Malimali’s legal battle against President, PM and AG

Another legal battle starts today as sacked FICAC Commissioner, Barbara Malimali takes her matter to court against the President, Prime Minister and Attorney General.

Malimali’s judicial review matter will be called this morning before High Court Judge, Chaitanya Lakshman.

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.

The matter where sacked FICAC Commissioner, Barbara Malimali has taken the President, Prime Minister and Attorney General regarding her dismissal will be heard in the High Court on the 14th of July.

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.

The matter was supposed to be called before Justice Chaitanya Lakshman, however it was called before Justice Dane Tuiqereqere as Justice Lakshman had recused himself.

Justice Tuiqereqere says he had done so as he knows the witnesses personally.

Justice Tuiqereqere also declared that he knows the siblings of Malimali's lawyer, Tanya Waqanika's husband.

Both parties had no objection to this.

He has given Malimali's lawyer time until the 9th of July to file their written submission while the respondents have until the 11th of July to file their response.

Siddharth Nandan appeared upon Waqanika's instructions for Malimali while Eliesa Tuiloma and Josefa Mainavolau from the Office of the Attorney General appeared for the State.

Deputy Prime Minister and Minister for Trade, Cooperatives and SMEs Manoa Kamikamica stresses that the appointment of Barbara Malimali as FICAC Commissioner was solely the decision of the Judicial Services Commission and not Cabinet.

While speaking to the media, Kamikamica confirms no specific Cabinet meeting was held for the appointment of Malimali when he was Acting Prime Minister.

He says he has not seen the full report and will await the Prime Minister to release it.

Kamikamica urges the people of Fiji to think about how the report has been handled and wait for it to be released.

When asked about the report being leaked to the public, the Deputy Prime Minister says the leak is a concern as the people of Fiji are only seeing one side of the story.

Kamikamica says they will await the release of the report so those people named in the report can say their side of the story.

He says the accuracy of what is in that report is up for debate.

He says this is done by some people who have ulterior motives, and it's disrespectful to the Prime Minister and the President.

Former FICAC Commissioner, Barbara Malimali's leave for judicial review against the President, Prime Minister and Attorney General has been granted by Suva High Court Judge Justice, Dane Tuiqereqere today.

This application is dealing with the judicial review of the powers of the President, Ratu Naiqama Lalabalavu in terminating Malimali’s employment based on the advice of Prime Minister, Sitiveni Rabuka.

This means the court can review Malimali’s legal argument that the President did not have the authority under the Constitution to sack Malimali as FICAC Commissioner after the advice by the Prime Minister.

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.

Justice Tuiqereqere denied Malimali’s application for stay, stating that doing so could risk judicial interference in the functioning of key constitutional institutions.

He also ruled that Malimali is entitled to $1,500 in costs, which must be paid by the respondents.

He says the Commission of Inquiry had highlighted concerns that the Judicial Services Commission was constitutionally paralysed at that time.

The State had argued that the Prime Minister could legitimately act in place of the JSC, and the President acted on that advice.

Justice Tuiqereqere clarified that his decision does not imply that the President and Prime Minister clearly acted unlawfully.

The matter is adjourned to next Monday for the judge to look at the COI report and what the counsels have to say about it.

The timeframe for the filing of the submissions and the hearing date will be set next Monday as well.

The judicial review case of former FICAC Commissioner, Barbara Malimali, has been scheduled for hearing on October 27th.

Suva High Court Judge, Justice Dane Tuiqereqere has ordered the State to pay $1,500 by Friday.

This payment is for the cost of the judgment on leave, which was made on July 21st.

Malimali’s lawyer Tanya Waqanika is to file their submissions by October 17th, while the State will file their response by October 20th.

The State has been given 7 days to respond to the affidavit in opposition and if the applicant wishes to respond, they have been given 14 days to do so.

Malimali's application seeks a judicial review of the powers exercised by the President, Ratu Naiqama Lalabalavu, in terminating her appointment based on advice from Prime Minister Sitiveni Rabuka.

This means the court will review Malimali’s legal argument that the President did not have constitutional authority to dismiss her as FICAC Commissioner solely on the Prime Minister’s advice.

Rabuka had first announced Malimali’s suspension and later confirmed that the President had dismissed her following his recommendation.

The judicial review hearing relating to former FICAC Commissioner, Barbara Malimali’s application will take place tomorrow where the court will review the powers exercised by the President, Ratu Naiqama Lalabalavu, in terminating Malimali’s appointment based on advice from Prime Minister Sitiveni Rabuka.

The court will review Malimali’s legal argument that the President did not have the constitutional authority to dismiss her as FICAC Commissioner solely on the Prime Minister’s advice.

Rabuka had first announced Malimali’s suspension and later confirmed that the President had dismissed her following his recommendation.

Suva High Court Judge, Justice Dane Tuiqereqere will hear the matter.

High Court Judge Justice Dane Tuiqereqere will give his ruling on whether the President has the powers to terminate Barbara Malimali's appointment as the Commissioner of FICAC on the advice of the Prime Minister, on the 23rd of January next year.

Malimali's lawyer Tanya Waqanika argued that the Prime Minister has no say at all in removing Malimali.

She says he acted unfairly and unreasonably and no natural justice was accorded to Malimali.

Waqanika says the Constitution and the Judicial Services Commission have the say and the Prime Minister is silent on the matter.

She says if her appointment was illegal then the process requires the JSC to advise the President.

The counsel stresses that given the process was illegal, their position is that Malimali is still the Commissioner.

Waqanika says there was nothing in the COI about misbehavour but the process is that a tribunal sits and makes recommendations.

She says the Prime Minister knew the process and was quoted explaining it in the news but decided not to follow it because it was too costly.

The counsel says DPP Christopher Pryde and late Chief Justice Kamal Kumar, men, were accorded proper process but not her female client.

She says allegations were never put to Malimali because it was too costly and, in her words, because she was a woman.

Waqanika says the only grounds she could be removed was because of misbehaviour but this was not mentioned in the COI report.

When questioned by Justice Tuiqereqere, Waqanika stresses it does not matter what the basis and reason for her removal was because the Prime Minister did not follow the process.

Waqanika is calling on the court to declare the decision as illegal and Malimali be paid money as damages.

She says after her removal, even until today, Malimali cannot get a job and there have been consistent attacks on them on facebook.

Deputy Solicitor General Eliesa Tuiloma, who represented the Office of the Attorney General and the President, argued that the President has the prerogative powers under common law.

He says no other body could give the advice as the Attorney General was questioned by the Commission of Inquiry and the JSC was also under their radar.

He says the action was taken by the President as Malimali did not disclose her character history and about FICAC's investigation to the JSC or the Legal Practitioners Unit.

Tuiloma says they cannot afford to have a person with a tainted record to run FICAC.

The Deputy Solicitor General says the President signed off on the appointment because he believed the body responsible did their due diligence but unfortunately, it was not done and the President had to extract his prerogative power.

He highlighted a case in point where during the 2000 coup, the then President made a decision to appoint Tevita Momoedonu as Acting Prime Minister and this is the same case here.

When questioned by Justice Tuiqereqere on whether the Constitution says that the Prime Minister must give the advice, Tuiloma says Chapter 1 Section 3 of the Constitution allows for it.

According to Section 3 of the Constitution, any person interpreting or applying this Constitution must promote the spirit, purpose and objects of this Constitution as a whole, and the values that underlie a democratic society based on human dignity, equality and freedom.

Justice Tuiqereqere says he will have to read a lot into it to get to what he is saying.

He says Tuiloma is asking him to arbitrarily make a decision not in compliance of the Constitution and that would lead to uncertainty.

Tuiloma says they tried their best to follow the Constitution but had to resort to prerogative power and to get another body to advise the President.

They are seeking an order that a person cannot sue the Head of State as the President is the only person who can use his prerogative power for public interest.

He also says Malimali’s application must be dismissed in its entirety as they have not been able to disclose the reason why it did not disclose to the JSC. The Prime Minister's counsel Simione Valenitabua says the Prime Minister gave his advice to the President as the JSC has no authority to advice but can only give recommendations. He says they were faced with a constitutional crises as the Constitution does not lay out the process for the Attorney General, the Prime Minister, the JSC or the President when instances arise where the appointment is being questioned by the COI.

Valenitabua says the Prime Minister is authorised to give advice to the President and the President has the prerogative power and chose not to act.

He proposed the court to stretch the President’s power under Section 3 of the Constitution because the Attorney General and the JSC were compromised in the same way it was invoked by the Supreme Court in the 2013 Constitution matter for democracy and governance.

Valenitabua seeks the court to decide that it is the Prime Minister to decide that Prime Minister give their advice to the President in such matters.

While responding to their submission, Waqanika says no one is above the law and the argument that natural justice does not apply in this matter is ‘hogwash’.

She says the President does not have prerogative powers as his powers are limited by the Constitution.

The Counsel says the Deputy Solicitor General spoke about the coup but the advice by the Prime Minister was a coup itself.

She say what we are facing now is a constitutional crisis as the Prime Minister is usurping powers of advise of the JSC while are President is usurping the power to revoke the appointment.

Meanwhile, Prime Minister Sitiveni Rabuka was in court today for the hearing.

The Suva High Court will deliver it's ruling after the judicial review on whether the President, Ratu Naiqama Lalabalavu and Prime Minister, Sitiveni Rabuka acted under the Constitution to dismiss FICAC Commissioner, Barbara Malimali.

The judicial review was earlier allowed by High Court Judge, Justice Dane Tuiqereqere.

Malimali has challenged the legality of her dismissal in June last year after the Commission of Inquiry report.

Her lawyer, Tanya Waqanika has said the President had made the decision on the advice of the Prime Minister although the law says that it should be based on the advice of the Judicial Services Commission.

The ruling will be delivered at 2.30pm today.

Stay with us for developments.

Prime Minister, Sitiveni Rabuka is considering resigning if the court appeal process for the Barbara Malimali case fails.

Rabuka has made the comments after calls being made for him to resign based on the court ruling yesterday saying that the removal of Malimali as FICAC Commissioner was unlawful.

Insert : PM on resigning Feb 2nd

Rabuka has directed that an appeal be lodged following yesterday’s ruling.

The Prime Minister says the Court’s decision to grant leave for a judicial review challenging the validity of the Commission of Inquiry has been noted, and the Government will take the necessary steps to respond through the appropriate legal processes.

He says he is encouraged that yesterday’s proceedings reaffirm that democracy in Fiji remains strong, that the separation of powers is respected, and that there is no interference by the Executive in the work of the Judiciary.

Rabuka says the rule of law remains paramount, and Government will continue to uphold constitutional processes and respect the independence of our institutions.

He says they are all subject to law and so is the judge.

Rabuka says he will exercise his right as a citizen of the country and he will appeal the decision, and take it to the final appellate court of the land which is the Supreme Court.

High Court Judge, Justice Dane Tuiqereqere has ruled that the dismissal of Barbara Malimali as FICAC Commissioner was unlawful.

Justice Tuiqereqere has ruled that the President appoints the Commissioner on the advice of the Judicial Services Commission, and that Prime Minister, Sitiveni Rabuka did not have the authority to dismiss Malimali.

Reinstate Barbara Malimali as FICAC Commissioner and let's get this car back on the road.

That is the message from Malimali's counsel, Tanya Waqanika after High Court Judge, Justice Dane Tuiqereqere ruled that the dismissal of Malimali as FICAC Commissioner was unlawful.

The ruling states that the President appoints the FICAC Commissioner on the advice of the Judicial Services Commission, and that Prime Minister, Sitiveni Rabuka did not have the authority to dismiss Malimali.

Waqanika has confirmed to fijivillage News that they have written to the members of the Judicial Services Commission chaired by Chief Justice Salesi Temo, and stated that Malimali is ready to take up the FICAC position again.

She calls for good sense to prevail as a lot of time and taxpayers' money has been spent on this.

Waqanika says it is also best for the President to make things right based on the court ruling.

She says she believes the Judicial Services Commission is meeting tomorrow, and they hope good sense will prevail.

Waqanika says the Prime Minister should step back and not get involved.

She says the matter should be left with the JSC and the President.

The lawyer says if she was the President, she would revoke the appointment of Lavi Rokoika as Acting FICAC Commissioner and let the JSC deal with Malimali.

She adds there is too much collateral damage and more than $4 million in taxpayers' money has been used for the Commission of Inquiry.

Insert : Waqanika On Taxpayers Feb 3rd

You can watch the full interview on our website and facebook page, fijivillage at 7pm tonight.

The Government has now said that 

following due and deliberate consideration, and after obtaining legal advice and further consultations with President, Ratu Naiqama Lalabalavu, the Government has resolved that it will not pursue an appeal against the High Court ruling that the dismissal of Barbara Malimali as FICAC Commissioner was unlawful.

The Government says while the decision that was subject of judicial review was made on the basis of legal advice provided by a learned King’s Counsel, the Government fully respects the ruling of the Court. 

It says the decision of the High Court underscores the vital role of the Judiciary in upholding justice and ensuring fairness for all citizens. 

The Government says it is a testament to the strength of Fiji’s legal framework, which enshrines the separation of powers and ensures that judicial decisions are free from political interference. 

The Government says it remains committed to the rule of law, respect for constitutional processes, and the separation of powers. 

It also says as provided for in the ruling, the Government acknowledges and respects the constitutional mandate of the Judicial Services Commission to deliberate on the matter and bring it to its conclusion. 

Prime Minister, Sitiveni Rabuka reiterates the Government’s confidence in Fiji’s democratic institutions and affirms its continued commitment to good governance, accountability, judicial independence and the separation of powers among the three branches of government.

Rabuka had earlier confirmed to fijivillage News that in his discussions with President Ratu Naiqama Lalabalavu yesterday, he advised him of his intention to appeal the ruling, and the President had given his blessings.