High Court Judge Justice Siainiu Fa’alogo Bull will give her determination on the validity of Lavi Rokoika's appointment as Acting FICAC Commissioner in May after it was challenged by Suva lawyer Tanya Waqanika and her counsel and sacked FICAC Commissioner Barbara Malimali.
Waqanika and Malimali have applied for a permanent stay against charges laid on Waqanika by FICAC.
Malimali adopted King's Counsel Martin Daubney's argument on the validity of Rokoika’s appointment and its effect in former Deputy Prime Ministers Professor Biman Prasad and Manoa Kamikamica’s permanent stay application against their FICAC charges.
Rokoika also adopted their response in those cases for Waqanika's matter.
During the hearing, Malimali says Prime Minister Sitiveni Rabuka knew that Rokoika's appointment based on his recommendation was illegal as he had indicated that amendments will be made to the FICAC Act to make the Constitution Offices Commission as the appointing authority.
She says, in a letter to the President on the recommendation on the findings of the Commission of Inquiry into her appointment as FICAC Commissioner, Rabuka recommended, pursuant to Section 82 of the Constitution, that either Eliesa Tuiloma or Rokoika be appointed as Acting Commissioner.
In the letter, Rabuka had also said the Government will prioritize the amendment to the relevant provisions of the FICAC Act to remove the Judicial Services Commission and replace it with the COC as the appointing authority of the Commissioner and Deputy Commissioner of FICAC.
Malimali also says FICAC argument on the de facto officer doctrine, which upholds the validity of acts performed by a person acting in an official role, even if their appointment is later declared invalid, is not applicable.
She explained the doctrine is applicable if the person appointed is unaware of the invalidity of the appointment, however, the defect in Rokoika's appointment is known to the people, publication was done immediately and it was followed by a complaint to the Legal Practitioners Unit.
The counsel stresses that Rokoika knew that her appointment was being challenged and in evidence in Kamikamica and Professor Prasad's case, she is heard saying that the JSC did not want to recommend her.
Malimali says Justice Dane Tuiqereqere had has already ruled that the Prime Minister does not have the authority to dismiss the Commissioner.
She also says the validity of application to appeal Justice Tuiqereqere's ruling does not mean that his decision is stayed.
Malimali says the appeal is being opposed.
Meanwhile, Malimali's co-counsel Samuela Savu made an application to cross examine a FICAC investigator Laisa Maravu as she has given an affidavit where she said that they received a letter from the JSC but they do not adopt the context.
Savu asked if she recognises the JSC or not.
Savu says she also failed to provide Rokoika's letter of appointment but FICAC Counsel Joseph Work objected, stating that this is not the appropriate proceedings and if anything, it is a trial issue.
Justice Bull ruled in FICAC's favour in this matter.
In her submission, Malimali asked the court to give very little or no consideration to Maravu's affidavit as it adds very little to this case and major portions of her affidavit must be struck out for being scandalous.
While responding, Rokoika says there is nothing scandalous in the affidavit as they are facts.
She says Malimali had said that Maravu is disputing the JSC's existence but that is not what is in the affidavit.
Rokoika also objected to the Prime Minister's letter to the President as it is confidential but Malimali objected, as it is publicly available.
She says they got it from the Permanent Secretary to the Prime Minister's office, Dr Lesi Korovavala in the case where Malimali filed for a judicial review against her dismissal, which was ruled to be unlawful.
Malimali says Waqanika made reference to that in her affidavit and it was used with her permission as a party to the case.
Waqanika is charged by FICAC in relation to a facebook post on April 19th, 2024.
Waqanika is charged by FICAC for allegedly breaching Section 14 of the Political Parties (Registration, Conduct, Funding and Disclosures) Act.
It is alleged that on or about 19 April 2024, while serving as a public officer, namely a Board Member of Investment Fiji and Telecom Fiji Limited, Waqanika publicly indicated opposition to the political party SODELPA.
Justice Bull is expected to deliver her ruling on May 6th; however, if a decision is made in Kamikamica and Professor Prasad’s cases on April 24th or May 1st respectively, the ruling will be delivered earlier.
