Prime Minister Sitiveni Rabuka has lost an application to stay February’s landmark High Court judgment on Fiji Independent Commission Against Corruption (FICAC) Commissioner Barbara Malimali while waiting for the Court of Appeal’s ruling on it.
Justice Dane Tuiqereqere ruled that the High Court lacked jurisdiction to stay the orders. He said his February 2 judgment was strictly declaratory in nature, addressing only the interpretation and effect of constitutional provisions.
Justice Tuiqereqere noted that, as a general principle, declaratory orders cannot be stayed. He clarified that the only orders made in the substantive judgment were a declaration that the revocation of Ms Malimali’s appointment was unlawful and ultra vires (beyond the power of the decision maker), along with costs awarded in her favour.
He rejected arguments from the PM’s lawyers that exceptional circumstances justified the granting of a stay, saying he found no sufficient basis to interfere with established constitutional and statutory processes.
Justice Tuiqereqere said the PM was effectively seeking to stay orders that were never made, including any attempt to halt Ms Malimali’s reinstatement. He emphasised that the original judgment left matters relating to Ms Malimali’s appointment entirely to the Judicial Services Commission (JSC) under its lawful mandate.
Justice Tuiqereqere added that if the Court of Appeal ultimately rules in favour of the Prime Minister, any interim steps taken by the JSC could be reversed. He also found that granting a stay would prejudice Ms Malimali, whose three-year contract began on September 5, 2024, potentially delaying any review or reappointment process until the appeal is resolved, possibly in 2027.
The court held that the balance of convenience strongly favoured refusing the application, noting that the status quo had remained unchanged since the February ruling.
Although dismissing the application Justice Tuiqereqere accepted that the appeal was being pursued in good faith and acknowledged the constitutional significance of the issues raised. He said his ruling ends the High Court’s involvement in the case, with the matter now proceeding to the Court of Appeal.
