Once again, Sitiveni Rabuka has stunned his opponents with a political and legal manoeuvre that has suddenly turned the tables on them and will have massive ramifications in the countdown to the coming election.
The Prime Minister is being widely derided on Facebook as someone chronically unable to make up his mind because of his latest back-flip in deciding, after all, to appeal the ruling by Justice Dane Tuiqereqere that his sacking of Barbara Malimali as FICAC Commissioner and appointment of Lavi Rokoika as her successor was unlawful. Yet his critics are missing the point.
This is a deft tactical move that not only means that Barbara Malimali is highly unlikely to ever return to FICAC and Lavi Rokoika will remain in place but that the position of the rogue Chief Justice, Salesi Temo – who publicly challenged the Prime Minister’s authority – is now very much on the line.
Even before any hearing in the Court of Appeal – the one court Temo doesn’t control – his position is untenable because of his defiance of the Prime Minister and President in demanding that they remove Lavi Rokoika. He has now been check-mated in humiliating fashion and his days are surely numbered.
Temo can either resign gracefully – claiming to be doing so on a matter of principle – or if the appeal succeeds (and maybe even before that), he faces the prospect of being suspended and tried for misbehaviour. The grounds are there to do so – for the CJ to face a Tribunal of three High Court judges acting on the recommendation of Justice David Ashton-Lewis, who accused Temo of perjury and obstructing and perverting the course of justice.
As for the other alleged “crocodiles” – those individuals adversely named in the Commission of Inquiry Report along with Temo – news of the appeal is also the worst possible news. Assuming leave is granted – and it is inconceivable that it would be refused – all cases currently before Justice Tuiqereqere for judicial review of the CoI Report’s findings would be stayed until the outcome of the appeal is known.
It is a disaster for the likes of Manoa Kamikamica, Biman Prasad, Barbara Malimali, Graham Leung, Wiley Clarke, Laurel Vaurasi (have I forgotten anyone?) plus anyone else hoping to get the findings by Justice Ashton-Lewis set aside.
They would have already been hoping that the Prime Minister’s decision not to appeal Justice Tuiqereqere’s ruling that it was the JSC, not Rabuka, who has the constitutional right to hire and fire the corruption watchdog, would mean that Barbara Malimali would soon be back at FICAC and they would be safe. Those hopes have been dashed, at least until the Court of Appeal judgment.
And if the Court upholds the right of the Prime Minister to have recommended the appointment of Lavi Rokoika as FICAC Commissioner, it is also a setback for the voluble Charlie Charters who would have been similarly hoping that she would be gone and Barbara Malimali – part of Charlie’s social clique in Suva – would be back.
Charlie Charters is already facing one charge of aiding and abetting a FICAC whistleblower and has been openly contemptuous of the proceedings against him. Yet there are reportedly further charges in the pipeline – including violating the Commissions of Inquiry Act with his attacks on Justice Ashton-Lewis. And Charlie’s intemperate reaction on Facebook to the Prime Minister’s change of heart (see below) tells us that he wasn’t expecting Lavi Rokoika to be there much longer. Oh dear.
As for the chances of this appeal succeeding, the Prime Minister – with the evident support of the President – has hired the two Kings Counsel from New Zealand who Grubsheet has long lionised in these columns as the best means to fight the case. Andrew Butler KC will be the principal counsel and be assisted by an “expert witness” in the form of Professor Philip Joseph – New Zealand’s foremost constitutional authority who originally advised the Ashton-Lewis CoI that the Prime Minister had the legal right to appoint and remove FICAC Commissioners.
Grubsheet readers will recall that alone among commentators on Fiji, I have highlighted the constitutional expertise of these eminent outsiders over Justice Tuiqereqere’s record as a relatively inexperienced judge with a background in personal accident compensation.
This fact was studiously ignored in Fijian legal circles and the mainstream media. But the Prime Minister appears to have independently come to the same conclusion. And by hiring Andrew Butler and Philip Joseph – assisted by Rabuka’s lawyer, Simione Valenitabua – he has given himself the best chance of winning this case.
Sitiveni Rabuka has also, at a stroke, transformed a political liability in giving way to a contested judgment into a potential triumph. Because if he wins this appeal, he will be able to go to the nation in the election countdown having had his own political judgment endorsed – not only the removal of Barbara Malimali but in having commissioned Justice Ashton-Lewis to go after the “crocodiles” in the first place.
The notion peddled by those adversely named in the CoI Report that Rabuka was wrong to set up the CoI and it was a flawed process is nonsense. It has uncovered genuine wrongdoing and the perpetrators must be brought to account. Yet these are men and women with a great deal of power and influence in Fiji and they have consistently used that power to discredit and degrade the CoI and especially Justice Ashton-Lewis himself.
The Chief Justice – supported by Charlie Charters – filed an official police complaint against the Judge for allegedly making false claims about his background. Victor Lal at Fijileaks did the same. Yet after a police investigation into these complaints, nothing whatsoever has come of it.
The police file was forwarded to the ODPP for evaluation and the Acting DPP, Nancy Tikoisuva, decided that it didn’t warrant charges being laid. She did this despite the fact that the chief complainant was Head of the Judiciary and the man who had appointed her. So how else are we to regard these complaints as anything other than a crude attempt to destroy the credibility of both the Judge and the CoI?
Sitiveni Rabuka has clearly decided that the rule of law must prevail and justice must take its course. And however much that upsets certain prominent people caught up in this process, the Fijian people will reward him at the ballot box if, indeed, he puts principle before political expediency.
His back-flip on this appeal isn’t a sign of weakness – as his critics are portraying it – but a sign of strength. And as such, it should be welcomed by any Fijian concerned about the assault on the integrity of our institutions of state and the protection of individuals who have come under the blowtorch in a lawfully-constituted Supreme Court Commission of Inquiry and deserve to be brought to account.
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POSTSCRIPT:
The Prime Minister threats of resignation if he loses are the usual theatre. He made the threat of “back me or I’ll walk” when he originally announced that he intended to appeal and that elicited cries of “no! no!” from the peanut gallery of the PAP because under the d’Hondt system, no-one else is capable of getting the mass vote.
Of course, Rabuka then inexplicably changed his mind a day after Andrew Butler KC had already started working on the case and the appeal was off. Now it is back on and the flip-flopping has become the issue as much as whether the appeal is justified. Yet as usual, “Rolex Rambo”, or is it “Teflon Rambo” in this instance, powers on.
Unless Manoa Kamikamica’s forces are now in a position to challenge him for the leadership – and that would genuinely be madness given the gravity of the criminal case against the sidelined deputy prime minister – the same thing will happen again. The Party will back Rabuka, he won’t resign and he will lead the PAP into the next election. Unless they have a suicide wish.
Not a happy chappy is Charlie…
The PM had six weeks to file an appeal after Justice Tuiqereqere gave his ruling on Monday February 2 and has just come in before next Monday’s deadline.
The relevant court is the Court of Appeal headed by Justice Isikeli Mataitoga.
The problem for Mataitoga is that while he acts independently of Salesi Temo (The CJ controls the High Court and the Supreme Court but not the Court of Appeal ), he is a member of the Judicial Services Commission which insisted that it, not the Prime Minister, had the appointing power at FICAC and insisted on Lavi Rokoika being removed.
As such, we can certainly expect an application for Justice Mataitoga to recuse himself from this appeal on the grounds that he is conflicted.
The list of other possible judges is below:
0800 UPDATE:
There is still no announcement of the appeal on the government’s Facebook page amid reports of internal dissension about the Prime Minister’s decision.
Is his Information Minister, Lynda Tabuya, part of a cabal who tried to talk Rabuka out of questioning Justice Tuiqereqere’s ruling?
Is there a revolt against the Prime Minister as some members of cabinet side with the “crocodiles”?
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UPDATED 8.30 PM FIJI TIME THURSDAY:
Finally, the promised statement from the Prime Minister released more than 24 hours after Grubsheet first broke the story of the appeal ahead of any mainstream media outlet in Fiji.
Note that the Prime Minister is now casting this as a personal appeal, not an appeal by the government.
The distinction is meaningless. Rabuka is head of the government and will be using government funds to mount his appeal, which will cost a great deal given the calibre of the legal team he is assembling.
A sign of the divisions in the government we referred to above, with a number of the PM’s cabinet colleagues deeply unhappy that he is challenging Justice Tuiqereqere’s ruling, not least because some, perhaps many of them – including Lynda Tabuya and Manoa Kamikamica – support the reinstatement of Barbara Malimali as FICAC Commissioner because they are personal friends of hers and she has protected them.
There is no honour amongst thieves. It will now be interesting to see what the decision will be by the CJ on the Kai and Saneem case.
His thinking goes along the lines of “I choose who is selectively held accountable, not you other jerks. I gave you your position to follow my dodgy agenda, not yours.”
Hopefully this will decide the succession struggle sooner than later.
Rabuka must now be looking at that Rolex and wondering whether he should sell it and put the money towards drug rehab centres and much-needed health services.
For him and other aspiring politicians, the needs of the people are simple. Most Fijians want to continue their social way of life, to improve themselves and the lives of their children.
Creating opportunities for that is one thing, another is to make sure those who are enriching themselves are not doing so at the expense of the country as a whole. Beware the ‘gifts’ they offer.
If soft drinks, long loaf, cream buns and puri dripping in oil are creating the highest rate of diabetes in the world and killing people, do something about it. (Where’s that ripped wannabe politician working in the teitei when you need him or her?)
If people are sitting around drinking too much grog all night, sharing drugs and needles causing the highest rates of HIV in the world, do something about it.
Other simple things political parties can propose to do are:
– kick restart on the economy through better use of land, marine resources and minerals,
– promote reliable successors people can trust,
– put corrosive social media under an independent regulator (not politician),
– better direct $1bn in foreign aid each year, and
– come clean on proposed changes to the constitution.
Once the electorate have a clear idea of what each party proposes, they can then make their decision in the general election.
The new government will then have a mandate from the people for those changes.
That’s how democracy works.
Perhaps the only thing you can take from this last minute decision is that he gave the goons he had targeted nearly six weeks to play their hand and see what they did with their dreams that they had won the lottery and were in for payouts, jobs and other baubles of power.
Having had a few show their true colours, he could lift the guillotine and line them up for their just deserts.
As the saying goes “You can call me old, but you can’t call me stupid”
Let all the ladies get their knitting ready, soon they might finally get to sit and watch the execution.
Too much time taken up by the collision government in courts, while the people continue to suffer as today’s health-related news headlines below indicate. And will ADB’s $50 million concessional loan really help this time around? It’s doubtful. And after all, the loan has to be paid back (isa, our dear children and their children and so on) while sustained real economic growth remains elusive. Remember, the Word Bank recently reported that Fiji must maintain an average annual growth rate of 5.7 per cent to achieve high-income status by 2050. No way, Jose! Simply because of the sheer absence of political will.
1. Lift breaks down in CWM East Wing, patients cannot be taken to ICU or Acute Wards after surgeries Patients recover in theatres
2. Fiji could soon have 9,000 people living with HIV – Ravunawa
3. Fiji could record more than 2,000 new HIV infections this year
4. Fiji nurse numbers below WHO benchmark says Ravunawa
5. $50m ADB loan to modernize Fiji’s health system
What is worrying is that the Prime Minister stated that the AG’s and SG’s Office advised against the appeal. So now that he changed his mind he has another set of lawyers. The chief legal advisor for the whole of Government is the Attorney-General. It is crystal clear that the PM has never had faith in the current Acting AG and the SG.
Prior to 2022, the Attorney- General’s Office had the distinguished SG Sharvada Sharma along with his competent lawyers Preetika Prasad, Seema Chand, Ofa Solimailagi, Jan Sherani and a host of other lawyers who always defended the State to the core. You would never see the AG’s Office crumbling and scurrying trying to dodge litigation matters of importance.
I don’t blame the PM for being confused as the standard of his chief legal advisors has plummeted into the oblivion.
Wonder how tiny Ms Vani Catinasiga of the JSC must be feeling now?