At the heart of a constitutional battle unfolding in the High Court is a question about power and process: who has the legal authority to tell the President when an independent officer should go.
Lawyer Tanya Waqanika argues Prime Minister Sitiveni Rabuka acted outside the Constitution when he advised the removal of former FICAC Commissioner Barbara Malimali. She says the law sets a strict process to protect institutions from political influence, and that process was ignored.
The challenge comes after Ms Malimali’s appointment was revoked on June 2, 2025. Her removal followed the findings of a Commission of Inquiry, but her lawyers at Waqanika Law say she was never given a chance to see the allegations or respond before the decision was made.
They say the case goes well beyond one individual and will test the boundaries of presidential authority under Fiji’s supreme law.
Ms Waqanika says the Constitution draws a clear line to keep independent bodies like FICAC free from political control.
In her submissions, she states: “The Second Respondent has no authority under the Constitution or any written law to advise the First Respondent to revoke the appointment of the Applicant.”
She says the President relied on advice that had no legal basis when he signed off on the revocation.
“The First Respondent acted under the advice of the Second Respondent, a person with no authority to advise the First Respondent to revoke the appointment of the Applicant.”
Ms Waqanika argues that section 112 of the Constitution sets out the only lawful removal process for the Commissioner of FICAC. That process requires a tribunal or a medical board. It does not give any role to the head of government.
“The First Respondent acted ultra vires and contrary to section 112 of the Constitution… In this regard, the First Respondent has acted ultra vires the Constitution in removing the Applicant on the advice of the Second Respondent.”
She tells the court that the country’s supreme law was written to guide every leader’s hand, even the President’s, and that those boundaries matter most when power is tested.
“Any executive authority of the First Respondent is limited by the Constitution and any written law.”
The submission says those limits were ignored when Ms Malimali was removed without being heard.
“The First Respondent acted unfairly and in breach of natural justice… failing to provide the Applicant with the allegations… and providing to the Applicant an opportunity to be heard.”
For Ms Waqanika, everything in this case turns on the Prime Minister’s step into a space the law never gave him.
“The Second Respondent acted illegally, unreasonably, irrationally, ultra vires, unfairly and contrary to the fundamental principles of natural justice.”
She argues this part of the Constitution was written in clear lines, not open questions. In other words, Parliament spelled out this process plainly, with no hidden clauses or silent permissions.
“The Second Respondent acted ultra vires and contrary to section 5 of the FICAC Act 2007 and section 44 of the Interpretation Act 1967.”
One detail stood out in court. The country knew she was out before she did. Ms Waqanika says Ms Malimali first saw the news unfold on Facebook, while the rest of Fiji watched along. It is a moment Ms Waqanika describes as both public and personal, as the woman at the centre of it was still in the dark.
“The Applicant found out about the revocation of her appointment via Facebook.”
The narrative in court stretches further back to the Commission of Inquiry whose findings set all of this in motion. Ms Waqanika says its findings cannot trigger removal of a constitutional office holder.
“The COI is only an investigation; it does not have the force of law.”
Instead of guiding further process, she says the findings became the decision itself.
“They were willing to breach the Constitution and the FICAC Act and the rules of natural justice… to give Ashton-Lewis’ recommendations force and effect.”
Her case draws a clear line. The head of government simply has no legal place in the removal of an independent officer.
“The Second Respondent is not prescribed under the Constitution… as a person or body with the constitutional or legal authority.”
She argues that once the facts are joined together, the decision collapses under the weight of its own flaws.
“The First Respondent acted unreasonably, unfairly and irrationally and ultra vires the Constitution.”
Ms Waqanika also points to the broader implications for the country’s system of government, touching the foundations of how power is checked in Fiji.
She argues that if the Prime Minister can direct the removal of the very agency tasked to investigate corruption, then independent checks on power can be weakened by a single political decision. This, she says, would make public institutions vulnerable and reduce confidence in the rule of law.
Her submissions refer to constitutional values of fairness, openness and public accountability, and suggest those values are at risk when legal boundaries are bypassed.
She says clear procedures exist for a reason: so decisions which affect the public interest cannot be made behind closed doors or without lawful scrutiny.
Ms Waqanika adds that the case also concerns the dignity of the office itself. The method of notifying Ms Malimali, she argues, stripped the position of its constitutional respect and sent a damaging message about how high public officers can be treated.
The Attorney-General has indicated that the State rejects these claims, maintains the President acted properly, and says the decision was made within lawful authority tied to executive powers.
With the court now examining the facts and the law, the case moves into a phase that will define how strictly Fiji’s constitutional processes must be followed.
It will answer whether the Judicial Services Commission must always be involved in removal actions.
It will also test whether a Commission of Inquiry report can be relied upon without the affected officer having an opportunity to respond.
For Ms Malimali, the proceedings are about her reputation, her future work, and the way she was treated.
For Ms Waqanika, the case tests the balance of power in Fiji’s constitutional democracy.
For the country, it may answer a question many never realised existed: how far can the executive branch reach into institutions whose purpose is to keep that same executive in check.
The ruling, once delivered, is expected to shape governance and accountability far beyond this case and for years to come.
