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The Fiji Law Society says with absence of any advice from the Judicial Services Commission to the President in relation to Barbara Malimali, the decision to suspend her is unlawful.

President Wylie Clarke says it is also equally unlawful for President Ratu Naiqama Lalabalavu to appoint an acting FICAC Commissioner and to dismiss the Deputy Commissioner of FICAC and re-appoint him to the Magistracy without the recommendations of the JSC.

Clarke says the Society is deeply concerned about recent actions taken by the President concerning the Commissioner and Acting Deputy Commissioner of FICAC.

He says according to a statement issued by the Prime Minister on Saturday 29th May 2025, Ratu Naiqama appears to have decided to suspend Malimali, dismiss the Acting Deputy Commissioner (and appoint him Magistrate), and appoint a new Acting Deputy Commissioner on the advice of the Prime Minister.

He states that if that is so, these actions are not constitutional or lawful.

Clarke says the Prime Minister has no constitutional role in the appointment or discipline of the Commissioner and Acting Deputy Commissioner of FICAC.

He highlights that it is the role of the Judicial Services Commission.

Clarke says as a result, the Society does not understand how the Prime Minister believes he can advise the President to suspend Malimali as FICAC Commissioner.

He adds that there is a specific reason why these FICAC appointments are left to the JSC and not to Government Ministers.

He highlights that it is to ensure the “separation of powers”, a critical constitutional concept and fundamental principle of the Rule of Law.

Clarke says specifically in the case of the FICAC Commissioner’s job, it is to avoid political interference in the affairs of FICAC.
Clarke says the Government statement says that Ratu Naiqama acted in accordance with sections 81 and 82 of the Constitution. However s.82 is very clear. The President acts only on the advice of Cabinet or a Minister or of some other body or authority prescribed by this Constitution for a particular purpose as the body or authority on whose advice the President acts in that case.

Clarke says in this case the “prescribed authority” is the JSC. It is not the Prime Minister.

Clarke further states that it appears that both the Prime Minister and the President have been poorly advised on their powers.

He says it is inevitable that these decisions will be legally challenged.

Clarke says this will only create further uncertainty and controversy over the affairs of FICAC and its leadership.

The Prime Minister’s statement says that Ratu Niaqama is implementing recommendations of the Commission of Inquiry into Malimali’s appointment report.

But Clarke states that no one has had the opportunity to read the COI report or to comment on its findings or recommendations and whether or not those findings and recommendations are correct.

He stresses that the findings of the COI report can be challenged in court.

So Clarke says it is only fair that those who are affected by the COI report – including Malimali and the now dismissed Attorney-General, Leung – have the opportunity to see what has been said about them in the COI report and to challenge its conclusions if they wish.

In the meantime, however, Clarke says the President and the Prime Minister must respect the Constitution by which they are bound.

He adds the executive’s intrusion into the functions and roles of the JSC must not be permitted because it sets a precedent that threatens the independence of the judiciary and other constitutional commissions.

According to Clarke whatever problems they are trying to solve in the actions they have taken, they are only creating further problems by acting outside the law.

He says the Society respectfully urges Ratu Naiqama to recall his decisions on the affected FICAC officials and to obtain independent and impartial legal advice on how to proceed.

He adds they make the same request of the Prime Minister, who has been poorly advised on the recommendations he has made to the President.

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