One door closes another remains open.
Those are the words of Prime Minister, Sitiveni Rabuka after his stay application on the February High Court ruling that the dismissal of Barbara Malimali as FICAC Commissioner was unlawful, was refused by High Court Judge, Justice Dane Tuiqereqere today.
While responding to fijivillage News after the ruling, Rabuka said the Court of Appeal route remains open.
He says as he had intended, he will continue with the appeal process.
Rabuka had earlier said that he will consider resigning if he does not win the appeal.
According to the appeal papers filed by the Prime Minister, one of the orders being sought by the Prime Minister is an order preserving the status quo prior to the issuance of the judgement under appeal, including that the appointment of the Acting FICAC Commissioner Lavi Rokoika remains.
According to the appeal papers, Rabuka is saying that there was an error in law and incorrect interpretation by the High Court Judge, Justice Dane Tuiqereqere that there was incorrect conclusion that section 5 of the FICAC Act is consistent with section 82 of the Constitution, error of law based on reversal of constitutional hierarchy, adoption of narrow literalism in constitutional interpretation, validity of appointment based on pre-appointment taint, and doctrine of necessity amongst other grounds.
The other orders being sought by the Prime Minister are that the appeal be allowed and the judgement set aside, a declaration that Malimali's appointment was unlawful, a declaration that section 5 of the FICAC Act is unconstitutional to the extent that it purports to require the President to act on the advice (as opposed to recommendation) of the Judicial Services Commission (after consultation with the Attorney General) in respect of the appointment of the Commissioner and Deputy Commissioner of FICAC, a declaration that Malimali's appointment was impaired by pre-appointment taint, and an order staying the execution of the judgement and all further proceedings pending the determination of the appeal.
Justice Tuiqereqere ruled on February 2nd this year that the President appoints the FICAC Commissioner on the advice of the Judicial Services Commission, and that Prime Minister Rabuka did not have the authority to dismiss Malimali.
He had stated the Judicial Services Commission is the correct body to advise the President, and he did not accept that the JSC was temporarily incapacitated.
The judge said the JSC needs to consider Lavi Rokoika's acting FICAC Commissioner appointment as that is a matter for the JSC.
Malimali had challenged the legality of her dismissal in June last year after the Commission of Inquiry report.
We have sought comments from the Judicial Services Commission on the Prime Minister's stay application refused on Justice Tuiqereqere's earlier judgement.
Stay with us for developments.
