Defence counsel for former FICAC Commissioner Barbara Malimali, Tanya Waqanika argues that President Ratu Naiqama Lalabalavu did not have the authority under the Constitution to sack Malimali as FICAC Commissioner.
Waqanika stressed this in the Suva High Court during Malimali’s case against the President, Prime Minister and Attorney General over her dismissal.
She says that both the Prime Minister and the President have abused their powers, stating that the President should have acted on the advice of the Judicial Services Commission, not on the recommendation of Prime Minister Sitiveni Rabuka.
The defence counsel says Malimali was directly impacted by the President’s decision, as she was not given enough time to respond to the allegations in the Commission of Inquiry report.
Suva High Court Judge Justice Dane Tuiqereqere asked whether any FICAC Commissioner had ever been terminated.
In response, Waqanika stated that previous Commissioners had resigned, making this the first case involving a termination.
When he asked who advises the President on such matters, Waqanika said the Judicial Services Commission investigates and submits the report to the President but in this scenario, the JSC was totally out of picture.
Waqanika says imagine what would happen if the Prime Minister starts removing the judges. Deputy Solicitor General, Eliesa Tuiloma says that the President acted on the Commissions of Inquiry Act, however, Waqanika responded by saying that no legal action or proceedings can take place under the COI findings.
Tuiloma agrees that there is sufficient interest but there is no arguable grounds for the matter to proceed further.
When asked if there is any appropriate provision for the Prime Minister to advise the President, the Deputy Solicitor General said there is no clear answer on this.
Meanwhile, Malimali’s application is dealing with the judicial review of the powers of the President, Ratu Naiqama Lalabalavu in terminating her employment based on the advice of Prime Minister, Sitiveni Rabuka.
Prime Minister Rabuka had first announced Malimali’s suspension and then announced that the President had dismissed her after his advice.
These developments took place after the assessment of the Commission of Inquiry report into Malimali’s appointment as FICAC Commissioner.
Justice Tuiqereqere says if there is no settlement within the two parties by this Friday, the decision will be given next Monday.
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