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Sharma v The President of the Republic of Fiji [2024] FJHC 49; HBJ10.2021 (27 January 2024)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION


HBJ No. 10 of 2021


IN THE MATTER of ss. 112 and 116 inter alia of the Constitution of the Republic of Fiji (Constitution)


A N D


IN THE MATTER of the suspension and subsequent termination of the appointment of the Applicant as Solicitor-General


BETWEEN :
SHARVADA NAND SHARMA,
legal practitioner, of 9 Tagimoucia Place, Laucala Beach Estate, Nasinu
APPLICANT


AND :
THE PRESIDENT OF THE REPUBLIC OF FIJI,
of Government House, Suva
FIRST RESPONDENT


AND :
THE JUDICIAL SERVICES COMMISSION,
of Government Buildings, Suva
SECOND RESPONDENT


AND :
THE ATTORNEY-GENERAL OF FIJI,
Attorney-General’s Chambers, Suvavou House, Suva
THIRD RESPONDENT


Counsel:
Applicant: Mr. J. Apted
1st Respondent: Mr. R. Green and Mrs. M. Motofaga M
2nd and 3rd Respondents: Mr. D. Sharma and Ms. Fatima G


Date of Hearing: 15.06.2023
Date of Judgment: 27.01.2024


Judgment


INTRODUCTION


  1. Applicant was former Solicitor General, and he had represented Supervisor of Elections (SOE) in a litigation instituted by a former parliamentarian against SOE. Court held against SOE and this resulted SOE making complaints regarding professional conduct of the said case by Applicant to authorities including second Respondent.
  2. Solicitor General is responsible for providing ‘independent legal advice to the Government’. In order to secure independence, the procedure for removal of Solicitor General is the same as judicial officer.
  3. Applicant was removed from the post of Solicitor General, in violation of constitutional provisions.
  4. After the receipt of the complaint of SOE, second Respondent ‘requested’ first Respondent to suspend Applicant, and to appoint a tribunal for investigation of the alleged complaint of SOE. This ‘request’ was silent about the payment of the salary during suspension pending appointment of a tribunal for inquiry of the said complaint of SOE.
  5. Applicant was suspended without salary by first Respondent on 20.9.2021 without seeking explanation from Applicant, based on purported advice from second Respondent. I used the word purported as there was no decision by second Respondent submitted to court, suspending Applicant without salary.
  6. The letter of advice of First Respondent dated 20.9.2021 did not state that such decision was made by second Respondent or attach such a decision to latter of advice to first Respondent.
  7. Letter of advice dated 20.9.2021 to first Respondent, attached the complaint of SOE, which is irrelevant to first Respondent to make a decision to suspend Applicant. Constitutionally first Respondent must act on the advice of second Respondent for suspension of Applicant from post.
  8. Thereafter Applicant was unlawfully removed from his post, without appointment of a tribunal for inquiry regarding allegations of SOE, contrary to assurance given in the letter of 20.9.2021 of first Respondent and also constitutional provisions.
  9. The suspension of Applicant from his office is discretionary but as he was suspended it is mandatory to appoint a tribunal in terms of Section 112(4) of the Constitution of the Republic of Fiji (the Constitution) for removal.
  10. There is no provision to suspend salary during suspension. So the decision not to pay the salary during suspension is ultra vires.
  11. The removal of Applicant was communicated to Applicant by first Respondent on purported advice of second Respondent on 10.11.2021 through a ‘memo’. Again I used ‘purported’ as it had advised first Respondent to ‘made a determination’ to terminate, Applicant which is contrary to law.
  12. A fortiory ‘memo’ of second Respondent which attached draft letter of termination of Applicant that resulted removal of Applicant for misbehaviour, was made without any legal authority hence ultra vires.
  13. Only the tribunal appointed for investigation of alleged misbehaviour, can advise first Respondent to remove a judicial officer from post, in terms of Section 112(3) (c) of the Constitution.
  14. Said ‘memo’ of 10.11.2021, relied on an anonymous ‘independent legal opinion’ sought and obtained by second Respondent. Second Respondent had concurred with that legal opinion for removal of Applicant.
  15. Ultra vires action cannot be justified on the basis of ‘independent legal opinion’ and illegality of such action is not affected.
  16. Whether, the ‘independent legal opinion’ was communicated to members of second Respondent and, decided to concur with it, after due consideration of it not clear, as such evidence not provided to court. Removal of Applicant based on such ‘Independent legal opinion’ is beyond comprehension.
  17. The ‘independent legal advice’ cannot deprive the constitutional guarantee of Applicant and cannot in any way diminish the constitutional obligations on first and second Respondents.
  18. The Applicant seeks judicial review of six decisions of the first Respondent and the second Respondent that culminated to removal from his position. On 26.1.2023 leave for judicial review was granted against all decisions. The six decisions of first and second Respondents that culminated removal of Applicant unlawfully are as follows –

Facts


  1. Most of the facts are undisputed in this judicial review. There are six decisions or determinations by first and second Defendants subjected to review.
  2. Applicant held the office of Solicitor General and on or around August 2021, the Applicant represented the SOE and the Attorney-General in an application brought by an elected member of parliament in the Court of Disputed Returns.
  3. On 17 .8. 2021, the Court of Disputed Returns delivered decision and held against SOE, this decision was not appealable.
  4. After said judgment of Court of Disputed Return handed down, SOE made allegations of the conduct of defence by Applicant. SOE made a complaint against the Applicant in terms of Legal Practitioners Act 2009, and he had also made a complaint to Prime Minister and to second Respondent.
  5. On 20.9.2021 chairman of second Respondent ‘requested’ first Respondent ‘on behalf of ‘ second Respondent , to suspend Applicant from his office in terms of Sections 116(10) and 112(3)(a)(i) of the Constitution.
  6. Abovementioned ‘request’ to first Respondent, also stated said suspension from his post was pending ‘referral to and appointment of Tribunal’ in terms of Section 112(4) of the Constitution.
  7. Accordingly a letter of suspension of Applicant from his post pending an appointment of a tribunal was issued by first Respondent.
  8. First Respondent suspended Applicant without salary, despite such a decision regarding suspension of salary was not communicated, nor there was advice or ‘request’ to do so.
  9. There were two ‘draft’ letters that were produced by first Respondent’s affidavit in opposition which were allegedly attachments communicated by second Respondent with the letter of 20.9.2021.
  10. One such draft letter had a heading ‘Suspension Without Pay’ but the other draft letter was silent on the issue of salary.
  11. Solicitors of Applicant wrote a letter to second Respondent seeking reinstatement of salary, but this was turned down by the solicitor for second Respondent by the letter of 1.10.2021.
  12. Thereafter for nearly seven weeks there was no communication between parties, pending appointment of the tribunal in terms of section 112(3)(a)(i) of the Constitution.
  13. On 4.11.2021, after waiting nearly two months second Respondent sought answers from Applicant for targeted questions. It contained thirty one questions directed to Applicant, and also SOE’s complaint to second Respondent and sought a reply by 6.11.2021.
  14. Applicant’s solicitors sought eight working day time to reply as against two days given for reply to thirty one questions, and this request was denied.
  15. So, instead of replying to thirty one questions in detail, Applicant denied all the allegations of misbehaviour alleged in the complaint of SOE by email of 6.11.2021. Again in he said email requested reasonable time to reply comprehensively, and did not receive a reply to this request extending time.
  16. Second Respondent wrote a memo on 10.11.2021 to first Respondent quoting an “independent legal opinion” in verbatim and advised that appointment of tribunal to investigate allegations of SOE was not warranted, and stated that it concurred with said legal opinion.
  17. Further advised first Respondent to “proceed with making your determination on the Complaint’ of SOE in “accordance with of Section 116(9) of the Constitution.” Said memo also had an attachment of draft letter of termination to Applicant.
  18. Then Applicant was removed from his office by first Respondent without appointing a tribunal for investigation in terms of draft letter of appointment enclosed to ‘memo’ of second Respondent of 10.11.2021.

Law and Analysis


  1. Application for Judicial Review is sought against six decisions that resulted the removal of the Applicant from the position of Solicitor-General of Fiji. The office of the Solicitor-General is guaranteed security of tenure and as well as security of remuneration under the Constitution as same as judicial officers.
  2. The office of Solicitor-General is established in section 116 of the Constitution. This contains inter alia responsibilities, term of office, authority, remuneration and removal.
  3. The removal of Solicitor General is similar to removal of judicial officer contained in section112 of the Constitution.
  4. Said provisions are contained in Chapter 5 of the Constitution which deals with ‘Judiciary’ in Part B of Chapter 5 under ‘Independent Judicial and Legal Institution’. The Constitution had provided independence not only to the judiciary, but also to other specified institutions and the post of Solicitor General is one such independent position.
  5. Section 2 of the Constitution deals with the supremacy of the Constitution and all persons holding ‘public office’ must comply with the obligations under the Constitution.
  6. First and second Respondents who derive authority from the Constitution, are obliged to act consistently with the provisions contained in the Constitution regarding the suspension as well as removal of Applicant as Solicitor General. Section 2 of the Constitution states,

“Supremacy of the Constitution

2.–(1) This Constitution is the supreme law of the State.

(2) Subject to the provisions of this Constitution, any law inconsistent with this Constitution is invalid to the extent of the inconsistency.

(3) This Constitution shall be upheld and respected by all Fijians and the State, including all persons holding public office, and the obligations imposed by this Constitution must be fulfilled.

(4) This Constitution shall be enforced through the courts, to ensure that –

(a) laws and conduct are consistent with this Constitution;

(b) rights and freedoms are protected; and duties under this Constitution are performed.

(5) ...” (emphasis added)


  1. Section 116, the Constitution deals with the post of Solicitor General and so far as relevant, provides –

“(4) The Solicitor-General must be a person who is qualified to be appointed as a Judge.


(5) The Solicitor-General shall be appointed by the President on the recommendation of the Judicial Services Commission following consultation by the Judicial Services Commission with the Attorney-General.


(6) The President may, on the recommendation of the Judicial Services Commission following consultation by it with the Attorney-General, appoint a person to act as the Solicitor-General during any period or during all periods, when the office of the Solicitor-General is vacant or when the Solicitor-General is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.


(7) The Solicitor-General has the same status as that of a permanent secretary and shall be responsible as the Permanent Secretary for the Office of the Attorney-General and may be assigned such additional responsibilities as permanent secretary.


(8) The Solicitor-General shall have the same term of office as a Judge of the High Court, and shall be paid such remuneration as determined by the Judicial Services Commission in consultation with the Attorney-General, provided however that such remuneration shall not be less than that payable to a Judge of the High Court or a permanent secretary and any such remuneration must not be varied to his or her disadvantage, except as part of an overall austerity reduction similarly applicable to all officers of the State.


(9) The Solicitor-General may be removed from office for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and may not otherwise be removed.


(10) The procedure for removal of the Solicitor-General from office shall be the same as the procedure for removal of a judicial officer under section 112” (emphasis added)


  1. In terms of section 116(8) of the Constitution, the Solicitor General has the same term of office as a Judge of the High Court. Under section 110 of the Constitution, a non-citizen is appointed as a Judge for a term not exceeding three years, while a Fiji citizen is appointed until he or she reaches the age of retirement of 70.
  2. Applicant who is a Fiji Citizen is therefore entitled to serve until 70 years, if not removed in terms of the Constitution, or resigned from the post.
  3. In terms of Section 116 (9) and (10) of the Constitution, Solicitor-General can only be removed from office for misbehaviour or inability to perform functions , due to medical grounds, in accordance with the procedure contained in section 112 of the Constitution.
  4. Even though, Solicitor –General is not a ‘judicial officer’[1] the procedure for removal is the same in terms of Section 116 (10) of the Constitution.
  5. The procedure for removal of Solicitor General is contained in Section 112 of the Constitution.
  6. Section 104 (2) of the Constitution empowers the second Respondent to investigate complaints regarding ‘judicial officers’ and this is before taking a decision to proceed under Section 112 for removal of such judicial officer.
  7. All the complaints regarding judicial officers will not proceed to removal from the position and these investigations are preliminary before taking action in terms of Section 112 of the Constitution.
  8. Section 112 of the Constitution applies when the allegation is serious enough for removal and not for general supervisory or investigatory power of second Respondent regarding performance appraisals or any matter not relating to removal of judicial officer, which the power conferred in Section 104(2) of the Constitution.
  9. So section 112 of the Constitution, is exclusive provision relating to ‘removal of judicial officer for cause’ and the same provision is applicable to Applicant in terms of Section 116(10) of the Constitution. This guarantees the tenure of the ‘judicial officers’ including Applicant, in order to safeguard judicial independence and the same safeguard is conferred to Solicitor General considering the constitutional importance and independence needed for such a post.
  10. This is to guarantee independence for the holder the post of Solicitor General, and the independence of the legal institution, Office of Solicitor General, while being a part of executive of the government. So security of tenure conferred to judicial branch of the government is granted to the Solicitor General who is from executive branch of the government.
  11. Section 112 the Constitution which is the provision for removal of judicial officer , and it states,

“(1) A Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission may be removed from office for inability to perform the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and may not otherwise be removed.


(2) Removal of a Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission from office must be by the President pursuant to this section.


(3) If the President, acting on the advice of the Judicial Services Commission, considers that the question of removing a Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission from office ought to be investigated, then -

(a) the President, acting on the advice of the Judicial Services Commission, shall appoint -

(i) in the case of alleged misbehaviour—a tribunal, consisting of a chairperson and not less than 2 other members, selected from amongst persons who hold or have held high judicial office in Fiji or in another country; and

(ii) in the case of alleged inability to perform the functions of office - a medical board, consisting of a chairperson and 2 other members, each of whom is a qualified medical practitioner;

(b) the tribunal or medical board enquires into the matter and furnishes a written report of the facts to the President and advises the President of its recommendation whether or not the Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission should be removed from office; and

(c) in deciding whether or not to remove a Judge, the President must act on the advice of the tribunal or medical board, as the case may be.


(4) The President may, acting on the advice of the Judicial Services Commission, suspend the Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission from office pending investigation and pending referral to and appointment of a tribunal or a medical board under subsection (3), and may at any time, revoke the suspension.


(5) The suspension of the Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission from office under subsection (4) ceases to have effect if the President determines that the Judge, Magistrate, Master of the High Court, the Chief Registrar or any other judicial officer appointed by the Judicial Services Commission should not be removed from office.


(6) The report of the tribunal or the recommendations of the medical board, as the case may be, made under subsection (3) shall be made public.


(7) This section does not apply to the Chief Justice or the President of the Court of Appeal.” (emphasis added)


  1. Following is deducible from Section 112 of the Constitution as regards to Applicant which is equally applicable to judicial officer and they are:
  2. It is mandatory for first and Second Respondents to follow the provision contained in Section 112 for removal of Applicant. The provisions for removal of a judicial officer is exclusive and also exhaustive. Independence of judicial and other institutions is paramount in the interpretation in Section 112 of the Constitution.
  3. The transparency is the key to such removal as advice to removal which must only come from the tribunal, or medical board, is made public. The overriding consideration is the openness and impartiality so the report of tribunal or medical board, is open to public for scrutiny.
  4. Section 82 of the Constitution states,

“President acts on advice

In the exercise of his or her powers and executive authority, the President acts only on the advice of Cabinet or a Minister or of some other body or authority prescribed by this Constitution for a particular purpose as the body or authority on whose advice the President acts in that case.” (Emphasis added)


  1. The advice for removal of Applicant is from the tribunal, which is an ad hoc body prescribed in the Constitution. There is no other body or person who can advise first Respondent regarding removal of Applicant or a judicial officer.
  2. The appointment of tribunal for investigation of alleged misbehaviour is a precondition for removal on misbehaviour in terms of Section 112 and this cannot be circumvented by not advising first Respondent to appoint such a tribunal in terms of Section 112(3)(a)(i) of the Constitution.
  3. Accordingly there is no provision in Section 112 of the Constitution for second Respondent to advice first Respondent to remove a judicial officer or Applicant or to advice first Respondent to make a ‘determination’ regarding removal by way of ‘memo’ or otherwise.
  4. As stated earlier first Respondent can only act on advice of relevant ‘body or authority prescribed by ‘the Constitution ‘for a ‘particular purpose’, in terms of Section 82 of the Constitution.
  5. Any act of first Respondent based on any illegal and unconstitutional advice is also illegal and unconstitutional and contrary to law and can be quashed by court.
  6. The sole authority for advice regarding removal of Applicant or judicial officer, lies with the tribunal appointed in terms of Section 112 3(a) (i) of the Constitution, in terms of Section 82 of the Constitution.
  7. First Respondent relied on a ‘memo’ from of second Respondent annexed KT-3 (but marked as K-3) to affidavit in opposition filed by first Respondent which will be dealt later in this judgment.
  8. Section 104(8) of the Constitution states

“(8) In the performance of its functions or the exercise of its authority and powers, the Commission is independent and not subject to the direction or control of any person or authority, except by a court of law or as otherwise prescribed by written law.”


  1. Actions of the second Respondent can be subject to judicial review in terms of the above provision and also under common law.
  2. Second Respondent is empowered to advice first Respondent to suspend Applicant, ‘pending investigation and pending referral to tribunal’ or removal of the suspension, but not for removal from the post.
  3. This allows due process to follow in such a removal in transparent manner and also to eliminate bias or conflict, as preliminary investigatory power is with second Respondent in terms of Section 104(2) of the Constitution. Interpretation of said provision, along with Section 112 of the Constitution indicate that it was meant to grant general or preliminary investigation power. When there are merits for removal, Section 112 of the Constitution applies and once second Respondent decided to act on a judicial officer including Applicant, only Section 112 can be applied.
  4. When the Applicant was suspended, second Respondent advised first Respondent to appoint a tribunal in pursuant to section 116(10) and 112(3) (a) (i) of the Constitution. Accordingly First Respondent must appoint a tribunal and only rely on tribunal’s decision to removal of Applicant.
  5. Investigation as to removal of judicial officer is exclusive to tribunal appointed in terms of section 112(3) (a) (i) of the Constitution. There is no concurrent jurisdiction to any other authority including second Respondent regarding removal irrespective of whether such tribunal was appointed by first Respondent upon advice of second Respondent.
  6. The Constitution contains a Bill of Rights in Chapter 2 and in that chapter, Section 16(1) states

“Executive and administrative justice

16.–(1) Subject to the provisions of this Constitution and such other limitations as may be prescribed by law –

(a) every person has the right to executive or administrative action that is lawful, rational, proportionate, procedurally fair, and reasonably prompt;

(b) every person who has been adversely affected by any executive or administrative action has the right to be given written reasons for the action; and

(c) any executive or administrative action may be reviewed by a court, or if appropriate, another independent and impartial tribunal, in accordance with law.”(emphasis added)


  1. The common law which guaranteed procedural fairness under Administrative Law is recognised as a right enshrined in Bill of Rights of the Constitution. So procedural fairness and administrative actions for review of decisions of executive or administrative decisions are recognised as a constitutional right.
  2. Section 16 of the Constitution guarantees judicial review of any administrative or executive action if that contravenes to law including and not limiting to contravention of a right under Bill of Rights in the Constitution. So, judicial review may also constitute constitutional redress in terms of Section 44 of the Constitution. As stated earlier court can develop Administrative Law, which is part of common law in terms of rights enshrined in Bill of Rights in the Constitution.
  3. Submission of second and third Respondents filed 21.6.2023 contended
    1. If the Applicant is successful only remedy is to quash the termination and matter to be remitted to second Respondent with directions as to procedure to be adopted.
    2. No ruling can be made regarding complaint of SOE.
    3. Court cannot order lifting of suspension of Applicant from his post as it is prerogative of first Respondent.
    4. Court cannot reinstate Applicant as a new person was appointed.
  4. It is accepted that this court cannot in judicial review investigate the complaint of misbehaviour alleged by SOE. The judicial review is regarding the procedure adopted for the allegation made by SOE. If there are merits on alleged misbehaviour, it can be investigated in accordance with law by relevant authorities.
  5. There is no prerogative for first Respondent to suspend Applicant and such action is only on the advice of second Respondent, hence the decision of second Respondent as well as first respondent’s decision to suspend are reviewable by court. (see Section 82 of the Constitution).
  6. Court can use its discretion to reinstate Applicant irrespective on any new appoint made to the position of Solicitor General, as fruits of illegal action cannot deprive legitimate remedy of reinstatement.
  7. Fruits of poison tree cannot hold legitimacy, but reinstatement is discretionary considering all the circumstances.
  8. If not, any person could be illegally removed in contravention of all legal provisions including constitutional provisions and a new person could be appointed immediately thus practically depriving reinstatement.
  9. If the said contention of second and third Respondent accepted, the independence of judicial officers and other constitutionally secured posts will become a dead letter. This is dealt later for remedies in the exercise of discretion.
  10. Six decisions for which leave granted considered below and they are combined to prevent repetition.

Suspension Advice Decision and Suspension without Pay Decision


  1. On 20 .9. 2021, ‘suspension advice decision’ was communicated to second Respondent by way of letter which had attached a draft letter to Applicant, (but practically there were two letters produced by first Respondent).
  2. There was no explanation as to why there were more than one draft letter which were materially different to each other when there should have been only one draft letter attached.
  3. Letter of Second Respondent to first Respondent and stated

‘Your Excellency

Re: Sharvada Sharma- Solicitor General


I on behalf of Judicial Services Commission humbly request your Excellency

(I) To appoint a Tribunal pursuant to section 116(10) and 112(3(a) (i) of the Constitution of the Republic of Fiji (the Constitution) to investigate the complaint of alleged misbehaviour lodged by the Supervisor of Elections (the Supervisor) against Mr. Sharvada Sharma, the current Solicitor General.
(II) To suspend Mr. Sharvada Sharma’s appointment as Solicitor General pending investigation and pending referral to and appointment of Tribunal. Section 112(4) of the Constitution.

A copy of letter dated 14 September 2021 from the Supervisor is enclosed for your Excellency’s reference.

Attached is a draft letter to Mr Sharma.’ (emphasis added)


  1. Said letter of second Respondent, is annexed to affidavit in reply filed on 12.5.2023 on behalf of first Respondent.
  2. The letter of second Respondent, had ‘requested’ first Respondent to take specific actions and they area
(ii) Suspend the Applicant from his office.
  1. These were included as orders of first Respondent, in the draft letter attached to letter of chairman of second Respondent. Instead, the complaint of SOE to second Respondent was attached along with a draft letter to Applicant.
  2. As first Respondent is legally obliged to take advice from second Respondent for suspension of Applicant, in terms of Section 82 of the Constitution, SOE’s complaint is not necessary for first Respondent to suspend Applicant.
  3. This letter did not state that second Respondent had taken a decision to suspend the Applicant, nor such minutes of a meeting held attached to affidavit submitted.
  4. This is relevant to legality of the said letter as advice in terms of Section 112 (3)(i) of the Constitution can only be from second Respondent and its quorum is three members including chairman, in terms of Section 104(10) of the Constitution.
  5. As the letter of 20.9.2021 to second Respondent was not from its secretary who had sworn the affidavit on behalf of second Respondent, or no evidence of such decision by second Respondent produced it is not clear as to what was the decision taken by second Respondent in this regard. This is more important in the context of two draft letters to Applicant attached and material differences in the said letters. One draft letter was silent about the payment of salary during suspension and the other was without salary during suspension.
  6. In Graham v Police Service Commission [2011] UKPC 46 Sir John Laws for the Privy Council said at [18], page 6 –

“It is well established that a public authority, impleaded as respondent in judicial review proceedings, owes a duty of candour to disclose materials which are reasonably required for the court to arrive at an accurate decision.”


  1. In Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6 , the Privy Council (Lord Walker) stated at [86], page 27 –

“A [defendant] authority owes a duty to the court to cooperate and to make candid disclosure by way of [witness statement], of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings.”


  1. Second Respondent had not submitted following pertinent documents relating to suspension of Applicant without salary, and they are:
  2. In the absence of any such material and also any explanation as to why such material could not be submitted, an adverse inference can be made in favour of Applicant.
  3. Such evidence is material to make a determination as to compliance with the procedural requirements in terms of the provisions of the Constitution.
  4. Second Respondent can make its own rules and regulations regarding conduct of its affairs, in terms of the Constitution but cannot refrain from disclosure of the relevant evidence.
  5. There cannot be a reason refrain from providing, the date of the meeting of second Respondent held and how many members attended for taking relevant determinations and what were the material considered for taking a decision to advice, first Respondent to suspend Applicant or minutes of the said decision of second Respondent. These are evidence of procedural fairness which is a constitutionally secured as a right in terms of Section 16 of the Constitution.
  6. The Constitution had specifically made provision in Section 112(6) of the Constitution, to make a report of the tribunal or medical board appointed in terms of Section 112 of the Constitution be made public. This is to make the process of removal of a person in terms of Section 112 of the Constitution transparent. Even the tribunal appointed under Section 112 of the Constitution is bound by Section 16 of the Constitution.
  7. So, the constitution had recognised the importance of disclosure even matters such as medical board’s report when the removal was on medical ground of a judicial officer. The paramount consideration under the Constitution was the openness or transparency of the removal process in terms of Section 112 of the Constitution.
  8. Chapter on Bill of Rights contained in the Constitution in Section25 of the Constitution, recognize the right to information. Section 150 of the Constitution also supplement the right of information with requirement for specific legislation. In the circumstances there was no reason for not to provide evidence to show the decision to suspend Applicant from his office without salary was ‘rational, proportionate, procedurally fair’ in terms of section 16 of the Constitution.
  9. Letter of second Respondent did not state such a decision was taken , but ‘request’ first Respondent on behalf of second Respondent to suspend the Applicant pending appointment of the tribunal in terms of Section 112(3)(a)(i) of the Constitution.
  10. Another important omission is the letter of second Respondent had not ‘requested’ or advised first Respondent to suspend the salary of Applicant, during suspension. This corroborate one of the two draft letters produced as ‘attached letter’. So there is conflict with the ‘advice’ contained in the letter of 20.9.2021 with the letter that contained heading ‘suspension without pay’.
  11. Suspension of Applicant from his office and suspending his salary during the time of suspension are two distinct decisions. First Respondent ‘act only’ on the advice of second. So it is imperative that not only to advice suspension but also an advice for suspension of salary in order for first Respondent to act in terms of Section 82 of the Constitution.
  12. Apart from that whether salary can be suspended pending an appointment of a tribunal is a legal issue. The constitutional provisions are silent on the issue of suspension of salary. The constitution allows a suspension of post pending investigation and was silent about the suspension of salary pending inquiry.
  13. Considering the independence enshrined in the Constitution for judicial and legal institutions, economic independence is a vital component of such independence. Without economic independence a substantial erosion of independence may occur due to economic hardships during suspension in terms of Section 112 of the Constitution.
  14. Deprivation of salary during suspension pending an appointment of a tribunal for investigation is not sanctioned, in terms of the Constitution. So the Constitution did not allow suspension of salary pending an appointment of tribunal in terms of Section 112 of the Constitution. The deprivation of salary affects the financial independence hence not allowed in terms of the Constitution which secures financial independence of judicial officers, including Solicitor General.
  15. Accordingly suspension of salary and other remuneration pending investigation by a tribunal for removal is contrary to law and null and void.
  16. Even if I am wrong on the above, Applicant was not granted any opportunity to reply to second Respondent before it took a decision to suspend Applicant from his office, without salary. This contravenes Section 16 (1) of the Constitution.
  17. Without prejudice to above, there was no advice or decision of second Respondent to suspend salary during suspension. First Respondent had relied on the one of the draft letters produced to court marked K-1 (Annexed as KT-1 to affidavit in reply filed on 12.5.2023)
  18. First Respondent had produced another draft letter, but more importantly there was no advice from second Respondent as to suspension without pay. Even if there was a subsequent draft letter , this will not cure the lacuna in absence of advice from second Defendant regarding the suspension of Applicant without salary as first Defendant is legally obliged to follow advice of second Respondent in terms of Sections 112 and 82 of the Constitution. A draft letter can supplement advice but cannot substitute advice.
  19. On the same day 20.9.2021, a letter of that date was delivered to the Applicant, signed by first Respondent. A copy of this letter is annexed marked SS-2 to affidavit in support. The same letter is annexed as KT-2 (marked K-2) to the affidavit of first Respondent filed in response on 12.5.2023.
  20. This letter of first Respondent to Applicant dated 20.9.2021 stated,

“Having received the advice from the JSC on allegations of misbehaviour, I hereby under section 112(4) of the Constitution of the Republic of Fiji suspend your appointment as Solicitor-General with immediate effect and with no pay, benefits or allowances pending the appointment of a Tribunal as provided under section 112 of the Constitution of the Republic of Fiji.”(emphasis added)


  1. Above mentioned did not state that first Respondent was ‘acting’ in accordance with the advice of the second Respondent, but in my mind this is just semantics. It is clear that first Respondent had reproduced one of the draft letters attached to the communication of 20.9.2021.
  2. The Applicant may be suspended by first Respondent in terms of section 112(4) of the Constitution. Applicant received his letter of suspension from first Respondent on 20.9.2021.
  3. First Respondent had received the complaint from the SOE on 14.9. 2021. This was nearly a week prior to suspension of Applicant without seeking response. There was ample time to seek response before suspension of Applicant from his post.
  4. The circumstances of this case did not show an urgency for second Respondent to act in the manner urgently. In terms of the Chapter on Bill of Rights it required to act fairly and provided the Applicant to be heard before suspension.
  5. The complaint against Applicant was relating to manner he represented SOE in an action. Such conduct cannot prima facie show misconduct and required response from Applicant before taking action against him.
  6. Section 16 of the Constitution guarantees that every person the right to executive or administrative action that is lawful, rational, proportionate, as well as procedurally fair.
  7. In Ratu Epenisa Seru Cakobau v Fijian Affairs Board (Civil Action no. 295 of 1988, 27 May 1988) held that suspension of the applicant in that case without being given an opportunity to be heard was unfair, and that no power exists in common law or statute to suspend without salary, failing to comply with natural justice. The Court held administrative measures cannot or should not be inferred as a matter of convenience to disregard the rules of natural justice.
  8. In State v The Police Service Commission Ex parte Romanu Tikotikoca & Ors [1993] FLR 12 dealt with the issue of suspension or interdiction of a senior police officer, without being given an opportunity to be heard. The High Court discussed various cases from the Commonwealth and held that the applicant was denied natural justice in not being given an opportunity to be heard before the decision was made to suspend him considering the circumstances of that case and held ,

“Each case has to be considered on its own facts and whilst one can understand the general principles stated by Lord Denning and Lord Geoffrey Lane it seems to me on the facts of the present case that the approach taken by the Federal Court of Australia in Dixon and the Court of Appeal in Birss is to be preferred.”


  1. In Australia, the Full Court of the Federal Court of Australia in Dixon v Commonwealth [1981] FCA 77; (1981) 55 FLR 34 held that an opportunity to be heard must be provided before a decision is made to suspend considering the ‘nature of the decision and circumstances of the case’. It (at pages 41, 44-45) held, –

“In the forefront of the rules of natural justice which are prima facie applicable to the exercise of such a statutory power, there lies the obligation to give to a party liable to be directly affected by the decision, the opportunity of being heard. Here again, the precise scope of the obligation will vary according to the nature of the decision and the circumstances of the case. Ordinarily, in a case where a statutory decision depriving a particular individual of property, rights or legitimate expectations is in contemplation, the obligation to extend to him the opportunity of being heard will involve ensuring that he is given the opportunity of ascertaining the relevant issues and being informed of the nature and content of the material which is being considered against him.

The implication of the obligation to observe the rules of natural justice in exercising a statutory power involves implying, as a matter of construction, a qualification upon the power. The implication of such a qualification will ordinarily be made as a matter of course. It is, however, subject to a legislative intent to exclude the rules of natural justice or to modify their content (see Twist v. Randwick Municipal Council, supra). Such a legislative intent to exclude the established common law standards of fairness must, however, be established, as a matter of construction, by the express words or clear intendment of the legislation conferring the relevant statutory power. So much at least we would draw from the judgment of Aickin J., with whom Stephen and Mason JJ. agreed, in Heatley v. Tasmanian Racing and Gaming Commission (supra, at pp. 499-500; see also, per Mason J., Twist v. Randwick Municipal Council, supra, at p. 114: "express words or by necessary implication").

In the present case, there is no express provision in the Act either incorporating or excluding the rules of natural justice in relation to a decision to suspend under s.62 (1) or a decision to dismiss under s.62 (2). The Act contains no provision specifying the procedure to be observed in reaching a decision under either sub-section. Nor does it contain provision for an appeal from any such decision. Careful consideration of the structure and overall content of the Act has quite failed to persuade us that there is any proper basis for implying any legislative intent that rules of natural justice which would otherwise be applicable should be either excluded or modified. It follows that the applicability and content of the rules of natural justice falls to be determined by reference to the nature and content of the relevant power, to the circumstances of its exercise and to the common law.

...


There may be cases in which the nature of a statutory power adversely to affect the rights, property or legitimate expectations of another precludes the applicability of the rules of natural justice. There may be cases in which those rules are applicable but the nature of the relevant power operates to exclude or limit the audi alteram partem rule. The fact that the relevant statutory power is in the form of a power to suspend pending inquiries does not however, in our view, import any general exclusion or modification of the rules of natural justice which are prima facie applicable to a statutory power adversely to affect the rights, property or legitimate expectations of another. The question whether the power to suspend under s.62 (2) is qualified by an obligation to observe the rules of natural justice is not foreclosed against the appellant by the fact that the power is a power to suspend. The answer to that question falls to be determined by reference to general principles.

The second decision to suspend in the present case was made under the statutory powers conferred by s.62 (1) of the Act. That decision, if valid, deprived the appellant of his entitlement to perform his duties as a permanent officer in the Australian Public Service. It also deprived him of the right to be paid his salary for an indefinite period which was likely to endure for so long as it took the Australian Public Service to make a decision on whether he should be dismissed. In the event, the period was from 19 May, 1978 to 7 September, 1978. Plainly, the decision to suspend the appellant was a statutory decision which adversely affected the rights and legitimate expectations of the appellant. It was likely to have profound emotional, social and financial effects upon him. The rules of natural justice were, in the absence of any clear legislative intent to the contrary, applicable in respect of that decision. The appellant was, in our view, entitled to an opportunity of being heard in relation to the decision of 19 May, 1978 that he be suspended.

...


The suspension of the appellant, without salary, on 19 May, 1978 pursuant to s.62(1) was pending a decision as to what, if any, action should ultimately be taken in the light of the offences to which he had pleaded guilty. The appellant was entitled to be heard on the question whether he should be suspended without salary during that interim period. It may well be that there is little that the appellant could have said or done that was likely to influence the decision on that question. It may well be that the decision would have been the same if he had been given the opportunity of being heard. The fact remains, however, that he was given no opportunity whatsoever of being heard on the question whether he should be suspended without salary. The decision of 19 May, 1978 to suspend the appellant was invalid and ineffectual.”(emphasis added)


  1. As stated earlier second Respondent waited more than a week after receipt of the complaint of SOE and allowed Applicant to function as Solicitor General. Applicant had functioned in the post even after alleged misbehaviour for more than a month and his conduct during this time had raised no issues. If the suspension of Applicant was urgent such a time period would not have taken by second Respondent even after receipt of the complaint of SOE.
  2. So there was no reason to deny the Applicant’s right of reply before suspension of his post, considering circumstances of this case.
  3. As stated earlier pending an appointment of tribunal and investigation for misbehaviour in terms of Section 112 (3) (a) of the Constitution, Applicant ‘may’ be suspended from his office. The provision itself gives discretion hence it is not mandatory to suspend Applicant. This also requires that discretion should be exercised reasonably depending on the circumstances of the case.
  4. Such suspension is required to be interpreted in terms of Bill of Rights contained in Chapter 2 of the Constitution. Section 16 of the Constitution deals with administrative justice.
  5. Suspension of Applicant from his position itself may had adverse effects on him as well as independence of the post which is guaranteed under the Constitution. So it is not an individual who was denied constitutional protection, affecting independence, but the institution he represented, and its independence of it was affected.
  6. In New Zealand Court of Appeal in Birss v Secretary for Justice [1984] NZCA 24; [1984] 1 NZLR 513 it was held (at page 517) –

“On the general issue in Dixon v Commonwealth [1981] FCA 77; (1918) 55 FLR 34, 44, the Federal Court of Australia (Bowen CJ, Deane and Kelly JJ) took the view that the fact that the relevant statutory power is in the form of a power to suspend pending inquiry does not import any general exclusion or modification of the rules of natural justice which are prima facie applicable to a statutory power adversely to affect the rights, property or legitimate expectations of another. Like the State Services Act 1962, the Act there contained no provisions specifying the procedure to be observed in reaching a decision to suspend. Having regard to the adverse effects on the officer - loss of entitlement to perform his duties and of salary - and to the likelihood that it would have profound emotional, social and financial effects on him, in the absence of any clear legislative intent to the contrary the rules were applicable in respect of that decision.” (emphasis added)


  1. Privy Council in Rees v Crane [1994] 1 All ER 833 where the Privy Council acknowledged the right to be heard before suspension depending on the particular circumstances. Under a provision similar to section 112 of the Constitution, held that the duty of fairness did require the complainant being informed of the allegations or complaints that are going to be dealt or investigated. In that case several allegations were made earlier and all were informed and response obtained. So in that case it was contended that nature of the complaints were already known, but Privy Council rejected this contention. It held that depending on urgency or necessity a suspension from work as against suspension from office can be made without seeking response to the allegations made so that more detailed investigation will result.
  2. Privy Council in Rees (supra) held (at page 845) –

“Plainly in the present case there would have been an opportunity for the respondent to answer the complaint at a later stage before the tribunal and before the Judicial Committee. That is a pointer in favour of the general practice but it is not conclusive. Section 137 which sets up the three—tier process is silent as to the procedure to be followed at each stage and as a matter of interpretation is not to be construed as necessarily excluding a right to be informed and heard at the first stage. On the contrary its silence on procedures in the absence of other factors indicates, or at least leaves open the possibility, that there may well be circumstances in which fairness requires that the party whose case is to be referred should be told and given a chance to comment. It is not a priori sufficient to say, as the appellants in effect do, that it is accepted that the rules of natural justice apply to the procedure as a whole but they do not have to be followed in any individual stage. The question remains whether fairness requires that the audi alteram partem rule be applied at the Commission stage.

It is also in their Lordships' view clear that the Commission is not intended simply to be a conduit pipe by which complaints are passed on by way of representation. The Commission may receive isolated complaints of a purely administrative nature which they consider can be dealt with adequately through administrative action by the Chief Justice. Then they would no doubt not make a representation that the question of removal be considered. Indeed it may well in the public interest be desirable that such matters be dealt with quickly by the Chief Justice rather than that the full panoply of representation, tribunal and the Judicial Committee be set in motion. The Commission before it represents must, thus, be satisfied that the complaint has prima facie sufficient basis in fact and must be sufficiently serious to warrant representation to the President, effectively the equivalent of impeachment proceedings. Both in deciding what material it needs in order to make such a decision and in deciding whether to represent to the President, the Commission must act fairly.


  1. In Barnwell v Attorney General [1994] 3 LRC 30 a decision in the same year, the Court of Appeal of Guyana considered an appeal by a judge of the High Court who had sought judicial review of the decision of the JSC of Guyana to suspend him on half pay. The judge was not given any opportunity to be heard by the JSC before it advised the President that the question of removal of the judge ought to be investigated and that he be suspended pursuant to the provisions of the Constitution that allowed suspension on half pay.
  2. Court of Appeal of Guyana unanimously held that fairness and natural justice required that the importance of giving an opportunity to be heard before suspension on half pay. Held, pp.72 and 79 –

“It is correct to contend that the JSC was not an adjudicating body, but had been called upon to decide whether an adverse representation should be made against a high-ranking officer of a constitutional office and put at risk. His interests were unquestionably many to protect. In my view the principles of natural justice were at least impliedly to be invoked in the appellant’s favour, or fairness accorded to him, and made manifest, thereby exemplifying the JSC’s observation of its duty to act fairly.

...


It therefore seems correct to hold, and I do hold, that the judicial officer-holder’s participation is not only a precondition to be observed prior to the decision to make or not to make the adverse representation, but he is entitled to be heard by the JSC after the adverse decision is taken. This time on the question of the advice the Chancellor should tender to the President with respect to the judge’s continuation in office or his suspension. It is the final stage or process prior to the commencement of the art. 197(5) removal exercise and is no less sensitive than the period commenced by the complaint and ending with the taking of the decision concerning whether or not the adverse representation should be made. The authorities discussed during this judgment lead me to this conclusion. All the more, therefore, the appellant suffered a denial of natural justice.”


At pp.95-97, the Court said –


“A judge cannot be removed from office at the whim and fancy of anyone, and, therefore, it behoves the JSC to act in a manner which can be considered ‘fair’ when it is considering whether or not to make its representation to His Excellency the President. We live in a small country, where people are inclined to believe whatever they may hear. The moment a judge is suspended from performing the functions of his office, as distinct from being removed from office, all sorts of rumours will begin to fly. ... The moment a judge is suspended from office, stigma will be attached to him, even if at a later stage the suspension is removed and he is restored to his office.

...


Persons in our society are inclined to be malicious at times and, therefore, when an allegation is being made against a judge, every effort should be made to ensure that he is dealt with ‘fairly’ before any action detrimental to him is taken.

Because of the status of a judge, a special tribunal has to be set up to inquire into his behaviour before he can be removed from office by His Excellency the President.

...


When a judge is suspended from office, as the appellant was in this present case, he loses his right to work in his chosen career, he suffers the stigma of suspension from duties and unless and, until the tribunal rules in his favour, he is deprived of part of his salary and all his allowances. I have already commented on the fact that we live in a small community where people would be inclined to think ill of the judge, when he is suspended or removed from office.

Suspension is a drastic measure which, if more than momentary, would have a devastating effect on the judge in question. The prejudice occasioned to the judge in question by suspension can never be assuaged, even if he is ultimately vindicated at the tribunal hearing and is then restored to office and paid the remainder of his salary and all his outstanding allowances.”(emphasis added)


  1. The devastating effect on Applicant’s life, from suspension of the post, was aggravated by deprivation of salary. In some countries in their respective constitutions specifically allowed deprivation of a portion of salary during suspension. No such provision is not found in the Constitution of Fiji.
  2. This is not to allow room to deprive economic or financial independence of such judicial officers or other specified legal personnel considering importance of such independence and presumption of innocence and also ‘fair play’ pending inquiry by a tribunal.
  3. In this case, the Applicant was not only suspended from his office as opposed to his work but also suspended all his allowances, salary and other benefits without an opportunity to response to complaint from SOE which relates to professional conduct of an action.
  4. Second Respondent contend that Applicant was given a copy of the complaint of SOE to the Prime Minister and also Legal Practitioner’s Unit (LPU) earlier and aware of the nature of the complaint against him. This cannot be accepted. [See Rees v Crane [1994] 1 All ER 833(Privy Council)]
  5. This contention lacks merit for several reasons. These are separate and independent institutions, with distinct powers and none had the power to suspend or remove Applicant from his office. Solicitor General is constitutionally secured post, hence neither LPU nor Prime Minister can suspend or remove Applicant and Section 112 of the Constitution applied only to first and second Respondent for his removal.
  6. Apart from that Applicant should know the complaint made to second Respondent though it may relate to same incident the allegations or specific details may vary.
  7. All the complaints had arisen from one incident, but the complaints were not identical and the measures they can take against Applicant differ significantly.
  8. Only second Respondent can advice first Defendant for suspension and or removal of Applicant from his office. So the contention of second Respondent that since Applicant received complaints of SOE to LPU and Prime Minister, that complaint of SOE to second Respondent need not be disclosed is rejected.
  9. Privy Council in Public Service Commission v Richards [2022] UKPC 1 was an action where court dealt specific provision in a regulation that granted suspension in regard to disciplinary ground on certain instances and reiterated that before suspension there is a ‘duty to act fairly’ and fairness will depend on the circumstances .

“However, with respect to the Court of Appeal in the present case, it does not follow from this that there is no scope in the context of exercise of the power of suspension under reg 88 for the application of a general duty of fairness which might, depending on the circumstances of the particular case, require some form of action on the part of the Commission. Fairness is another name for natural justice, so for convenience the Board will refer to fairness or the duty to act fairly. Legislation is to be construed in the light of values recognised under the common law and which it is presumed the legislature also recognises, so that where legislation confers a discretionary power to take action against an individual there is a presumption that the power must be exercised fairly. What fairness requires depends on the context in which the power arises and the circumstances in which it falls to be exercised.”


  1. Section 16(1) (a) of the Constitution, is subjected to limitations ‘prescribed by law’ and no such limitation applicable to decisions of second regarding Applicant.
  2. Section 6 of the Constitution deals with the Application of Chapter 2 of the Constitution which contains ‘Bill or Rights’. Accordingly this Chapter binds legislative, executive and judicial branches of government at all levels, and every person performing the functions of any public office’. It is axiomatic that second Respondent is bound by ‘Bills Of Rights and more specifically Section 16(1) of the Constitution relating to ‘executive and administrative justice’ relating to its decisions and or actions.
  3. Section 7(4) of the Constitution also obliges the Court to develop rights recognised in terms of Section 16(1) of the Constitution, which are considered as common law, consistently with rights and freedom recognised in ‘Bill or Rights’. Administrative Law is part of common law in many commonwealth jurisdictions including Fiji. So it can be developed in terms of the rights and freedom enshrined in the Constitution. Section 6 (7) of the Constitution makes all administrative actions subject to Bill of Rights.
  4. Section 112(4) of the Constitution makes suspension of Applicant discretionary. Suspension is not a decision that is taken every time there is a possibility of removal under Section 112 of the Constitution.
  5. Privy Council in Rees v Crane [1994] 1 All ER 833 held that right to response depend on the circumstances of the case. So in my mind Section 112(4) of the Constitution requires second Respondent to act fairly in the exercise of its decision to advice suspension. Right to response before suspension of Applicant is not absolute and depends on the circumstances. It is desirable to seek response if that can reasonably done. It depends on necessity and urgency of taking action to suspend and also adverse effect of not suspending immediately.
  6. In this instance Applicant’s alleged misconduct had happened in the conduct of relating representing SOE in a court case. The allegation had come nearly after one month from judgment of that case after the court held against SOE.
  7. The relevant complaint to chairman of second Respondent was dated on 14.9.2021 and the alleged misconduct is contained in five page detailed allegations and also submissions including decided cases relied on by SOE for his contention. So on the face of it the alleged misconduct required a response from Applicant.
  8. Apart from that there was no ‘urgency’ or ‘necessity’ to deny Applicant his right to response before suspension from his post. Second Respondent had not adduced evidence to support ‘urgency’ or ‘necessity’ to suspend Applicant denying his right to response and also to deprive the allegations made against him to second respondent. No submissions made to that effect.
  9. The contention of second Respondent that by the time suspension decision was taken Applicant already had SOE’s complaint to Prime Minister and LPU is without merit, for the reasons given earlier. (See also Rees v Crane [1994] 1 All ER 833.)
  10. There is no evidence or explanation as to why it became ‘urgent’ or ‘necessary’ to suspend the Applicant denying constitutional right to response guaranteed under Bill or Rights, in the Constitution. This right is not an absolute right and can also be curtailed under law. Absence of evidence or explanation by second Respondent in this regard indicate that decision to suspend Applicant was unreasonable and had acted unfairly, thus ultra vires.
  11. So the decision of second Respondent to advice first Respondent to suspend Applicant from his post without seeking explanation is unreasonable and contrary to Section 16(1) (a) of the Constitution considering the circumstances of the case. So the suspension of Applicant from his post is null and void and quashed.
  12. Though suspension of office and the salary are distinct and separate decisions, the ultra vires suspension invariably makes suspension of salary, benefits and allowances unenforceable as it is contingent on suspension of office.
  13. Suspension of salary is not authorised under law for reasons given earlier hence it is illegal. So the decision to deprive salary during suspension is contrary to law and null and void.
  14. Apart from that suspension from post is was held unreasonable and quashed so on that basis there cannot be suspension of salary.
  15. Applicant’s salary, benefits and allowances are paid by the Consolidated Fund in terms of Section 116(13) of the Constitution. This provides financial independence.
  16. Further in Section 116(8) of the Constitution secure the remuneration of Applicant. Second Respondent is given power to decide remuneration and the minimum remuneration is also stated and cannot be less than a permanent secretary or a judge of High Court. It also stated that such remuneration cannot be varied for his disadvantage, except under specific instance stated therein. This secures financial independence for the said positions in the Constitution.
  17. Independence and transparency is the hallmark of the constitutional provisions dealing with removal of judicial officers which applies to Applicant in terms of Section 116(10) of the Constitution.
  18. Absence of specific provision to deprive remuneration during suspension of office pending inquiry in terms of provisions contained in Section 112, needs to be interpreted in the context of the provisions regarding financial and economic independence secured for judiciary and other specified institutions ,in the Constitution.
  19. A judicial officer or Applicant who is suspended pending an inquiry for alleged misconduct, is presumed innocent until proved such misconduct in tribunal. If the misconduct is not proved such a person can reinstated, so the financial independence during suspension is a vital component.
  20. So during the suspension payment of salary, allowance and benefits must not be deprived. If that is not secured it will compromise such officer’s financial or economic dependence during suspension. This security is essential for independence of such officer as well as for the institutional independence.
  21. One obvious and inevitable consequence of suspension of salary, is that person subjected to suspension is compelled to seek employment with immediate effect. So this is an easy and effective way to compel a person to resign from the post in order to seek employment.
  22. This may also lead to seeking employment that may compromising the dignity of the post and also conflicts in a situation of reinstatement. Such situation can affect the reinstatement prospects adversely. It is also to be noted one a person is removed illegally that person is required to mitigate the loss, so seeking employment is no longer an option but a mandatory. So it is essential not to deprive the salary and other allowances pending inquiry by tribunal for removal.
  23. In the absence of any power in section 116 and 112(4) of the Constitution, is intended to protect the independence of the judicial officer (or Solicitor-General) by protecting him or her from interference with his/her income merely on receipt of allegations of misbehaviour. If this is allowed constitutional guarantee as to the independence can seriously erode. Any flimsy or even unmeritorious allegation can result suspension of a post secured under the Constitution including Solicitor General from his post and also suspension of salary indefinitely compelling the person seek alternate employment.
  24. In State v Arbitration Tribunal, ex parte: Life Insurance Corporation of India (Judicial Review No. 6 of 2008, 19 June 2008) this Court held (at page 6) –

“At common law an employer has no right to suspend an employee without pay: Re: Building Workers Industrial Union of Australia – [1979] FCA 68; (1979) 41 FLR 192 at 194. This is so even if the misconduct is such as to justify instant dismissal: Hanley v. Pease & Partners Ltd (1915) 1 KB 698; Gregory v. Phillip Morris Ltd (1988) 80 ALR 455 at 472. Such rights however may be granted by collective agreement or statute. Common law does not permit suspension of contractual rights and obligations except by express or implied agreement. The employer is in an all or nothing situation. Faced with serious misconduct an employer must either dismiss the employee or retain him without loss of contractual rights.”


  1. The above common law position is applied in the interpretation of section 116 read with section 112(4) of the Constitution. Those provisions do not sanction suspension without salary. (see also, State v The Police Service Commission Ex parte Romanu Tikotikoca & Ors, [1993] FLR 12; Ratu Epenisa Seru Cakobau v Fijian Affairs Board (Civil Action no. 295 of 1988, 27 May 1998); Birss v Secretary for Justice [1984] NZCA 24; [1984] 1 NZLR 513; Dixon v Commonwealth [1981] FCA 77; (1981) 55 FLR 34; Rees v Crane [1994] 1 All ER 833; and Public Service Commission v Richards [2022] UKPC 1.
  2. The Suspension Without Pay Decision, first Respondent acted unreasonably, irrationally, ultra vires, illegally, unfairly, disproportionately and unconstitutionally in the exercise of his powers having regard inter alia to ss. 2, 82, 116(8), 116(10), 112, 6 and 16 of the Constitution and the rules of natural justice in that inter alia –

Refusal to Advise Pay Restoration Decision


  1. On 27.9.2021, the Applicant’s solicitors wrote to second Respondent, requesting to take steps to advise first Respondent to the restore the salary, which was suspended.
  2. On 1 .10. 2021, the solicitors for second Respondent, replied and stated that

‘.....

3.Mr. Sharma’s suspension on a without pay basis has not been actioned in any error and will remain so until such time that a decision is made by his Excellency, in respect of the allegations, and in accordance with his powers as set out under the Fijian Constitution’


  1. The solicitor for second Respondent stated that the first Respondent was empowered to suspend the Applicant and there was no legal requirement to suspend the Applicant with pay for the period of suspension, and that there was no error in the decision made and suspension without pay will remain. This conveyed the second Respondent’s refusal to Advise Pay Restoration Decision.
  2. There was no decision provided at hearing regarding, not to pay the salary of Applicant. This is an additional ground to infer that there was no decision made by second Respondent, not to pay the salary of Applicant during suspension.
  3. From the letter of the solicitors for second Respondent it is stated, that the decision to suspend salary was taken by the first Respondent. It stated,

“decision is made by his Excellency, in respect of the allegations, and in accordance with his powers as set out under the Fijian Constitution’.


  1. For the reasons given in Suspension Advice Decision and Suspension without Pay Decision, the failure or refusal of the second Respondent to advise first Respondent, to restore the Applicant’s pay is unlawful and unfair for the same reasons that was unconstitutional.
  2. As stated earlier if there is no provision that authorized suspension of salary of Applicant pending investigation by tribunal in terms of Section 112 of the Constitution. So the refusal to restore the unconstitutional act of suspension of salary invariably becomes illegal and contrary to law and null and void.
    1. Second Respondent had refused to advise the first Respondent to restore the pay on the wrong assumption that first Respondent can decide to deprive Applicant’s salary during suspension of his post. This is not only incorrect legal position but also unreasonable and also irrational and contrary to law for the reasons given earlier.
  3. Refusal to Advise Pay Restoration Decision and not to advise first Respondent to restore the salary of Applicant is unreasonable and ultra vires in terms of Sections 6, 16, 82, 112 , 116(8), 116(10) of the Constitution for the reason given earlier.
  4. On 8 .11. 2021, solicitors for Applicant responded to said refusal.
  5. After that there was lull of events and for nearly seven weeks pending appointment of tribunal in terms of section 112 of the Constitution, which was mandatory under Section 112(3)(a) (i) of the Constitution.
  6. After waiting for nearly two months, instead of appointment of tribunal which was mandatory, second Respondent requested response from specific thirty one questions. This is contrary to law.

Seeking Response Decision.


  1. Second Respondent’s letter of 4.11.2021, which contained thirty one questions directed to Applicant, and also SOE’s letter to second Respondent)
  2. On 4.11.2021, a letter was delivered to Applicant and it contained
  3. After advising suspension of Applicant, pending investigation by a tribunal of the complaints, second Respondent cannot investigate the allegation of SOE in terms of Section 112 of the Constitution.
  4. Second Respondent is not precluded from revoking its decision to suspend in terms of Section 112(4) of the Constitution and advising first Respondent to do so in terms of Section 112(5) of the Constitution. This can happen at any time after suspension but before the tribunal submit its report to the president in terms of Section 112(3) (b) of the Constitution, but there is no concurrent investigatory power granted to second Respondent once it had decided to appoint a tribunal to investigate the complaint in terms of Section 112(3) of the Constitution.
  5. On the above grounds ‘Seeking Response Decision ‘was ultra vires and null and void and quashed.
  6. Without prejudice to above said decision is further, considered for reasonableness. On 5 .11. 2021 Applicant’s solicitors wrote to the Chief Registrar advising that –
  7. The Chief Registrar replied to Applicant’s solicitor’s letter by email at 6.46pm on 5 .11. 2021. This email advised –

And “in the circumstances the period till 4pm on 6th November 2021 is adequate time for Mr Sharma to respond to the questions put to him.” The request for extended time to respond was declined. The Chief Registrar advised that it was “important” that the Applicant took the opportunity to respond.


  1. The Applicant’s solicitors responded to the Chief Registrar on 6.11.2021 and inter alia denied any misbehaviour arising from the complaint of SOE annexed to the thirty one specific queries.
  2. Above letter of 6.11.2021 response to the Chief Registrar, the Applicant expressly denied all or any allegations of misbehaviour and stated that the Applicant would be prepared to give a comprehensive response if allowed a reasonable time to do so.
  3. Section 116(10) of the Constitution confer on second Respondent powers under section 112 in cases of alleged misbehaviour if that warrant removal and they are
  4. Second Respondent can investigate before advising first Respondent that the question of his removal should be investigated by a tribunal as well as before suspending. Once second Respondent decided to advice the first Respondent to investigate removal through a tribunal, again second Respondent cannot investigate to same allegations or misbehaviour as only tribunal can directly advice first Respondent with its report to remove Applicant in terms of Section 112(3)(c) of the Constitution. This is the same when medical board advice on allegation of inability to perform duties.
  5. Second Respondent had advised first Respondent that the question of removal should be investigated by a tribunal. The tribunal was empowered under section 112(3) (b) of the Constitution, to inquire into the matter exclusively.
  6. Without prejudice to above, the decision of second Respondent to provide only two days to reply to specific thirty one questions is unreasonable due to following reasons.
  7. The Constitutional requirements of fairness under section 16 of the Constitution is violated, with a short time period considering the nature of the response and circumstances and the impending consequences.
  8. Second Respondent was aware that by that time Applicant was under legal advice and it is unreasonable to seek such response within two days, when no action was taken for nearly two months prior to this. There was no urgency or necessity for such quick response, after suspension from post without pay.
  9. This affects Applicant’s choice to seek legal counsel. The Constitution does not state a time period for seeking response but it needs to be reasonable considering circumstances. The time period for response depend on the circumstances of the case. In this matter SOE’s complaint was received by second Respondent more than two month ago and Applicant was suspended from his post on 20.9.2021 pending appointment of a tribunal for investigation of the complaint of SOE. He was not paid his salary. In such situation urgency to seek response in two days needs to be justified by second Respondent and it had not done so.
  10. Second Respondent had not shown a reason to give such a short time to response other than to deprive Applicant a fair opportunity to response. Again second Respondent’s reason was that already Applicant had replied to allegation of SOE made to LPU which cannot be accepted as a valid ground for reasons given earlier.
  11. Second Respondent had taken irrelevant consideration in the decision to allow only two days to response, taking into consideration that the Applicant had separately responded to LPU, but it was for different purpose and no time thirty one specific questions asked.
  12. Both LPU and second Respondent are bodies that SOE made complaints and they are required to work independently and confidentially. So the contention that short time period of two days are sufficient is without any merit. What is reasonable under circumstances may vary, but in this instance seeking response to thirty one questions from Applicant in two days is unreasonable. (See Rees v Crane [1994] 1 All ER 833).
  13. The complaint of SOE to second Respondent and it is comprehensive and include legal as well as factual matters. It was more than five pages and thirty one questions were based on that complaint hence required reasonable time and eight working days was a reasonable time under circumstances. Thirty one questions are also comprehensive and cannot be reasonably expect to reply within two days considering circumstances of this case.
  14. Given the serious nature of the allegations made against the Applicant with the potential of removal from office and substantial damage to the Applicant’s reputation and livelihood, Applicant should have been given a fair opportunity to response.
  15. In reaching its Seeking Response Decisions and in delivering to the Applicant its letter dated 4.11. 2021 requiring a response to 31 questions set out therein by 4pm on 6.11. 2021 and in refusing to extend the time for his response, acted ultra vires. So the Decision Seeking Response and failure to extend time are ultra vires null and void and quashed.

Termination Advice Decision and Termination Decision


  1. Paragraphs 8 and 9 of first Respondent’s an Affidavit in reply stated,

“8. On 10 November 2021, the First Respondent received advice from the Second Respondent that in accordance with section 112 of the Constitution, the allegations comprised in the complaint lodged against Mr Sharma are of a factual nature, and do not warrant an investigation through the appointment of a Tribunal. Further, the Second Respondent agrees with the independent legal opinion and advises that His Excellency proceed with making his determination on the Complaint in accordance with section 116(9) of the Constitution. A copy of this letter is annexed marked KT-3. In relation to the independent legal opinion, l have searched our records but could not find a copy of the same.


  1. Having received the advice of the Second Respondent, the First Respondent on 10 November 2021 issued a letter of “Termination of Appointment of the Solicitor-General” to the Applicant. A copy of the letter is annexed, marked KT-4.”
  2. The document exhibited as K-3 (in the affidavit it was annexed as KT 3) is a ‘memo’ to first Respondent from the chairman of second Respondent dated 10.11. 2021. It stated inter alia,

“101. The allegations made by the SOE are factually based. Mr Sharma was given the opportunity to respond to the allegations made by the SOE. Mr Sharma was provided with a right of reply and an opportunity to be heard on the Complaint. In fact, the JSC requested Mr Sharma on two occasions for his response.


  1. Mr Sharma failed to provide his responses.
  2. Based on all of the abovementioned factors, it is our opinion that there is sufficient evidence before the JSC to infer that the allegation of misbehaviour has been made out against Mr. Sharma in his representation of the SOE.”
(f) paragraph 7 and 8 then stated –

“7. The Commission advises your Excellency that in accordance with Section 112 of the Fijian Constitution, the allegations comprised in the complaint lodged against Mr Sharma are of a factual nature, and do not warrant an investigation through the appointment of a Tribunal.


  1. The Commission agrees with the Independent Legal Opinion and advises that Your Excellency proceed with making your determination on the Complaint in accordance with Section 116(9) of the Constitution.” (emphasis added)
  2. The ‘memo’ annexed a copy of a draft letter of termination and this draft letter was adopted and reproduced by first Respondent as letter of termination. So the result of finding as to illegality of ‘memo’ of second respondent will also result in letter of termination illegal ultra vires as well.
  3. Section 112(3) (c) of the Constitution state that first Respondent must act on the advice of the tribunal appointed or medical board in order to remove a ‘judge’. Here only ‘judge’ was used but, the procedure should be applied to all judicial officers, which is applicable to Applicant. If not there will be a lacuna as regard to removal of judicial officers other than judges and what would happen to a report of tribunal in such instance is not stated. Accordingly word ‘judge’ needs to be interpreted contextually to include all judicial officer.
  4. Section 112 applies to all judicial officers and the only exception is President of Court of Appeal and Chief Justice in terms of Section 112(7) of the Constitution.
  5. When taken as whole section 112 does not treat judges differently from other judicial officers as regards to removal from office.
  6. If there are two distinct provision for judges and other judicial officers the Section 112 of the Constitution should contain as to the procedure for removal of other judicial officers separately. There is none.
  7. In terms of Section 112(3) (b) the report of the tribunal appointed for investigation of the allegation of misbehaviour or report of medical board in case of allegation of inability to perform of all judicial officers including judges submitted to first Respondent.
  8. Section 112 (3) (c) applies to all judicial officers and tribunal submits reports first Respondent in terms of Section 112(3) (b) of the Constitution. If not there should be a provision as to what happens to reports of tribunal or medical board regarding judicial officers other than judges. As no such provision is found the word ‘judge’ should be interpreted contextually to include all the categories of judicial officers stated in Section 112(3) (b) of the Constitution.
  9. Absence of such division is also clear from Section 116(10) where the removal of Solicitor General from office is the same as ‘removal of judicial officer under Section 112’. If there were two distinct removals, what should be applied to Solicitor General must be stated in Section 116(10) of the Constitution. Absence of such also shows that there was no distinction between judges and other judicial officers as to the removal procedure laid in the constitution.
  10. Irrespective of using word ‘judge’ in section 112 (3) (c) of the Constitution, there is no power for conferred to second Respondent to remove a judicial officer or to advice first Respondent to remove all judicial officers including Applicant from his office.
  11. Removal of judicial officer from his post by first Respondent, must be on advice of tribunal or medical board in terms of Section 112(3) (c) of the Constitution, this power of the tribunal or medical board, is exclusive power and cannot be exercised by second Respondent. This is to prevent any bias or conflict, and also allowing fair procedure for removal of judicial officers. So Section 112(3) (c) is applicable for Applicant.
  12. In terms of Section 112 only the tribunal appointed for investigation of the alleged misbehaviour or medical board appointed can only advice first Respondent regarding removal of judicial officer including Applicant.
  13. There is no provision that allowed second Respondent to advice removal of judicial officer or Applicant without appointment of tribunal or medical board. Despite this second Respondent had advised first Respondent through a ‘memo’ dated 10.11.2021, which is contrary to law and ultra vires.
  14. Second Respondent’s ‘memo’ stated that allegations against the Applicant were of a “factual nature and do not warrant an investigation through the appointment of a Tribunal” is ultra vires.
  15. Irrespective of the suspension of the office of the judicial officer, which is discretionary, second Respondent must appoint a tribunal or medical board to investigate the misconduct or medical condition before removal on misconduct or inability to perform duties.
  16. There is no power with second Respondent to refrain from appointing a tribunal or medical board and to usurp the exclusive power granted by the Constitution for such tribunal or medical board and advice first Respondent for removal of judicial officer.
  17. Section 112 (3) (b) and (c) of the Constitution empowers only the tribunal, to inquire in to the alleged misbehaviour, and furnish a written report of the facts to first Respondent, and recommend whether a removal is warranted. Second respondent, has no power to advice removal of judicial officer, pending appointment of tribunal whether the allegations are ‘factual ‘or otherwise.
  18. It is not clear when second Respondent sought ‘independent legal advice’ and whether such decision was ever communicated and considered by the members of second Respondent.
  19. Even if there was a decision by second Respondent to obtain ‘independent legal advice’ it is not clear whether said legal advice was communicated or considered by the members of the second Respondent. It is incomprehensible that such a legal advice was relied on by second Respondent if deliberated on it.
  20. Irrespective of any legal opinion, the obligation to follow constitutional provision was conferred with second Respondent. This obligation includes application of Bill of Rights contained in Chapter 2 of the Constitution of Constitution in terms of Section 6 of the Constitution.
  21. Not only first Respondent had no legal authority for the ‘memo’ of 10.11.2021, but also said ‘memo’ at last paragraph stated

‘Your Excellency proceed with making your determination on the Complaint in accordance with Section 116(9) of the Constitution’


  1. Neither Section 116(9) of the Constitution nor any other provision in the Constitution allowed first Respondent to make ‘determination’ regarding removal of judicial officers, which is applicable to Applicant. As stated this is contrary to Section 82 of the Constitution.
  2. Accordingly termination advice decision contained in the ‘memo’ and also enclosed draft letter are contrary to law.
  3. On 10 .11. 2021, the Applicant was served the letter of termination of first Respondent and this is reproduction of draft letter of termination enclosed with the ‘memo’ of 10.11.2021. It stated,

“RE: TERMINATION OF APPOINTMENT AS THE SOLICITOR GENERAL

I write to you in my capacity as your Appointing Authority under 2013 Fijian Constitution.


On 14th September2021, a complaint was lodged against you in your capacity as the Solicitor General of Fiji. On 20th September 2021, I had suspended your appointment as the Solicitor General.

In accordance with Section 116(9) and 112 of the Fijian Constitution and following the advice of the Judicial Services Commission(“Commission”), I am in agreement that the allegations comprised in the complaint lodged against you, are factual nature and do not warrant an investigation through the appointment of a Tribunal.


I am informed and advised that:


  1. You were given a copy of the complaint;
  2. You were invited to provide your response to specific questions, emanating from the facts and allegations contained in the complaint;
  3. You failed to comply with the request to respond;
  4. Having received your request for further time, the Commission declined the same, and encouraged you to respond within the time allocated to you;
  5. You again failed to provide your response.
  6. In the circumstances, you failed to provide any material whatsoever to refute and respond to the allegations made in the complaint, and thus left the Commission with no material to put before me, for my consideration in respect of your response.

Having received the advice of the Commission, and having considered the complaint, I find that you failed to discharge your responsibilities under Section 116(2) of the Fijian Constitution in respect of the matters laid out in the complaint. Further your conduct, including that which is referred to in paragraph 4 herein, when considered in its entirety, is tantamount to cumulative misbehaviour.


In view of the above, I hereby terminate your appointment as the Solicitor –General for misbehaviour in accordance with Section 116(9) of the Fijian Constitution.

Any dues owed to you up to the date of your suspension will be paid to you, and you will be provided with Certificate of Service. You are reminded that you are bound by all relevant confidentiality provisions that have applied in the course of your tenure as the Solicitor General, and which continue to apply after your termination...”


  1. First Respondent made a finding that the Applicant had failed to discharge his responsibilities under s.116 (2) of the Constitution in respect of the matters laid out in the complaint, and that his conduct in failing to respond to the questions, was “tantamount to cumulative misbehaviour.” First Respondent cannot make a determination and only act on the advice of the tribunal or medical board, for removal of a judicial officer in terms of Section 112(3)(b) and (c) of the Constitution.
  2. First Respondent terminated the Applicant’s appointment as the Solicitor-General for misbehaviour. This was contrary to what was stated in the letter of suspension of Applicant’s office without salary dated 20.9.2021. In that letter Applicant was informed that a tribunal would be appointed to investigate the alleged misbehaviour in terms of Section 112(3) (a) of the Constitution.
  3. According to letter of termination dated 10.11.2021, first Respondent was ‘in agreement’ with the allegations contained in the complaint against the Applicant was of a “factual nature” and did not warrant an investigation through the appointment of a Tribunal. Further stated that “having received the advice of the Commission” found that the Applicant had failed to discharge his responsibilities under the Constitution, and further that the Applicant’s conduct, when considered in its entirety, was “tantamount to cumulative misbehaviour”. These indicate that first Respondent had made a determination on factual and legal issues and this is ultra vires in terms of Section 82 of the Constitution.
  4. The memo of 10.11.2021 second Respondent stated in paragraph 7 that there was no need to appoint a tribunal for investigation. It is mandatory to appoint a tribunal if the allegations of the misbehaviour are to be investigated before removal as only such tribunal can advise first Respondent for removal of judicial officer including Applicant.
  5. In Rees v Crane [1994] 1 All ER 833, the Privy Council considered in detail a similar provision in the Constitution of Trinidad and Tobago. Section 137 of the Constitution of Trinidad and Tobago is identical to section 112 of Fiji’s Constitution in terms of the role of second Respondent The only difference in Trinidad and Tobago is that, after the tribunal investigates and reports on the facts to the President, the President is then required to refer the report of the Tribunal to the Privy Council for its advice on whether a judge should be removed from office. The President then acts on the advice of the Privy Council. Trinidad and Tobago is a Commonwealth nation which has the Privy Council as its final appellate court. The Privy Council stated (at page 842) –

“The appellants contend that proceedings under s 137 are in three parts which in combination are intended to protect, and sufficiently to protect, the independence of the judiciary. The commission, however, merely initiates the process—it does no more than to represent to the President that a question ought to be investigated. It makes no decision or determination; it finds no facts; it does not even state an opinion.” (emphasis added)


  1. Similarly, in Barnwell v Attorney General (as cited above), the Guyanese Court of Appeal said at p.98 –

“Article 197 of the Constitution establishes the system by which a judge may be removed from office prematurely. It is a system which empowers certain constituted authorities to perform certain functions sequentially in this process of removal. It is a unique procedure, designed to ensure that the security of a judge in his office cannot be lightly or casually disturbed, and it is in essence throughout a judicial process.

There are two grounds for removal of a judge under art 197(3): inability to perform or ‘misbehaviour’ (misconduct). The former may be considered as a ‘no fault’ situation, while ‘misbehaviour’ implies culpable behaviour on the part of a judge. Article 197(4) requires the formal act of removing a judge from office to be performed by His Excellency the President, who must act once the tribunal advises him that the judge ought to be removed from office. That this duty is required to be performed by the head of state appropriately emphasises the solemnity of such an act so as to reinforce the notion of independence of the judiciary and the security of a judge in his office, which is an important attribute of the judiciary’s independence.” (emphasis added)


Further at p.127 –


“The framers of the Constitution invested the JSC with the power of commencing the process by which, and only by which, a puisne judge may be removed from office. No other body or person has the power or duty of doing so – not the President, not the Prime Minister, no member of the executive or legislative organs of Government – only the JSC. Admittedly, JSC does not have the power to remove the judge, but it is the JSC, and only the JSC that has the power of taking the first step in the chain of steps that can ultimately result in the removal of the judge from office. And be it ever remembered and borne in mind that under art 197(5) of the Constitution once the JSC ‘ represents the question to the President’, the President is in law bound to set up a tribunal of inquiry; the President simply has no discretion in the matter.” (emphasis added)


  1. First Respondent, had no authority to consider the complaint and make findings of misbehaviour. (see Meerabux v Attorney-General of Belize [2005] UKPC 12.
  2. The need for a process independent from the legislature and the executive government has been aptly highlighted by the Privy Council in Chief Justice of Trinidad and Tobago v Law Association of Trinidad and Tobago [ 2018] UKPC 23 held,

“18. A vital element in any modern democratic constitution is the independence of the judiciary from the other arms of government, the executive and the legislature. This is crucial to maintaining the rule of law: the judges must be free to interpret and apply the law, in accordance with their judicial oaths, not only in disputes between private persons but also in disputes between private persons and the state. The state, in the shape of the executive, is as much subject to the rule of law as are private persons. An important part of the judicial task in a constitutional democracy is not only to ensure that public authorities act within their powers but also to enforce the fundamental rights of individuals against the state. Judicial independence is secured in a number of ways, but principally by providing for security of tenure: in particular this requires that a judge may only be removed from office, or otherwise penalised, for inability or misbehaviour and not because the government does not like the decisions which he or she makes. It is also required that removal from office should be in accordance with a procedure which guarantees fairness and the independence of the decision-makers from government.”


  1. Termination letter based on unlawful ‘memo’ is also contrary to law and ultra vires.
  2. The constitution allows Applicant to be Solicitor General till he reaches age of seventy.
  3. 8 .12. 2021, a sum of $52,523 was accepted by Applicant as “leave compensation”. This was prior to institution of this action, where inter alia Applicant sought reinstatement.
  4. The Applicant had mitigated his loss. He eventually managed to find alternative employment at the University of the South Pacific, as Director of Professional Legal Training. The salary is below the salary he was entitled to as Solicitor-General of Fiji and he still holds it. There is no security of the tenure secured under Constitution in his current employment.
  5. Appointment as Solicitor-General was secure until 70 years under normal condition. Applicant can resign or removed for misbehaviour or inability in terms of the law.
  6. Applicant earned no income from 20 .9. 2021 to 27 .6. 2022.

REMEDIES


  1. In Berkeley v Secretary of State for the Environment [2000] UKHL 36; [2000] 3 All ER 897 the House of Lords allowed an appeal against the lower courts discretion not to grant relief and quashed the decision of the respondent. The House of Lords held that –

“It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires: see Glidewell L.J. in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P. & C.R. 343, 353”


  1. If a substantial breach is established, then the courts must not leave the victim without relief and must grant appropriate relief, including declarations. This was the so held by the New Zealand Court of Appeal in NZ Employers Federation Inc v NUPE [2001] NZCA 315; [2002] 2 NZLR 54.
  2. In McLaughlin v Governor of Cayman Islands [2007] UKPC 50 the Privy Council, in granting orders that the appellant remained an employee until such time when he resigns or when his tenure lawfully ends, discussed the grounds on which the courts may, in its discretion, refuse relief –

“Since public law remedies are, for the most part, discretionary, it necessarily follows that a claimant may be disabled from obtaining the full relief he seeks whether on grounds of lack of standing, delay or his own conduct, or grounds pertaining to the facts of the particular case. In Evans, the House was unwilling to treat the claimant, a probationary police constable who elected, under pressure, to resign as remaining in the police. In Jhagroo, the Board was unwilling to treat the claimant as remaining in office, he being physically disabled (para 42) and regarding his employment as effectively terminated (para 43).”


  1. Applicant has filed this application within three months, which is the prescribed time for seeking the relief of certiorari. The Applicant was suspended on 20 .9. 2021 and was terminated from his employment on 10.11. 2021. The Applicant filed his application for judicial review on 16 .12. 2021.
  2. Even in the case of delay, the Fiji Court of Appeal in Talawadua v Commissioner of Police (Civil Appeal No. 54 of 2001, 31 May 2002), held that the appellant in that case was still entitled to a declaration that he was wrongly dismissed from the Fiji Police Force. The Court of Appeal did not award damages because damages were not pursued by the appellant in that case. The Court of Appeal held that it is only in rare cases that relief is refused:

“In a case such as this where the fundamental right to be heard before an adverse decision is made (especially one affecting livelihood) has been denied, only in the rarest of circumstances will relief be refused. First because the Court’s function on Judicial Review is to ensure that the rules of natural justice are observed and not to substitute its own opinion on the merits. Secondly because of the inherent danger that in the absence of explanation wrong decisions may be reached and injustices done.”


  1. The Supreme Court of Fiji in Permanent Secretary for Public Service Commission v Matea (Civil Appeal No. 9 of 1998, 10 March 1999) upheld the quashing of a decision to terminate the employment of a civil servant in breach of the rules of natural justice. It was argued by the appellant in that case that a hearing and compliance with natural justice would serve no useful purpose. The Supreme Court stated –

“The Permanent Secretaries appeal to this Court from the decision of the Court of Appeal on the first ground. But the law on such a question is so clear that the appeal is virtually hopeless. There are numerous authorities establishing, at common law, that where someone’s livelihood is at stake that person is entitled to a fair opportunity of a hearing unless the relevant legislation has clearly excluded it. There is a presumption that natural justice applies; or, as Lord Reid put it in Wiseman v Borneman [1971] A.C. 298, the courts supplement procedure laid down in legislation if the statutory procedure is insufficient to achieve justice and the additional steps would not frustrate the apparent purpose of the legislation. We repeat that we are not now called upon to consider whether the Constitution requires some qualification of the last part of Lord Reid’s proposition. The general presumption of a common law right to a hearing is, however, so well established that we need not labour it. As already indicated, an opportunity for some form of fair hearing by the Commission is perfectly consistent with the scheme of the Regulations. It is only the elaborate disciplinary code procedure that is excluded in a case such as this.

The importance of the right to natural justice in this case is evident when one considers the long and unexplained (except for a conjecture that the file had been mislaid) delay before the Commission took action. The respondent would almost certainly have wished to stress that this alone made the extreme penalty inappropriate. He might well also have contended that in the circumstances the criminal penalties were sufficient: that it would be unjust to impose, in substance, double punishment for an offence which, although serious, was not work-related. Compare Ziems v The Prothnotary of New South Wales [1957] HCA 46; (1957) 97 C.L.R. 279 where it was held that in the particular circumstances the removal of a barrister’s name from the Roll of Barristers was too severe a professional penalty when he had been convicted by a court of motor manslaughter and sentenced to two years imprisonment with hard labour.

There is regrettably one other aspect on which we must comment. Counsel for the appellants included in his written submissions to this Court suggestions that a hearing by the Commission would serve no useful purpose, as the Commission would still give the same decision. Wisely he withdrew these suggestions when their gravity was pointed out to him. The case is obviously not of those rare ones in which the outcome as to penalty is a foregone conclusion. On the contrary, after this lapse of time a fair-minded Commission could reasonably decide to take no action. And, if there were reason to infer that the Commission had approached the issue of penalty with closed minds, any decision adverse to the respondent would be vulnerable to judicial review on that ground.”


  1. Court of Appeal in Public Service Commission v Kotobalavu (Civil Appeal No. 31 of 2004, 11 November 2004) held,

“There are two ways in which the issue was neither moot, nor one the determination of which lacked a practical utility. First, and foremost, while the termination decision stood, the Respondent was a person who went forward with an entry on his record of having been dismissed from the Public Service of Fiji, as the result of findings of multiple breaches of the Code of Service, some of which, having regard to the multiplicity of breaches alleged under each count, could only have been regarded as seriously reflecting on his honesty and integrity. This was not aided by the continuing uncertainty as to which of the very many allegations that were encompassed within each count, had in fact been made good. There was a practical utility for him in having his name cleared, since the presence of such an entry on his record may well have affected him in public life, and in seeking future employment, whether in the civil service, or in the private sector.

It was this kind of consideration that was regarded as important in Peters v Davidson (1993) 3 NZLR 744 where it was held that judicial review was justified to correct an error of law which materially affected a matter of substance relating to a finding, particularly where the error damaged the reputation of the person directly concerned in the inquiry (See also Institute of Chartered Accountants of New Zealand v Bevan [2002] NZCA 270; (2003) 1 NZLR 154 at 170).

Of less importance and probably insufficient of itself, is the fact that if the termination decision was quashed, then the Respondent was entitled, should he seek it, to payment of his salary between 27 March and 19 April, a period of 3 weeks or so.

In any event the issues which arose concerning the decision of the Appellant, and the procedure which were followed were of general public interest, and of importance to the Public Service generally, in relation to the correct way in which disciplinary proceedings brought under the Public Service Act should be conducted.

In these circumstances, we are not persuaded that the proceedings were moot, or that relief should have been refused by reference to the principles earlier noted. Put another way, we are not persuaded that the discretion which existed was exercised other than in accordance with proper principles.”


  1. In Bradbury v Enfield London BC [1967] 3 All ER 434 Lord Denning MR stated that “Even if chaos should result, still the law must be obeyed.” In Lower Hutt CC v Bank [1974] 1 NZLR 545, the New Zealand Court of Appeal rejected the arguments of administrative difficulties and upheld the decision to grant a writ of prohibition in judicial review, holding that, “expedience cannot be promoted to the stage of denying citizens fundamental rights.”
  2. High Court in Prasad v Divisional Engineer Northern (Judicial Review No. 3 of 2007, 25 .9. 2008) in which the Court quashed the decision of the respondent to dismiss the applicant who was an accounts officer, and issued declarations as to the invalidity of the respondent’s decision and awarded damages to respondent.
  3. The Applicant also seeks damages as follows –
  4. Applicant had sought to judicial review six decisions taken by first and second Respondents. They are

“(a) the decision of the first Respondent on 20 .9. 2021, following receipt of a letter of complaint dated 14 .9. 2021 from the SOE, to advise first Respondent to suspend the Applicant from Office (“Suspension Advice Decision”).


(b) the decision of first Respondent on 20 .9. 2021 to suspend the Applicant from office without remuneration (“Suspension Without Pay Decision”);


(c) the decision of second Respondent on or about 1 .10. 2021 that it would not advise the President to reinstate the remuneration of the Applicant (“Refusal to Advise Pay Restoration Decision”);


(d) the decision of second Respondent, on or about 4 .11. 2021 to seek specific answers for thirty one questions from Applicant in two days and, and the decision on 5 .11. 2021 to refuse to extend to ‘eight working days’ for the Applicant to provide a response (“Seeking Response Decision”);


(e) the decision of the second Respondent on or about 10 .11. 2021 to advise first Respondent to terminate the appointment of the Applicant (“Termination Advice Decision”); and


(f) the decision of First Respondent on 10 .11. 2021 to terminate the appointment of the Applicant (“Termination Decision”).


  1. For the reasons given in this judgment all six decisions except termination are declared null and void and quashed. The last decision of first Respondent is also declared unlawful and the dismissal of Applicant is declared illegal and contrary to law. For the reason given below I do not quash termination though it is contrary to law and ultra vires, and confine to declaration for following reasons.
  2. The remedies are discretionary depending on the circumstances. One option available is to reinstate Applicant and also for compensation for past damages. It should be noted that decision to suspend Applicant was quashed for not following rules of natural justice, considering the circumstances of the case.
  3. SOE’s complaint was not withdrawn, hence Applicant can again be suspended after rules of natural justice followed by second Respondent in the exercise of its discretion properly and advising accordingly, to first Respondent to suspend Applicant with salary.
  4. At the moment Applicant is gainfully employed in a University under a contract. There are also obligations under it. A reinstatement under these circumstances may cause more harm than good to all the parties considering the circumstances. It should also be noted the post of Solicitor General is a vital part of a government and ‘chaos’ in such a position is not desirable and can be distinguished from Bradbury v Enfield London BC [1967] 3 All ER 434 (PerLord Denning MR) . The court should be mindful of all the circumstances when remedies are awarded in judicial review in the exercise of its discretion.
  5. Apart from that an affidavit in reply filed on 4.5.2023 also allege Applicant had claimed annual leave, which was paid at the termination of employment. Complaint was that he was paid an unlawful sum for that. This is a matter still under investigation. Applicant in his reply stated that he never claimed for payment for annual leave but admit the receipt of the sum to his bank account after he was illegally terminated from post.
  6. It should also be noted Applicant was unlawfully deprived of his salary during suspension from his post. Applicant could suspend after due process, but cannot deny his salary and this did not happen and this resulted Applicant seeking employment and perhaps also accepting payment for annual leave. Thereafter on 10.11.2021 Applicant was illegally terminated his employment. He had sought employment gainfully sharing his experience with students, receiving lesser remuneration.
  7. A new Solicitor General was also appointed, but fruits of illegal act of removal of Applicant cannot be a reason to deny a legitimate relief for Applicant. So I reject this as a reason for not to reinstatement, but mindful of the vital role of the position, and stability of the post.
  8. Applicant is not a judicial officer or part of judicial branch of government but part of executive, but the protection for removal similar to ‘judicial officer’ in terms of Section 112.
  9. Considering all the above factors and circumstances in my mind Applicant’s remedies should be confined to award of damages in lieu of re-instatement and they are assessed in the following manner:

(a) his lost income for the 51 day period of his suspension amounting to $27,913.49 gross plus 8% Fiji National Provident Fund of $2,233.08;


(b) Special damages for his lost income from 10 .11. 2021 to the date of the hearing (581 days) at the rate of $199,773 per annum amounting to $317,994.83, from which credit must be given for the $130,373.84 he will have earned from USP i.e. net $187,620.99 p.a. plus 8% Fiji National Provident Fund contribution of $15,009.68;


(c) Loss to future earnings multiplier of 10 is used considering the circumstances such as having fair prospects of employability but there will not be Constitutional security as to tenure, considering his experience and qualifications and other uncertainties in 22 year time left to reach age of retirement.


For multiplicand, his annual salary at the time of termination $221,971.00 p.a. is considered


So future loss 10X 221,971.00 = $2,219,710.00


8% Fiji National Provident Fund of $ 177,576.8


(d) aggravated vindicatory damages of $150,000
(e) Applicant is also granted a cost of $15,000 assessed summarily.

Final Order


(a) All the six decisions for which leave for judicial review granted are declared unlawful, ultra vires for reasons given. All of them except termination are quashed.

(b) His lost income for the 51 day period of his suspension amounting to $27,913.49 gross plus 8% Fiji National Provident Fund of $2,233.08;

(c) Special damages for his lost income from 10 .11. 2021 to the date of the hearing (581 days) at the rate of $199,773 per annum amounting to $317,994.83, from which credit must be given for the $130,373.84 he will have earned from USP i.e. net $187,620.99 p.a. plus 8% Fiji National Provident Fund contribution of $15,009.68;

(d) Loss to future earnings multiplier of 10 is used considering the circumstances such as having fair prospects of employability but there will not be Constitutional security as to tenure, considering his experience and qualifications and other uncertainties in 22 year time left to reach age of retirement.

For multiplicand, his annual salary at the time of termination $221,971.00 p.a. is considered


So future loss 10X 221,971.00 = $2,219,710.00


8% Fiji National Provident Fund of $ 177,576.8


(f) aggravated vindicatory damages of $150,000
(g) Applicant is also granted a cost of $15,000 assessed summarily.

Dated at Suva this 27th day of January, 2024.


.....................................
Justice Deepthi Amaratunga
High Court, Suva


[1] See Section 163 of the Constitution for interpretation of judicial officer

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