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.
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