| The Judicial Services Commission has launched an extraordinary counterattack against the findings of the Commission of Inquiry (COI) into the appointment of Barbara Malimali as the Commissioner of the Fiji Independent Commission Against Corruption (FICAC). In a press release issued by FA & Company on 18 September 2025, the JSC confirmed that it has filed an application for judicial review, seeking to quash the COI Report dated 1 May 2025. The application, lodged on 17 September, asks the High Court for an order of certiorari to strike down the COI’s findings and recommendations, together with a range of declaratory relief. Certiorari is a court order used to quash or nullify a decision, report, or ruling made without lawful authority or in breach of natural justice. This move is no ordinary legal challenge. It raises the spectre of a looming constitutional crisis if the courts uphold the COI’s controversial interpretations. |  |
JSC Accuses COI of “Perverse” Interpretations
The JSC argues that the COI’s findings were not only inconsistent with the evidence presented before it, but were also based on flawed statutory and constitutional interpretations. Two key provisions are at the heart of the dispute:
According to the JSC, the COI’s interpretation of these provisions is “perverse” and risks derailing Fiji’s established legal order. In particular, the Commission claims that the COI’s reading of section 82 of the Constitution undermines the JSC’s independent performance of its constitutional role.
The press release from Fa & Company issues a stark warning: unless corrected, the COI’s interpretation “will result in a constitutional crisis in Fiji in the near future.”
COI Report Weaponised Against JSC
Beyond the black-letter law, the JSC is also clearly angered by what it describes as the political “weaponisation” of the COI’s findings.
“Since the COI Report became public, the contents of the Report have been weaponised against the JSC and its officers,” the statement declares. This, they argue, is improper not least because evidence before a Commission of Inquiry cannot ordinarily be admitted in court proceedings, save for narrow exceptions under the COI Act 1946.
The JSC insists that criticisms against it and its officers “have no merits and will be purged in these proceedings.”
In a pointed warning to political actors and media outlets, the release urges all those “politicising the findings and recommendations” to desist, threatening possible legal action against those who continue to attack the JSC on the basis of the COI report.
A Legal Clash with Far-Reaching Consequences
The JSC’s application is more than a mere technical dispute. It reflects a deeper power struggle over Fiji’s anti-corruption apparatus, judicial independence, and constitutional governance.
At stake is the delicate balance between Parliament, the Executive, and the Judiciary, all mediated through Fiji’s controversial 2013 Constitution.
Critics have long argued that section 82 centralises too much power in the JSC, while shielding it from meaningful accountability. On the other hand, defenders of the JSC view it as one of the last institutional checks preventing political interference in judicial and quasi-judicial appointments.
The COI, by siding with a restrictive view of the JSC’s role, has opened a fault line. If its recommendations stand, the President’s discretion, and by extension, the government of the day, may be seen as expanding at the expense of the JSC’s authority.
A Looming Constitutional Crisis
The language of the JSC’s press release is not subtle. By warning of a “constitutional crisis”, the Commission is making clear that it sees the COI’s recommendations as striking at the very heart of the constitutional order.
We note that this is not mere rhetoric. If the courts endorse the COI’s reasoning, it may trigger a cascade of challenges over past and future appointments, not only at FICAC but potentially in other integrity institutions as well.
The standoff also risks drawing Fiji into a repeat of past crises where competing interpretations of the Constitution have been used to justify political upheaval.
Editorial Note: Law, Politics, and the Erosion of Public Confidence
For ordinary Fijians, this legal battle will appear yet another round of high-stakes infighting within the corridors of power. But the implications are profound.
If the COI’s findings stand, the JSC’s independence could be permanently curtailed. If the JSC succeeds, critics will accuse it of shielding itself from scrutiny and accountability.
Either way, the ongoing politicisation of constitutional institutions, whether through commissions of inquiry, court proceedings, or political manoeuvres, risks further eroding public trust.
In this context, the JSC’s warning against “weaponising” the COI report rings hollow. Once released, such reports inevitably become political footballs. The real issue is not whether the report is politicised, but whether Fiji’s constitutional framework can withstand the blows now being dealt to it from every side.
Conclusion
The JSC’s judicial review application is a pivotal test. The courts will now be asked to decide not only on the correctness of the COI’s legal reasoning but also on the very boundaries of constitutional power.
This is not a mere skirmish over statutory interpretation. It is a struggle for the soul of Fiji’s constitutional order, and one that may well determine whether the promise of independent institutions can survive in the years to come.
The JSC argues that the COI’s findings were not only inconsistent with the evidence presented before it, but were also based on flawed statutory and constitutional interpretations. Two key provisions are at the heart of the dispute:
- Sections 5(1), 7(1) and 10(1) of the FICAC Act 2007 – governing the appointment and powers of the Commissioner of FICAC.
- Section 82 of the 2013 Constitution – which assigns the JSC a constitutional role in advising the President on appointments to the FICAC Commissioner position.
According to the JSC, the COI’s interpretation of these provisions is “perverse” and risks derailing Fiji’s established legal order. In particular, the Commission claims that the COI’s reading of section 82 of the Constitution undermines the JSC’s independent performance of its constitutional role.
The press release from Fa & Company issues a stark warning: unless corrected, the COI’s interpretation “will result in a constitutional crisis in Fiji in the near future.”
COI Report Weaponised Against JSC
Beyond the black-letter law, the JSC is also clearly angered by what it describes as the political “weaponisation” of the COI’s findings.
“Since the COI Report became public, the contents of the Report have been weaponised against the JSC and its officers,” the statement declares. This, they argue, is improper not least because evidence before a Commission of Inquiry cannot ordinarily be admitted in court proceedings, save for narrow exceptions under the COI Act 1946.
The JSC insists that criticisms against it and its officers “have no merits and will be purged in these proceedings.”
In a pointed warning to political actors and media outlets, the release urges all those “politicising the findings and recommendations” to desist, threatening possible legal action against those who continue to attack the JSC on the basis of the COI report.
A Legal Clash with Far-Reaching Consequences
The JSC’s application is more than a mere technical dispute. It reflects a deeper power struggle over Fiji’s anti-corruption apparatus, judicial independence, and constitutional governance.
At stake is the delicate balance between Parliament, the Executive, and the Judiciary, all mediated through Fiji’s controversial 2013 Constitution.
Critics have long argued that section 82 centralises too much power in the JSC, while shielding it from meaningful accountability. On the other hand, defenders of the JSC view it as one of the last institutional checks preventing political interference in judicial and quasi-judicial appointments.
The COI, by siding with a restrictive view of the JSC’s role, has opened a fault line. If its recommendations stand, the President’s discretion, and by extension, the government of the day, may be seen as expanding at the expense of the JSC’s authority.
A Looming Constitutional Crisis
The language of the JSC’s press release is not subtle. By warning of a “constitutional crisis”, the Commission is making clear that it sees the COI’s recommendations as striking at the very heart of the constitutional order.
We note that this is not mere rhetoric. If the courts endorse the COI’s reasoning, it may trigger a cascade of challenges over past and future appointments, not only at FICAC but potentially in other integrity institutions as well.
The standoff also risks drawing Fiji into a repeat of past crises where competing interpretations of the Constitution have been used to justify political upheaval.
Editorial Note: Law, Politics, and the Erosion of Public Confidence
For ordinary Fijians, this legal battle will appear yet another round of high-stakes infighting within the corridors of power. But the implications are profound.
If the COI’s findings stand, the JSC’s independence could be permanently curtailed. If the JSC succeeds, critics will accuse it of shielding itself from scrutiny and accountability.
Either way, the ongoing politicisation of constitutional institutions, whether through commissions of inquiry, court proceedings, or political manoeuvres, risks further eroding public trust.
In this context, the JSC’s warning against “weaponising” the COI report rings hollow. Once released, such reports inevitably become political footballs. The real issue is not whether the report is politicised, but whether Fiji’s constitutional framework can withstand the blows now being dealt to it from every side.
Conclusion
The JSC’s judicial review application is a pivotal test. The courts will now be asked to decide not only on the correctness of the COI’s legal reasoning but also on the very boundaries of constitutional power.
This is not a mere skirmish over statutory interpretation. It is a struggle for the soul of Fiji’s constitutional order, and one that may well determine whether the promise of independent institutions can survive in the years to come.
 The Acting Commissioner of the Fiji Independent Commission Against Corruption (FICAC), Lavi Rokoika, has confirmed she is receiving her salary, despite the JSC not recognising her appointment and questions over the legitimacy of her appointment. “I was appointed by the President. My appointment letter was given to me on 29 May, and I have been paid,” Rokoika told Mai TV when asked whether she had been remunerated since her appointment. Sources tell Mai TV that the PM’s Office through the Solicitor General had written to the JSC asking them to officiate the terms and conditions of remuneration, but the JSC had written back saying they could not do so as they were not the appointing authority and had not been involved in her appointment. |  |
Rokoika’s appointment was made without the involvement of the Judicial Services Commission (JSC), as set out in Section 115(12) of the 2013 Constitution. That provision states that the Commissioner and Deputy Commissioner of FICAC are entitled to remuneration determined by the President acting on the advice of the JSC, following consultation with the Attorney-General.
Instead, Rokoika’s appointment—announced via a May 29 press statement from Prime Minister Sitiveni Rabuka’s office—came directly from President Ratu Naiqama Lalabalavu on the advice of the Prime Minister. The Prime Minister’s press release cited sections 81(2) and (3) of the Constitution as the legal basis for the appointment, without reference to Section 115(12) or the JSC.
Sources told Mai TV that the JSC could not officiate her remuneration because it has not participated in the appointment itself, and doing so could amount to an abuse of office. Source: Mai TV, 19 September 2025
Instead, Rokoika’s appointment—announced via a May 29 press statement from Prime Minister Sitiveni Rabuka’s office—came directly from President Ratu Naiqama Lalabalavu on the advice of the Prime Minister. The Prime Minister’s press release cited sections 81(2) and (3) of the Constitution as the legal basis for the appointment, without reference to Section 115(12) or the JSC.
Sources told Mai TV that the JSC could not officiate her remuneration because it has not participated in the appointment itself, and doing so could amount to an abuse of office. Source: Mai TV, 19 September 2025
FICAC Acting Chief’s Pay Sparks Constitutional Firestorm: Why the JSC is Right to Resist
Why We Must Enter the Debate on FICAC: Standing Firm Against Political Evasion of Justice
We enter this debate not as idle commentators but as complainants whose own cases are at stake. Our detailed complaints against Finance Minister Biman Prasad, which the then FICAC Commissioner Barbara Malimali wrongfully closed, remain unresolved.
Now, with her successor Lavi Rokoika confirming she is being paid despite the Judicial Services Commission (JSC) refusing to recognise her appointment, the stakes are even higher. If she takes our legal analysis personally, there is a real risk our complaints could be sidelined once again.
But this is precisely why we must stand firm. We will continue to insist, as we have consistently, that Biman Prasad must be charged and brought before the courts, as was originally scheduled for 5 September. To retreat now would be to accept that constitutional shortcuts and political convenience can override the rule of law.
Just as we defend the JSC’s right to resist unconstitutional appointments, we defend our right to demand accountability at the highest levels of government. The rule of law requires nothing less.
We enter this debate not as idle commentators but as complainants whose own cases are at stake. Our detailed complaints against Finance Minister Biman Prasad, which the then FICAC Commissioner Barbara Malimali wrongfully closed, remain unresolved.
Now, with her successor Lavi Rokoika confirming she is being paid despite the Judicial Services Commission (JSC) refusing to recognise her appointment, the stakes are even higher. If she takes our legal analysis personally, there is a real risk our complaints could be sidelined once again.
But this is precisely why we must stand firm. We will continue to insist, as we have consistently, that Biman Prasad must be charged and brought before the courts, as was originally scheduled for 5 September. To retreat now would be to accept that constitutional shortcuts and political convenience can override the rule of law.
Just as we defend the JSC’s right to resist unconstitutional appointments, we defend our right to demand accountability at the highest levels of government. The rule of law requires nothing less.
Fiji is once again standing on the edge of a constitutional precipice. Acting FICAC Commissioner Lavi Rokoika has confirmed she is receiving a salary, even though the Judicial Services Commission (JSC) refuses to recognise her appointment or to set her terms of remuneration.
This admission, simple on its face, reveals a deeper fracture in Fiji’s governance: the bypassing of constitutional safeguards designed to keep corruption fighters independent of the government of the day.
The controversy is not merely about one person’s pay packet. It is about whether the 2013 Constitution’s checks and balances still mean anything when they stand in the way of political expedience.
The Legal Framework: Section 115(12)
At the core of this dispute lies Section 115(12) of the 2013 Constitution. It states:
“The Commissioner and Deputy Commissioner of the Fiji Independent Commission Against Corruption are entitled to remuneration determined by the President on the advice of the Judicial Services Commission, following consultation by the Judicial Services Commission with the Attorney-General.”
The wording is unambiguous. For remuneration to be validly set:
It is a three-step safeguard. This framework was no accident. FICAC was created in 2007 and entrenched under the 2013 Constitution precisely to ensure that its Commissioner could not be beholden to political favour (the reverse was on display).
What Actually Happened
On 29 May 2025, the President announced Rokoika’s appointment as Acting Commissioner “on the advice of the Prime Minister,” citing sections 81(2) & (3) of the Constitution (relating to presidential appointments generally).
This raises two questions:
The JSC has refused to “officiate” her pay, warning that to do so would itself constitute abuse of office, since it would legitimise an appointment it considers constitutionally defective.
The JSC’s Judicial Review
On 17 September 2025, the JSC escalated matters by filing a judicial review application, seeking to quash the Commission of Inquiry (COI) Report that had criticised its role in appointments.
In a striking press release, the JSC declared that the COI’s interpretations of the Constitution were “perverse” and, if left uncorrected, would trigger a constitutional crisis.
The JSC’s legal challenge directly contests the government’s attempt to stretch constitutional provisions to suit political convenience.
Legal Analysis
1. Appointment vs. Remuneration
The government relies on s. 81(2) & (3) to justify the President’s power to act on the Prime Minister’s advice in making acting appointments. But s. 115(12) is a specific provision for FICAC, and under well-established principles of constitutional interpretation, specific provisions override general ones (generalia specialibus non derogant).
Thus, even if s.81(2) could justify an appointment, remuneration cannot lawfully be set without the JSC’s advice.
2. Payment Without Constitutional Authority
Payments made to Rokoika without JSC advice may be ultra vires. Under the Financial Management Act 2004, all public expenditure must be lawfully appropriated. Paying an officer whose appointment procedure is unconstitutional risks being categorised as unlawful expenditure, opening potential liability for abuse of office.
3. De Facto Officer Doctrine?
Rokoika could argue she is a de facto officer, that is, even if her appointment was defective, the acts done under her authority remain valid to avoid chaos. Courts sometimes apply this doctrine to protect the public from uncertainty.
But this doctrine is applied sparingly, and courts are reluctant to excuse unconstitutional procedures for high-level integrity offices.
4. Abuse of Office Risks
The JSC is correct to warn of abuse of office. If it were to rubber-stamp remuneration after being excluded from the appointment, it would legitimise a breach of the Constitution. By refusing, it is protecting its own institutional integrity, and arguably upholding the rule of law.
Political and Institutional Implications
This saga is not just a legal battle. It exposes:
Why This Matters
Fiji has been down this road before. Every constitutional rupture, from 1987 to 2006, began with politicians bending institutions to their will.
Section 115(12) is a line in the sand, drawn precisely to stop political leaders from dictating who runs the country’s anti-corruption watchdog. To allow that line to be crossed without consequence is to erode one of the last safeguards left in the 2013 Constitution.
The JSC’s judicial review is therefore not mere institutional self-defence. It is a test of whether the Constitution still has enforceable meaning.
Conclusion
The legal position is clear: Rokoika’s remuneration is unconstitutional without the JSC’s advice, and the JSC is right to resist. Payments made to her may be challenged as unlawful, and the courts will likely side with the JSC on the interpretation of section 115(12).
But the broader issue is even starker: if the Executive can override constitutional procedures at will, Fiji risks sliding into yet another cycle of institutional capture and constitutional crisis.
The rule of law cannot survive if the Constitution’s safeguards are treated as optional. The JSC has drawn the line. The question is whether Fiji’s courts will stand with it. And,
This admission, simple on its face, reveals a deeper fracture in Fiji’s governance: the bypassing of constitutional safeguards designed to keep corruption fighters independent of the government of the day.
The controversy is not merely about one person’s pay packet. It is about whether the 2013 Constitution’s checks and balances still mean anything when they stand in the way of political expedience.
The Legal Framework: Section 115(12)
At the core of this dispute lies Section 115(12) of the 2013 Constitution. It states:
“The Commissioner and Deputy Commissioner of the Fiji Independent Commission Against Corruption are entitled to remuneration determined by the President on the advice of the Judicial Services Commission, following consultation by the Judicial Services Commission with the Attorney-General.”
The wording is unambiguous. For remuneration to be validly set:
- The President must act;
- The JSC must advise;
- The Attorney-General must be consulted.
It is a three-step safeguard. This framework was no accident. FICAC was created in 2007 and entrenched under the 2013 Constitution precisely to ensure that its Commissioner could not be beholden to political favour (the reverse was on display).
What Actually Happened
On 29 May 2025, the President announced Rokoika’s appointment as Acting Commissioner “on the advice of the Prime Minister,” citing sections 81(2) & (3) of the Constitution (relating to presidential appointments generally).
- The JSC was excluded from the process.
- Despite this, Rokoika has been receiving pay, reportedly funded through government channels.
This raises two questions:
- If the JSC was bypassed, who advised the President on remuneration?
- On what constitutional basis is Rokoika being paid?
The JSC has refused to “officiate” her pay, warning that to do so would itself constitute abuse of office, since it would legitimise an appointment it considers constitutionally defective.
The JSC’s Judicial Review
On 17 September 2025, the JSC escalated matters by filing a judicial review application, seeking to quash the Commission of Inquiry (COI) Report that had criticised its role in appointments.
In a striking press release, the JSC declared that the COI’s interpretations of the Constitution were “perverse” and, if left uncorrected, would trigger a constitutional crisis.
The JSC’s legal challenge directly contests the government’s attempt to stretch constitutional provisions to suit political convenience.
Legal Analysis
1. Appointment vs. Remuneration
The government relies on s. 81(2) & (3) to justify the President’s power to act on the Prime Minister’s advice in making acting appointments. But s. 115(12) is a specific provision for FICAC, and under well-established principles of constitutional interpretation, specific provisions override general ones (generalia specialibus non derogant).
Thus, even if s.81(2) could justify an appointment, remuneration cannot lawfully be set without the JSC’s advice.
2. Payment Without Constitutional Authority
Payments made to Rokoika without JSC advice may be ultra vires. Under the Financial Management Act 2004, all public expenditure must be lawfully appropriated. Paying an officer whose appointment procedure is unconstitutional risks being categorised as unlawful expenditure, opening potential liability for abuse of office.
3. De Facto Officer Doctrine?
Rokoika could argue she is a de facto officer, that is, even if her appointment was defective, the acts done under her authority remain valid to avoid chaos. Courts sometimes apply this doctrine to protect the public from uncertainty.
But this doctrine is applied sparingly, and courts are reluctant to excuse unconstitutional procedures for high-level integrity offices.
4. Abuse of Office Risks
The JSC is correct to warn of abuse of office. If it were to rubber-stamp remuneration after being excluded from the appointment, it would legitimise a breach of the Constitution. By refusing, it is protecting its own institutional integrity, and arguably upholding the rule of law.
Political and Institutional Implications
This saga is not just a legal battle. It exposes:
- Executive Overreach: By bypassing the JSC, the government risks concentrating power over anti-corruption appointments in the hands of the Prime Minister.
- Judicial Independence Under Siege: The JSC is now in open confrontation with the Executive, a dangerous dynamic in a country with a history of constitutional breakdowns.
- Public Confidence in FICAC: For FICAC to function credibly, its leadership must be unimpeachable. The perception that its head was installed via constitutional shortcuts damages its authority from day one.
Why This Matters
Fiji has been down this road before. Every constitutional rupture, from 1987 to 2006, began with politicians bending institutions to their will.
Section 115(12) is a line in the sand, drawn precisely to stop political leaders from dictating who runs the country’s anti-corruption watchdog. To allow that line to be crossed without consequence is to erode one of the last safeguards left in the 2013 Constitution.
The JSC’s judicial review is therefore not mere institutional self-defence. It is a test of whether the Constitution still has enforceable meaning.
Conclusion
The legal position is clear: Rokoika’s remuneration is unconstitutional without the JSC’s advice, and the JSC is right to resist. Payments made to her may be challenged as unlawful, and the courts will likely side with the JSC on the interpretation of section 115(12).
But the broader issue is even starker: if the Executive can override constitutional procedures at will, Fiji risks sliding into yet another cycle of institutional capture and constitutional crisis.
The rule of law cannot survive if the Constitution’s safeguards are treated as optional. The JSC has drawn the line. The question is whether Fiji’s courts will stand with it. And,
- Whether the appointment of Ms. Lavi Rokoika as Acting Commissioner of the Fiji Independent Commission Against Corruption (FICAC) was valid under the 2013 Constitution.
- Whether her remuneration is valid where the Judicial Services Commission (JSC) did not advise the President as required by s. 115(12) of the Constitution.
- Whether payments made to Ms. Rokoika in these circumstances constitute unlawful expenditure under the Financial Management Act 2004.
- What consequences arise for pending complaints and prosecutions if her appointment is found to be defective.
Fijileaks on FA & Company's Press Release
Weaponisation Claim Is Weak
*Public debate on COI findings is not unlawful. Unless defamatory statements are made, criticism of the JSC cannot be “purged” simply by legal threat.
*In fact, the warning to critics may embolden those who see the JSC as an institution unwilling to face accountability.
