Fiji Law Society Questions Legality of FICAC Suspensions and Appointments

The Fiji Law Society has issued a strong statement questioning the legality of recent decisions by His Excellency the President and Prime Minister Sitiveni Rabuka to suspend FICAC Commissioner Ms. Barbara Malimali, dismiss the Acting Deputy Commissioner, and appoint a replacement.

According to the Society, these actions appear to have been taken on the Prime Minister’s advice following the release of the Commission of Inquiry (COI) report into Ms. Malimali’s appointment. However, the Society insists that under the Constitution, the President has no power to act on the Prime Minister’s advice in this matter.

“The Prime Minister has no constitutional role in the appointment or discipline of the FICAC Commissioner or Acting Deputy Commissioner. That is the role of the Judicial Services Commission (JSC),” the statement said.

The Society warned that the decisions appear to breach constitutional provisions on the separation of powers, a foundational principle intended to protect the independence of institutions like FICAC and ensure rule of law.

Section 82 of the Constitution, the Society explained, clearly states that the President can only act on the advice of the legally prescribed authority for a particular matter. In the case of FICAC appointments and suspensions, that authority is the JSC—not the Prime Minister or Cabinet.

“If there has been no advice or recommendation from the JSC to His Excellency in relation to Ms. Malimali, then the decision to suspend her is unlawful,” the Society said.

The Society also criticised the re-appointment of the dismissed Acting Deputy Commissioner to the Magistracy, and the appointment of an acting FICAC Commissioner—again without any indication of JSC involvement. It described these steps as equally unlawful and said the decisions are likely to be legally challenged.

The Society believes both the President and Prime Minister have been poorly advised about their constitutional powers and warned that these decisions are only creating further uncertainty around FICAC and its leadership.

Adding to the controversy, the Society noted that the public has not been given access to the full COI report. Yet the Prime Minister has justified the suspensions and appointments on the basis of that report. “It is only fair that those named in the report—including Ms. Malimali and the now-dismissed Attorney-General Mr. Graham Leung—are allowed to see and respond to the findings,” it said.

The Society emphasised that COI findings can be challenged in court and warned against using them as the basis for executive action without due process.

“Whatever problems they are trying to solve through these actions, they are only creating further problems by acting outside the law,” the Society stated.

It urged the President to reconsider the decisions made against the FICAC officials and to seek independent legal advice. The same request was made of the Prime Minister, who the Society said has clearly been misadvised.

“The FICAC saga has already distracted the Government for many months. Rather than resolving the issue, these actions will likely extend the controversy,” the Society said.

The statement concluded by warning that the continued political interference in independent institutions is harmful to Fiji’s democratic stability and the rule of law.