The Commission of Inquiry (COI) investigating the validity of FICAC Commissioner Barbara Malimali’s appointment maintains that the Judicial Services Commission (JSC) has the authority to suspend or dismiss Malimali, despite the absence of an explicit provision in either the 2013 Constitution or the FICAC Act 2007.
Senior Counsel Assisting the COI, Janet Mason, argues that although these two acts are silent on removal, Section 44 of the Interpretation Act grants the JSC this power. She made these comments after being informed that the JSC did not have the authority to suspend Malimali, in response to the COI’s recommendation that Malimali be suspended for the duration of the inquiry.
“The response of the JSC is that they don’t have the powers to suspend Ms Malimali,” Mason said. “Now they are entitled, they are an independent entity. They are entitled to have their own opinion. So we will respect that.
“But the opinion of the COI is that they have the power to do so. So that is where things are at. We are trying to work through that because obviously, it’s a big issue.
“So one view is that because the constitution is silent and the FICAC Act is silent, then Ms Malimali can’t be suspended. Now the view of the COI is that in this instant, there is a provision in the Interpretation Act Section 44 which kicks in and that provision states that with any statutory appointment, the power to appoint includes the powers to suspend and dismiss. Now that is the view of the COI. That is our view.”
Section 44 of the Interpretation Act reads:
“Where by or under any written law a power or duty is conferred or imposed upon any person or authority to make any appointment or to constitute or establish any board, commission, committee or similar body, then, unless a contrary intention appears, the person or authority having such power or duty shall also have the power to remove, suspend, dismiss or revoke the appointment, of, and to re-appoint or reinstate, any person appointed in the exercise of the power or duty, or to revoke the appointment, constitution or establishment of, or dissolve, any board, commission, committee or similar body appointed, constituted or established, in exercise of such power or duty, and to re-appoint, reconstitute or establish the same“
While the 2013 Constitution does not specify the process for the appointment or removal of the FICAC Commissioner, the FICAC Act partially addresses the appointment process. According to Section 5(1) of the FICAC Act, the Commissioner is appointed by the President on the recommendation of the Judicial Services Commission, after consultation with the Attorney General. However, Section 5, or any other section of the FICAC Act, provides no details regarding the removal or dismissal of the FICAC Commissioner.
If Section 44 of the Interpretation Act is invoked, it grants the President—the authority referenced in the FICAC Act—the power to remove the FICAC Commissioner.
In a letter to the JSC last week, a day after key witness FICAC Manager of Investigations Kuliniasi Saumi was fired, the COI recommended Malimali’s suspension, citing the protection of the process and witnesses. Saumi is one of more than 20 witnesses who have testified before the COI in the ongoing inquiry into Malimali’s appointment. His testimony is believed to be one of the longest hearings before the COI, lasting four days.
The inquiry began on January 6 and was initially scheduled to be completed with the handing over of the report today. However, the COI is expected to continue next week.
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