Prime Minister, Sitiveni Rabuka has decided to appeal High Court Judge, Justice Dane Tuiqereqere's ruling that the dismissal of Barbara Malimali as FICAC Commissioner was unlawful, and one of the orders being sought in the appeal papers 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 this appeal.
Malimali’s lawyer, Tanya Waqanika confirms that she has received a notice.
We have been told that the appeal papers were filed today and this was served to Waqanika as Malimali's lawyer.
fijivillage News has asked Rabuka why the change in the decision again after earlier deciding to appeal, then not to appeal, and now to appeal.
He has not said anything as yet.
Justice Tuiqereqere ruled on February 2nd this year that the President appoints the 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.
Meanwhile the JSC chaired by Chief Justice Salesi Temo had sent their recommendation two weeks ago for Rokoika to leave the FICAC office.
No decision has been made by the President.
There were indications that the President had asked the JSC to consider a severance payout for Rokoika.
However majority of the JSC members have said this payout cannot be done as Rokoika was not recommended for the Acting FICAC Commissioner post by the JSC.
Stay with us for developments.
