The King’s Counsel for former Deputy Prime Ministers Professor Biman Prasad and Manoa Kamikamica has told the Suva High Court that the evidence shows Lavi Rokoika’s appointment as Acting FICAC Commissioner falls within the definition of a “usurper”.
This was highlighted in the case where Professor Prasad and Kamikamica have applied for a permanent stay on criminal proceedings brought against them by FICAC.
In his submission, King’s Counsel Martin Daubney argued that Rokoika’s appointment is unlawful and that any act carried out by her in that position is unconstitutional and of no legal effect.
He says the Judicial Services Commission is the proper body to advise the President on such an appointment.
Referring to Justice Dane Tuiqereqere’s ruling that the sacking of Barbara Malimali as FICAC Commissioner was unlawful, Daubney says Rokoika was not part of those proceedings, and therefore the judge did not have jurisdiction to make pronouncements on her appointment.
He also says FICAC, in its submissions, does not argue that Justice Tuiqereqere’s interpretation of the FICAC Act and the Constitution is incorrect.
Daubney further submitted that while the President has the power to appoint, that power must be exercised based on the advice of the Judicial Services Commission.
In response, Rokoika says Justice Tuiqereqere had stated in his ruling that he did not have jurisdiction to consider the validity of her appointment, and that this was a matter for the Judicial Services Commission.
She said she is in effect fulfilling the role.
Daubney objected, saying Rokoika was giving evidence from the Bar when she referred to herself.
He says she is trying to protect herself by picking herself up by the bootstraps and giving evidence about the legitimacy of her conduct.
Rokoika withdrew that statement.
She also says that if one reads the FICAC Act and the Constitution, the President has the power to appoint but how that power was exercised is the irregularity.
Rokoika adds that they have not argued that Justice Tuiqereqere’s ruling is incorrect, noting that any disagreement would require an appeal, which is now before the courts.
She further says the only reference to the JSC in the FICAC Act relates to remuneration.
Rokoika argued that any challenge to the validity of the appointment should be dealt with in a civil court, and that the current court does not have jurisdiction to determine that issue.
She described the proceedings as a judicial review “masquerading” as a stay application and stressed that no court has yet ruled on the validity of her appointment.
In his right of reply, Daubney says recordings presented in court by the two journalists show that Rokoika was aware her appointment was not recommended by the JSC.
He says the recordings also demonstrate that she was unconcerned about the JSC’s exclusion from the process.
Daubney told Justice Siainiu Fa’alogo Bull that she must be struck by some less than complimentary comments made by Rokoika in the course of the interview which demonstrates her lack of regard for the JSC.
He says there is also direct evidence from the Prime Minister that he decided to provide advice on the appointment because the Judicial Services Commission was not cooperating.
Daubney further argued that it is incorrect to suggest judicial review is the only mechanism through which a court can determine whether an office holder has been unlawfully appointed.
He said no legal authority has been provided to support the argument that Justice Bull’s court lacks jurisdiction to hear the matter.
Rokoika told the court she will provide supporting case authorities tomorrow.
Professor Prasad faces two counts of failure to comply with statutory disclosure requirements and one count of providing false information in a statutory declaration, allegedly omitting his directorship.
Kamikamica is charged with one count of perjury and one count of providing false information to a public servant.
While the charges arise from separate cases, the court is hearing their applications together, as both challenge the validity of Rokoika’s appointment.
Submissions on other grounds of the stay application continues to be heard in court.
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