SECTION 5(1) of the FICAC Act 2007 highlights:
'The Commissioner shall be appointed by the President on the recommendation of the JSC following consultation by the JSC with the Attorney-General.'
*Even if the FICAC Act does not specify and expressly states suspension, Clause 5 provides sufficient words which can be reasonably interpreted to include suspension, removal and termination of the FICAC Commissioner, in this case that of |  |
*Section 44 of the Interpretation Act specifically states that the power to appoint also means the power to suspend, remove etc, so LEUNG stop playing the legal fool. If not, you should RESIGN as A-G and Malimali's side-kick and Solicitor-General Ropate Green should also RESIGN.
*Has CJ Salesi Temo gone ROGUE and is manipulating the law?
 Temo |  Malimali |  Green |  Leung |
*Section 5 (1) and (3) of the FICAC Act 2007 is clear that it is the JSC who recommends to the President not only the appointment of the FICAC Commissioner but also terms and conditions of the office. This would mean that suspension of Barbara Malimali would have to be recommended by the JSC to the President for his necessary action.
*While we agree that the JSC does not have the power to suspend, it can recommend to the President, Malimali's suspension.
The FICAC Amendment Act 2016 under Section 5(1) says:
The Commissioner shall be appointed by the President.
*And Section 5 (3) says:
The Commissioner shall hold office on such terms and conditions as the President may think fit.
*One can therefore conclude that the President has the powers to appoint the Commissioner including other powers which covers removal to the work of the officer as the President considers fit.
*Looking at Section 115 of the Constitution on FICAC, there is nothing there on the removal or suspension of Ficac Commissioner.
*Section 104 on the JSC also says nothing on the removal or suspension of the JSC.
*The JSC's actions and behaviour of the Chief Justice Temo in relation to the removal of Francis Puleiwai suggests that the JSC had the administrative responsibility to recommend the removal of Pulewai which consequently led to the JSC recommending Malimali to the President for his appointment.
*Just look at an extract of the vacancy on the post of FICAC Commissioner that was advertised by the JSC. We will note that the JSC clearly states their administrative function to recommend to the President the name of the successful candidate for his appointment.
*It therefore stands to reason that their administrative function will also include recommending the removal or suspension of the Ficac Commissioner.
*The JSC is just indulging in legal gymnastics to protect MALIMALI.
*Even if the FICAC Act does not specify and expressly states suspension, Clause 5 provides sufficient words which can be reasonably interpreted to include the suspension, removal and termination of the FICAC Commissioner, in this case of Barbara Malimali.
*Section 44 of the Statutory Interpretation Act leaves absolutely no doubt that the power to appoint also means the power to suspend, remove and terminate.
*So when one reads all these relevant clauses together, then the JSC has the advisory or recommendation capacity to advise the President for suspension or termination of Malimali as FICAC Commissioner.
*Generally, as is the case in New Zealand, the power to appoint includes the power to suspend or dismiss. In Fiji, this is contained in section 44 of the Interpretation Act 1967 (“the Interpretation Act”), which states:
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 reappoint 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 reappoint, reconstitute or re-establish the same, provided that where the power or duty of such person or authority so to act is exercisable only upon the recommendation, or is subject to the approval or consent, of some other person or authority, then such powers shall, unless a contrary intention appears, be exercisable only upon such recommendation or subject to such approval or consent. 14.
*In the current circumstances, it is clear that Ms. Malimali’s continued occupation of the position of FICAC Commissioner, is allowing her to interfere with the COl’s work.
*The whole sordid saga will blow up in CJ Temo, A-G Leung and S-G Ropate Green's faces - including in the faces of other shadowy figures.
*Leung stresses that Malimali was duly appointed by the President, on the advice of the Judicial Services Commission, as the law requires.
*He is the Cabinet Minister with responsibility for FICAC.
*In accordance with Section 44 of the Interpretation Act, the process of suspending Malimali would involve the JSC consulting the Attorney-General, GRAHAM LEUNG.
