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Coming Soon: Public Funds, Personal Defence, and Possible Criminal Exposure: $$$ That Will Not Disappear. Malimali-Waqanika Payments
Fijileaks: The debate surrounding the status of Lavi Rokoika as Acting Commissioner of the Fiji Independent Commission Against Corruption (FICAC) has largely been framed in rigid constitutional terms. Much of the public commentary asserts that if the Judicial Services Commission (JSC) recommends termination of her appointment, the President must act immediately and without condition. Within that framing, any discussion of compensation has been portrayed as improper or constitutionally suspect.
That view, however, conflates constitutional obligation with equitable treatment. A more balanced legal analysis suggests that consideration of compensation for Lavi Rokoika may be both legitimate and fair, particularly given the circumstances under which she accepted the acting role.
Acceptance of Acting Office and Personal Sacrifice
An acting appointment to a high constitutional office is not merely administrative. It involves the assumption of significant authority, public scrutiny, and reputational exposure. When a legal practitioner accepts such an appointment, the decision often carries personal and professional consequences.
Lavi Rokoika accepted the acting position while leaving her husband to manage their law firm, Rokoika & Vakalalabure. That transition was not nominal. For a practitioner at that level, stepping away from private practice can entail loss of income or profit participation, disruption of client relationships, reputational recalibration from private advocate to public prosecutor, and personal and family adjustments.
These are not trivial considerations. They reflect real opportunity cost and professional risk. When the State invites an individual to step into constitutional office, particularly during institutional uncertainty, it implicitly assumes responsibility for fair treatment should circumstances later change.
The Fiji High Court’s Ruling and Institutional Correction
The High Court has ruled that the President’s dismissal of Malimali was unlawful and that appointment and removal power resides exclusively with the JSC. Importantly, the Court did not directly remove Lavi Rokoika. Instead, it remitted the matter to the JSC to determine the status of both office-holders.
This distinction is critical. The Court corrected an unconstitutional act but did not pronounce personal faults on Rokoika. Any termination of her acting tenure would therefore arise from institutional realignment, not misconduct. Where removal flows from constitutional clarification rather than wrongdoing, fairness considerations become particularly salient.
Constitutional Duty and Equitable Implementation
Even if the President is constitutionally bound to act on a JSC recommendation, the existence of that duty does not automatically preclude orderly transitional arrangements. A distinction must be maintained between refusing to comply with a binding constitutional recommendation, and ensuring that implementation does not impose unjust hardship.
If compensation discussions are structured as part of a lawful transition, rather than as a condition for compliance, they are not inherently unconstitutional. Many constitutional systems recognise that removal from office, even when lawful, may be accompanied by
payment in lieu of notice, transitional allowances, and settlement of accrued entitlements. The presence of such arrangements does not undermine constitutional compliance. It reflects administrative fairness.
Good Faith and the De Facto Principle
Lavi Rokoika did not assume office through self-appointment or defiance of constitutional authority. She acted under colour of appointment in circumstances shaped by executive and institutional decisions.
In administrative law, individuals who act in good faith under apparent authority are often protected by doctrines such as the de facto officer principle. While that doctrine primarily safeguards the validity of acts performed in office, it also reflects a broader normative commitment: the law does not penalise those who serve in good faith within complex institutional settings.
If constitutional recalibration now alters the structure within which she served, it would be inequitable for the personal burden to fall exclusively upon her.
Institutional Incentives and Public Service
There is also a broader public interest dimension. Constitutional offices occasionally require capable professionals to step forward during instability or transition. If such individuals face abrupt termination without recognition of professional sacrifice whenever institutional disputes arise, the State risks discouraging qualified candidates from accepting temporary appointments in future.
Fair transitional treatment protects not merely the individual but the credibility of public service.
The present controversy should not be reduced to a binary choice between constitutional obedience and financial indulgence. The Constitution may well require that the JSC’s recommendation be implemented. But constitutional implementation and equitable treatment are not mutually exclusive.
Lavi Rokoika accepted an acting constitutional office at personal and professional cost. She did so in good faith. If institutional correction now requires her tenure to conclude, consideration of compensation may represent not constitutional defiance but principled fairness.
In a constitutional democracy, legality governs power. Fairness governs its exercise. Both principles can, and should, coexist.
That view, however, conflates constitutional obligation with equitable treatment. A more balanced legal analysis suggests that consideration of compensation for Lavi Rokoika may be both legitimate and fair, particularly given the circumstances under which she accepted the acting role.
Acceptance of Acting Office and Personal Sacrifice
An acting appointment to a high constitutional office is not merely administrative. It involves the assumption of significant authority, public scrutiny, and reputational exposure. When a legal practitioner accepts such an appointment, the decision often carries personal and professional consequences.
Lavi Rokoika accepted the acting position while leaving her husband to manage their law firm, Rokoika & Vakalalabure. That transition was not nominal. For a practitioner at that level, stepping away from private practice can entail loss of income or profit participation, disruption of client relationships, reputational recalibration from private advocate to public prosecutor, and personal and family adjustments.
These are not trivial considerations. They reflect real opportunity cost and professional risk. When the State invites an individual to step into constitutional office, particularly during institutional uncertainty, it implicitly assumes responsibility for fair treatment should circumstances later change.
The Fiji High Court’s Ruling and Institutional Correction
The High Court has ruled that the President’s dismissal of Malimali was unlawful and that appointment and removal power resides exclusively with the JSC. Importantly, the Court did not directly remove Lavi Rokoika. Instead, it remitted the matter to the JSC to determine the status of both office-holders.
This distinction is critical. The Court corrected an unconstitutional act but did not pronounce personal faults on Rokoika. Any termination of her acting tenure would therefore arise from institutional realignment, not misconduct. Where removal flows from constitutional clarification rather than wrongdoing, fairness considerations become particularly salient.
Constitutional Duty and Equitable Implementation
Even if the President is constitutionally bound to act on a JSC recommendation, the existence of that duty does not automatically preclude orderly transitional arrangements. A distinction must be maintained between refusing to comply with a binding constitutional recommendation, and ensuring that implementation does not impose unjust hardship.
If compensation discussions are structured as part of a lawful transition, rather than as a condition for compliance, they are not inherently unconstitutional. Many constitutional systems recognise that removal from office, even when lawful, may be accompanied by
payment in lieu of notice, transitional allowances, and settlement of accrued entitlements. The presence of such arrangements does not undermine constitutional compliance. It reflects administrative fairness.
Good Faith and the De Facto Principle
Lavi Rokoika did not assume office through self-appointment or defiance of constitutional authority. She acted under colour of appointment in circumstances shaped by executive and institutional decisions.
In administrative law, individuals who act in good faith under apparent authority are often protected by doctrines such as the de facto officer principle. While that doctrine primarily safeguards the validity of acts performed in office, it also reflects a broader normative commitment: the law does not penalise those who serve in good faith within complex institutional settings.
If constitutional recalibration now alters the structure within which she served, it would be inequitable for the personal burden to fall exclusively upon her.
Institutional Incentives and Public Service
There is also a broader public interest dimension. Constitutional offices occasionally require capable professionals to step forward during instability or transition. If such individuals face abrupt termination without recognition of professional sacrifice whenever institutional disputes arise, the State risks discouraging qualified candidates from accepting temporary appointments in future.
Fair transitional treatment protects not merely the individual but the credibility of public service.
The present controversy should not be reduced to a binary choice between constitutional obedience and financial indulgence. The Constitution may well require that the JSC’s recommendation be implemented. But constitutional implementation and equitable treatment are not mutually exclusive.
Lavi Rokoika accepted an acting constitutional office at personal and professional cost. She did so in good faith. If institutional correction now requires her tenure to conclude, consideration of compensation may represent not constitutional defiance but principled fairness.
In a constitutional democracy, legality governs power. Fairness governs its exercise. Both principles can, and should, coexist.
Severance Pay
I read on Mai TV online news that the President is now seeking a severance pay for Lavi Rokoika. How can the severance pay be negotiated when Rokoika’s appointment did not follow legal and constitutional process. For the President to even pitch this to JSC - this is unlawful!! How can we as taxpayers pay for someone whose appointment is being legally challenged. To add insult- the President negotiates Rokoika’s severance and yet my client has not received her pay from the date her appointment was illegally revoked by the President himself on the advise of the PM.
I read on Mai TV online news that the President is now seeking a severance pay for Lavi Rokoika. How can the severance pay be negotiated when Rokoika’s appointment did not follow legal and constitutional process. For the President to even pitch this to JSC - this is unlawful!! How can we as taxpayers pay for someone whose appointment is being legally challenged. To add insult- the President negotiates Rokoika’s severance and yet my client has not received her pay from the date her appointment was illegally revoked by the President himself on the advise of the PM.
