Waqanika confirmed she would now take instructions from her client regarding her potential reinstatement as FICAC Commissioner.
She also emphasised that the Judicial Services Commission—not the Prime Minister—is the lawful body empowered to recommend appointments and removals to the President.
Ms Malimali, a lawyer and former Human Rights and Anti-Discrimination Commissioner, was appointed to head the Fiji Independent Commission Against Corruption on September 5, 2024.
She filed her judicial review in June last year after her removal sparked debate over presidential powers and the independence of the anti-corruption watchdog.
The case draws on Section 5 of the FICAC Act 2007, Section 44 of the Interpretation Act 1967, and Sections 16, 81, 82, and 112 of Fiji’s 2013 Constitution.
High Court judge Tuiqereqere dismisses legal foundation
SUVA High Court judge Justice Dane Tuiqereqere has dismissed the legal foundation relied upon by the Commission of Inquiry, calling its interpretation of the Constitution “strained” and legally unsound.
The COI had argued that section 82 of the Constitution only allows the President to act on advice explicitly prescribed in the Constitution and that because the JSC’s role in FICAC appointments comes from statute, it was invalid.
The Court rejected that reasoning outright.
“In my view, this is a strained interpretation of the ordinary words,” Justice Tuiqereqere said.
He found that the COI’s approach required “removing, or ignoring, the words ‘for a particular purpose’” from section 82 – something the Court refused to do.
“I do not accept that the drafters of the 2013 Constitution had no reason or purpose for including those words.”
The judgment instead confirmed that the Judicial Services Commission is “a body prescribed by the Constitution for a particular purpose”, meaning it can lawfully advise the President under written law such as the FICAC Act.
On that basis, section 5 of the FICAC Act was found to be valid – not ultra vires as claimed by the COI.
The Court also noted that even the respondents (President, Prime Minister and Attorney General) ultimately did not adopt the COI’s reading of section 82, instead advancing alternative arguments.
Justice Tuiqereqere said his interpretation “accords with a plain reading” of the Constitution and fits within the structure of Chapter 5, which houses other independent offices such as the Director of Public Prosecutions.
The ruling significantly undercuts the legal authority of the COI’s conclusions and reinforces the clear separation between political power and independent bodies.
