Fiji Law Society President, Wylie Clarke has recommended that the Constitutional Review Commission consider whether FICAC should be abolished altogether and its functions reallocated to constitutionally appropriate institutions.
He says anti-corruption enforcement is important, but it must be institutionally independent, procedurally fair, and protected from actual or perceived political use.
Clarke says if the Commission decides otherwise however, and to retain FICAC, its role should be limited to investigation only.
He says prosecution decisions should rest with the Director of Public Prosecutions independently and in accordance with law and published prosecution guidelines, none of which exist at this moment in respect of FICAC.
The Law Society President says there are no prosecution guidelines that they are aware of in respect of FICAC.
He says if the Commission decides that FICAC is important enough that it ought to be continued, then it should be for a very limited scope only, and just for investigation.
The Fiji Law Society recommends that immunity provisions be reviewed.
They say a future constitutional settlement should not entrench permanent legal impunity or prevent courts from determining the legality, scope, or application of immunity provisions.
Insert: Clarke on immunity MC 29th June
The Fiji Law Society has also recommended the establishment of an independent constitutional ombudsman to investigate mal-administration and improve accountability in public administration.
Clarke says the current Constitution does not appear to provide for such an office.
Clarke says the ombudsman should investigate issues such as mal-administration, unreasonable delays, abuse of discretion, unfair administrative action, failure to provide reasons for decisions and systemic failures in public administration.
He says the office would complement, rather than replace, judicial review and other accountability institutions.
Clarke also told the Commission that the FICAC exercises significant coercive powers in matters closely linked to public confidence, political accountability and the rule of law.
The Law Society is calling for constitutional protection of the legal profession's independence, saying changes to the Legal Practitioners Act alone are not enough.
Clarke says while the Legal Practitioners Act 2009 is under review, key protections should be entrenched in the Constitution to prevent executive and parliamentary interference.
Clarke says the current law gives the Attorney-General and the Office of the Chief Registrar significant roles in regulating the legal profession, including the issuing of practising certificates, creating a risk or perception of executive influence.
He says the Fiji Law Society should instead have the authority to issue, renew, suspend and impose conditions on practising certificates, subject to clear legal criteria, procedural fairness and court oversight.
Clarke says because practising certificates determine who can practise law, appear in court and challenge unlawful public power, those powers should rest with the profession's independent statutory body rather than the executive.
