THE High Court in Suva heard yesterday that the crux of Prime Minister Sitiveni Rabuka’s appeal against a February 2 ruling is a constitutional dispute, with Mr Rabuka arguing he holds direct executive authority to advise the President on appointments or removals of officers that are appointed by the President.
Earlier this year, Justice Dane Tuiqereqere in the High Court found that the PM lacked the legal authority to advise the President to dismiss former FICAC Commissioner Barbara Malimali. Because the Court of Appeal has not set a hearing date yet, Mr Rabuka is seeking a stay of the court’s ruling pending the outcome of the appeal.
Mr Rabuka’s lawyer, Simione Valenitabua argued that the substantive legal battle centres on a direct conflict between Section 5 of the FICAC Act and Section 82 of the Constitution. He submitted that under Section 82(2), the President acts on the advice of the Cabinet or a Minister, which includes the PM.
He argued that Section 5 is ultra vires and unconstitutional because it incorrectly positions the Judicial Services Commission (JSC) as an intervening advisory body, which is not prescribed by the supreme Constitution.
He warned that if the JSC proceeds with decisions concerning the FICAC Commissioner before the appeal is determined, the appellate process could be rendered ineffective.
Deputy Solicitor-General Eliesa Tuiloma, representing the President, and the Attorney-General as an interested party, supported the PM’s application, stating his clients want a definitive ruling on these constitutional questions.
Conversely, Ms Malimali’s lawyer, Tanya Waqanika branded the application meritless, arguing the PM and President had caused a “constitutional crisis”. She submitted that the PM’s interpretation would undermine the separation of powers and allow political interference in independent offices. She maintained that Section 5 is valid, the PM cannot “take over” the process, and he will suffer no irreparable harm if the stay fails since her client remains unemployed while her contract runs until September 2027.
A ruling on the stay will be delivered on June 8.
