Margot
Staunton, RNZ Pacific senior
journalist
Fiji’s High Court this week rejected Prime
Minister Sitiveni Rabuka’s attempt to stall its ruling that
the country’s former anti-corruption chief was illegally
sacked.
In
February, Justice Dane Tuiqereqere found that the
President – on the advice of the prime minister –
“unlawfully” dismissed Barbara Malimali, the head of the
Fiji Independent Commission Against Corruption
(FICAC).
The finding reportedly “embarrassed”
Rabuka, who applied to the High Court in March for an
order staying the execution of the judgement and all further
proceedings.
However, Justice Dane Tuiqereqere refused
to grant the stay of execution on Monday, saying he did not
have the authority to do so.
The earlier decision has
paved the way for the judiciary’s highest body, the Judicial
Services Commission (JSC), to consider reappointing
Malimali, who is now seeking
around $US1.4 compensation from the state, plus her job
back.
New legal move
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Meanwhile, Rabuka’s
lawyer Simione Valenitabua told RNZ Pacific that he has now
applied to the Court of Appeal for a fresh stay.
He is
seeking the following orders:
- The execution of
the judgement and orders of the High Court on 2 February be
stayed, pending the outcome of his appeal; (of the whole
judgement) - Malimali be “restrained from resuming the
office of Commissioner of FICAC until the final
determination of the appeal; and - The Judicial
Services Commission (JSC) be prevented from exercising any
functions under the FICAC Act pursuant to the orders in the
(February) judgement.
Malimali, who was
appointed as FICAC’s chief in September 2024, had filed a
judicial review challenging the president’s
decision.
She claimed that the public termination of
her employment had caused her substantial reputational and
emotional harm and led to cyberbullying. She asked the court
to quash the dismissal, reinstate her as FICAC commissioner,
and award damages.
Her lawyer, Tanya Waqanika,
reportedly told the High Court previously that Rabuka was
appealing the entire judgement to protect President Ratu
Naiqama Lalabalavu.
Waqanika claimed the President was
facing the threat of being referred to a JSC tribunal over
her client’s dismissal, according to
fijivillage.com.
Outside the High Court on Monday,
Waqanika told local media that she was confident of winning
their case in the Court of Appeal.
Justice Tuiqereqere
stated in February that “the prime minister did not have the
constitutional authority to advise the president to revoke
her appointment”, as reported by The Fiji
Times.
Tuiqereqere added at the time that the JSC
was the only body responsible for appointing, disciplining
and removing FICAC’S commissioner.
The president’s
decision
The president initially suspended Malimali
in May 2025 and subsequently revoked her appointment a month
later, on Rabuka’s advice. His decision was made in the wake
of a damning Commission of Inquiry into her
appointment.
The investigation, headed by Australian
Justice David Ashton-Lewis, found that Malimali’s
appointment was “legally invalid, ethically reprehensible
and procedurally corrupt”.
One of its main findings
was that her appointment was “orchestrated to protect
political actors and public officials and to derail
corruption investigations.”
Rabuka threatened to
resign over Tuiqereqere’s finding, walked that idea back and
made several u-turns over whether to appeal
the
decision, which he finally did.
The prime minister
later apeared to be non-committal over the prospect of
resigning and told local media that he would await the
outcome of his appeal
When asked if he would resign if
the appeal failed, he replied: “That was when the decision
that came (Tuiqereqere’s ruling) was not very clear to me as
a non-lawyer, now I’ll leave it to the court and when that
comes out I’ll make a decision.”
Valenitabua
previously sent RNZ Pacific an eight-page document outlining
Rabuka’s appeal against the “whole judgement”.
In the
document, Rabuka claims Tuiqereqere made an “error of law”
eleven times, including:
- Wrongly interpreted
section 82 of the 2013 Constitution - Incorrectly
concluded that section 5 of the Fiji Independent
Anti - Corruption Commission (FICAC) Act is consistent
with section 82 of the Constitution - Upheld an
“untoward and legally perverse” Constitutional
hirearchy - Adopted “narrow literalism” in
interpreting the Constitution
Rabuka wants the
appeal to be allowed and the judgement set aside. He is
seeking declarations that state that:
- Malimali’s
appointment was unlawful and contrary to section 82 of the
Constitution - Section 2 of the FICAC Act is
unconstitutional (and purports to require the President to
act on the advice (as opposed to the recommendation) of the
Judicial Services Commission (JSC) before appointing the
head of the Commission - Malimali’s appointment was
invalid due to pre-appointment “taint” - The acting
FICAC Commissioner Lavinia Rokoika remain during the appeal
process
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