The Judicial Services Commission is seeking an order to quash the findings and recommendations of the Commission of Inquiry into the appointment of Barbara Malimali as the Commissioner of FICAC together with other declarations.
In a statement by JSC’s counsel, Isireli Fa says the JSC had yesterday filed its application for leave to apply for judicial review of the findings and recommendations of the COI dated 1st May and received by the JSC on the 17th of June.
He says the judicial review application by the JSC raises serious issues with the conduct of the COI and its findings and recommendations.
Fa says in their opinion, its findings and recommendations are inconsistent with the evidence that was before the COI.
He says further, Section 5(1), Section 7(1) and Section 10(1) of the FICAC Act 2007 on the appointment and powers of the Commissioner of FICAC; Section 82 of the Constitution on the role of the JSC in advising the President on the Commissioner of FICAC position.
Fa says the COI’s interpretation on the provisions form the basis of its findings and recommendations in the COI Report.
He says JSC find their interpretations to be perverse as they are inconsistent with the established rules of interpretation and have serious unintended consequences for all involved.
He says its interpretation of Section 82 of the Constitution and Section 5 of the FICAC Act, interferes with the JSC’s performance of its constitutional role under the Constitution, and if not corrected, will result in a constitutional crisis in Fiji in the near future.
According to Section 82 of the Constitution, in the exercise of his or her powers and executive authority, the President acts only on the advice of Cabinet or a Minister or of some other body or authority prescribed by this Constitution for a particular purpose as the body or authority on whose advice the President acts in that case.
Section 5(1) of the FICAC Act states the Commissioner is appointed by the President on the recommendation of the Judicial Services Commission, following consultation by the Judicial Services Commission with the Attorney-General.
He says this is unfortunate as any evidence before the Commission of Inquiry prima facie, cannot be in any court proceedings subject to exceptions in the COI Act 1946.
Fa says criticism levelled against them have no merits and will be purged in these proceedings.
Fa says they are urging all those politicising the findings and recommendations of the COI and weaponizing them against the JSC and its officers, to desist from doing so as their client may take legal action against them.
He adds the relevant parties to the judicial review will shortly be served.
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