Sacked FICAC Commissioner Barbara Malimali’s counsel Tanya Waqanika has told the Suva High Court that the decision finding Malimali’s dismissal unlawful is being appealed because President Ratu Naiqama Lalabalavu is facing the threat of being referred to a Judicial Services Commission tribunal.
This was stated by Waqanika in court during the hearing of Prime Minister Sitiveni Rabuka’s application to halt the effect of Justice Dane Tuiqereqere's decision pending an appeal, with a ruling expected next Monday.
Waqanika says they have been in three meetings with the JSC and the reason for the appeal is the threat the President faces.
She further says for the Prime Minister’s counsel Simione Valenitabua to say that the Acting FICAC Commissioner's appointment has been regularised is incorrect as Justice Siainiu Fa'alogo Bull has ruled that the decision should be made by way of a Judicial Review application.
Waqanika says Acting Commissioner Lavi Rokoika has not gone through the JSC process and was not shortlisted.
The counsel says she does not know what FICAC's instability Valenitabua is referring to when he talks about stability in his submission.
She says the only thing the judiciary and the nation are experiencing right now is instability caused by the actions of the Prime Minister and the President.
She claims they have created a constitutional crisis and, effectively, a constitutional coup.
Waqanika says Valenitabua's argument that the Prime Minister, as member of the Cabinet, can make a recommendation on FICAC Commissioner's appointment is of concern as there are MPs who have cases with FICAC.
Waqanika says Valenitabua's argument that the Prime Minister, as member of the Cabinet, can make a recommendation on FICAC Commissioner's appointment is of concern as there are MPs who have cases with FICAC.
She says it would be abuse and stresses that there is a clear separation of powers of the Constitutional Offices Commission and the Cabinet.
The counsel, while referring to Rokoika as a usurper, stresses that any advice of Cabinet to Rokoika is of concern.
Waqanika also says that Malimali has been cleared of allegations made against her in the Commission of Inquiry report.
She adds that if the stay is not granted, the Prime Minister will not be affected however, Malimali's appointment ends in September next year and she remains in a state of limbo and without a job.
While making his submission, Valenitabua says the Prime Minister has the authority to recommend to the President on the appointment under Section 82 of the Constitution, which states that the President acts only on the advice of Cabinet or a Minister or of some other body or authority prescribed by the Constitution for a particular purpose as the body or authority on whose advice the President acts in that case.
He says the Prime Minister is also a Minister and Section 5 of the FICAC Act does not effect the President's advisory powers and the JSC is not an authority prescribed by the Constitution to exercise the powers.
Section 5 of the FICAC Act specifies that the Commissioner is appointed by the President, acting on the recommendation of the Judicial Services Commission (JSC), following consultation by the JSC with the Attorney-General.
Valenitabua also says that if we play musical chairs with the FICAC appointment, it is going to affect the stability at FICAC.
When questioned by Justice Tuiqereqere that he had argued during the hearing on Malimali's dismissal that Section 5 of the FICAC Act is unlawful, Valenitabua says he is not sure and even if he did, he will ask the Appeal's Court for leave to argue a new point of law.
Justice Tuiqereqere stresses that it is not a new point of law as he had already made a decision, however, Valenitabua says in dealing with it, the judge made errors with law.
He says that the judge's conclusion that Section 5 is inconsistent with the Constitution, therefore only the Prime Minister and the Cabinet can advise the President on the appointment and removal.
Valenitabua also says that the appeal hearing could realistically be next year.
When questioned on whether the appeal is being filed against legal advise, Valenitabua says the Prime Minister, on his own volition, decided to appeal the decision.
He also confirmed that a King's Counsel will be representing the Prime Minister in the appeals case.
Deputy Solicitor General Eliesa Tuiloma stated that he supports the Prime Minister's application. However, he also confirmed that they, as counsel, agreed with Justice Tuiqereqere's decision, but his client wants to appeal, so they will proceed with the appeal.
Meanwhile, Justice Tuiqereqere remarked that he is being asked to make orders staying something that he did not rule on.
He had ruled that Malimali's dismissal as FICAC Commissioner by the President on the advice of the Prime Minister was unlawful, however, he had not made any decision on the reappointment, leaving it to the JSC.
