State v Public Service Commission, Ex parte Lochan [1998] FJHC 150; Hbj0018j.1997s (6 November 1998)

Fiji Islands - The State v Public Service Commission, Ex parte Lochan - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

JUDICIAL REVIEW

ACTION NO. HBJ 0018 OF 1997

THE STATE

v.

PUBLIC SERVICE COMMISSION AND
ATTORNEY-GENERAL OF FIJI

EX-PARTE: SASHI MAHENDRA LOCHAN

V. Maharaj and S. Chandra for the Applicant
D. Singh for the Respondents

Date of Submissions: 23rd June 1998
Date of Judgment: 6th November 1998

JUDGMENT

On the 25th of March 1998 I gave the Applicant leave to apply for Judicial Review on one point of law only namely whether the First Respondent had any right to transfer or post the Applicant to the Ministry of Youth, Employment Opportunities and Sports from his position as Assistant Registrar of Titles on the 26th of March 1997 or whether that right was conferred only on the Judicial and Legal Services Commission as it was then called.

The Applicant contended that by Section 124(1) of the 1990 Constitution the power to make appointments to certain offices and to remove and to exercise disciplinary control over persons holding such appointments including that of Assistant Registrar was vested only in the Judicial and Legal Services Commission.

On page 4 of my Interlocutory Judgment I stated:

"In my judgment the power to appoint and remove must by implication include the power to transfer or post temporarily. I should also add here that unless the Respondents can make further submissions on the substantive motion persuading me that I am wrong in the views I have just expressed I should be disposed to make an order for Judicial Review on the substantive motion."

The Applicant declined to make any further submissions but the Respondents did make additional submissions which I have now considered.

With all due respect to the learned counsel for the Respondents I must say that I find nothing in those submissions which causes me to change the view I expressed in the passage from my earlier judgment I have just quoted. It would seem however that the position under the 1997 Constitution which came into force on the 27th of July 1998 may be different. Section 133 of the new Constitution specifies the only appointments to offices of State which can be made by the newly-titled Judicial Service Commission namely-

(a) an office of Magistrate;

(b) the office of central agricultural tribunal under the Agricultural Landlord and Tenant Act;

(c) all judicial offices for which provision is made by the Parliament.

Sub-section 3 states that if a written law so provides the Judicial Service Commission may also make appointments of persons to offices that are not judicial offices.

For the reasons which I gave in my Interlocutory Judgment I consider that the Public Service Commission had no right in law to post the Applicant to his new position on the 26th of March 1997. Accordingly the application for Judicial Review is granted and I order the Respondents to pay the Applicant's costs.

JOHN E. BYRNE
JUDGE

Hbj0018j.97s