Court refuses stay in Malimali case appeal

Fiji's High Court has denied Prime Minister Sitiveni Rabuka's attempt to temporarily halt a previous ruling that impacts the removal of former FICAC Commissioner Barbara Malimali, as his appeal proceeds. Justice Dane Tuiqerqere ruled that the court cannot grant a stay of a declaratory order, which formed the foundation of the earlier judgment.

The Prime Minister had sought this stay as part of his appeal against Justice Tuiqerqere's prior finding. This finding established that the Judicial Services Commission, rather than the Prime Minister, holds the authority to advise the President on matters concerning the appointment and removal of the Commissioner.

The case originated from Malimali's appointment in 2020, followed by a Commission of Inquiry into her appointment and her subsequent removal in June 2025, based on the Prime Minister's advice to the President. Malimali challenged this removal in court, seeking declarations that it was unlawful and an order for her reinstatement.

While Justice Tuiqerqere's earlier ruling did not order reinstatement, it determined that the power to advise the President on such matters rests with the Judicial Services Commission. In the latest decision, the court considered arguments from the Prime Minister, the Attorney-General, and the President, all supporting the stay application. However, Justice Tuiqerqere concluded that a stay cannot be granted over declaratory orders and that the application did not meet the necessary legal threshold. The court acknowledged the significant constitutional importance of the issues, which will ultimately be decided by the Court of Appeal.

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The court ruled that it had no legal power to grant a stay of a declaratory order, which formed the basis of the earlier judgment.