Constitution

Fiji 2013 Constitution

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Table of Contents

CHAPTER 5. JUDICIARY

Part A. COURTS AND JUDICIAL OFFICERS

97. Judicial authority and independence

  1. The judicial power and authority of the State is vested in the Supreme Court, the Court of Appeal, the High Court, the Magistrates Court, and in such other courts or tribunals as are created by law.
  2. The courts and all judicial officers are independent of the legislative and executive branches of Government, and are subject only to this Constitution and the law, which they must apply without fear, favour or prejudice.
  3. No person may interfere with the judicial functioning of the courts, or unreasonably interfere with the administrative functioning of the courts.
  4. Parliament and Cabinet, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, accessibility and effectiveness.
  5. Parliament must ensure that the Judiciary has adequate financial and other resources to perform its functions and exercise its powers properly.
  6. The Judiciary has control of its own budget and finances, as approved by Parliament.

98. Supreme Court

  1. The Supreme Court consists of-
    1. the Chief Justice, who is the President of the Supreme Court; and
    2. such other Judges as are appointed as Judges of the Supreme Court, to serve as the occasion requires.
  2. If deemed necessary by the Chief Justice, any of the Justices of Appeal may sit on a matter being heard by the Supreme Court.
  3. The Supreme Court-
    1. is the final appellate court;
    2. has exclusive jurisdiction, subject to such requirements as prescribed by written law, to hear and determine appeals from all final judgments of the Court of Appeal; and
    3. has original jurisdiction to hear and determine constitutional questions referred under section 91(5).
  4. An appeal may not be brought to the Supreme Court from a final judgment of the Court of Appeal unless the Supreme Court grants leave to appeal.
  5. In the exercise of its appellate jurisdiction, the Supreme Court may-
    1. review, vary, set aside or affirm decisions or orders of the Court of Appeal; or
    2. make any other order necessary for the administration of justice, including an order for a new trial or an order awarding costs.
  6. Decisions of the Supreme Court are, subject to subsection (7), binding on all other courts of the State.
  7. The Supreme Court may review any judgment, pronouncement or order made by it.

99. Court of Appeal

  1. The Court of Appeal consists of-
    1. a Judge, other than the Chief Justice, who is appointed as the President of the Court of Appeal; and
    2. such other Judges as are appointed as Justices of Appeal.
  2. If deemed necessary by the President of the Court of Appeal, any of the Judges of the High Court, other than the Chief Justice, may sit on a matter being heard by the Court of Appeal.
  3. The Court of Appeal has jurisdiction, subject to this Constitution and to such requirements as prescribed by written law, to hear and determine appeals from all judgments of the High Court, and has such other jurisdiction as is conferred by written law.
  4. Appeals lie to the Court of Appeal as of right from a final judgment of the High Court in any manner arising under this Constitution or involving its interpretation.
  5. A written law may provide that appeals lie to the Court of Appeal, as of right or with leave, from other judgments of the High Court in accordance with such requirements as prescribed in that written law or under the rules pertaining to the Court of Appeal.

100. High Court

  1. The High Court consists of-
    1. the Chief Justice;
    2. such other Judges as are appointed as Judges of the High Court;
    3. Masters of the High Court; and
    4. Chief Registrar of the High Court.
  2. The jurisdiction and powers of the Masters of the High Court and the Chief Registrar of the High Court shall be prescribed by written law.
  3. The High Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other original jurisdiction as is conferred on it under this Constitution or any written law.
  4. The High Court also has original jurisdiction in any matter arising under this Constitution or involving its interpretation.
  5. The High Court has jurisdiction, subject to conferral by written law of rights of appeal and to such requirements as may be prescribed by written law, to hear and determine appeals from all judgments of the Magistrates Court and other subordinate courts.
  6. The High Court has jurisdiction to supervise any civil or criminal proceedings before a Magistrates Court or other subordinate courts and may, on an application duly made to it, make such orders, issue such writs and give such directions as it considers appropriate to ensure that justice is duly administered by the Magistrates Court and other subordinate courts.
  7. If in any proceedings in a Magistrates Court or a subordinate court, a question arises as to the interpretation of this Constitution, the Magistrates Court or a subordinate court may decide the matter, and its decision may be appealed as of right to the High Court.

101. Magistrates Court

  1. The Magistrates Court consists of-
    1. the Chief Magistrate; and
    2. such other Magistrates as are appointed by the Judicial Services Commission.
  2. The Magistrates Court has such jurisdiction as conferred by a written law.

102. Other courts

A written law may establish and determine the authority of other courts, tribunals or commissions, which may have a status similar to the High Court, the Magistrates Court, or other subordinate courts.

103. Court rules and procedures

  1. The President of the Supreme Court may make rules of court and issue directions, consistent with this Constitution or a written law, for regulating and prescribing the practice and procedure to be followed in the Supreme Court.
  2. The President of the Court of Appeal may make rules of court and issue directions, consistent with this Constitution or a written law, for regulating and prescribing the practice and procedure to be followed in the Court of Appeal.
  3. The Chief Justice may make rules of court and issue directions, consistent with this Constitution or a written law, for regulating and prescribing the practice and procedure to be followed in the High Court and the Magistrates Court.

104. Judicial Services Commission

  1. The Judicial Services Commission established under the Administration of Justice Decree 2009 continues in existence, and shall consist of-
    1. the Chief Justice, who is to be the chairperson;
    2. the President of the Court of Appeal;
    3. the Permanent Secretary responsible for justice;
    4. a legal practitioner to be appointed by the President on the advice of the Chief Justice following consultation by the Chief Justice with the Attorney-General and who-
      1. has not less than 15 years post-admission practice; and
      2. has not been found guilty of any disciplinary proceeding involving legal practitioners whether in Fiji or abroad, including any proceeding by the Independent Legal Services Commission or any proceeding under the law governing legal practitioners, barristers and solicitors prior to the establishment of the Independent Legal Services Commission; and
    5. a person, not being a legal practitioner, appointed by the President on the advice of the Chief Justice following consultation by the Chief Justice with the Attorney-General.
  2. In addition to the functions conferred on it elsewhere in this Constitution, the Commission may investigate complaints about judicial officers.
  3. In addition to the functions conferred on it by or under this Constitution, the Commission has such other powers and functions as may be prescribed by a written law.
  4. The Commission shall be responsible for promoting programmes for the continuing education and training of Judges and judicial officers.
  5. The Commission shall be responsible for the efficient functioning of the Judiciary.
  6. The Commission may regulate its own procedure and may make such rules and regulations as it deems fit for regulating and facilitating the performance of its functions.
  7. The Commission shall provide regular updates and advice to the Attorney-General on any matter relating to the Judiciary or the administration of justice.
  8. In the performance of its functions or the exercise of its authority and powers, the Commission shall be independent and shall not be subject to the direction or control of any person or authority, except by a court of law or as otherwise prescribed by written law.
  9. The secretary of the Commission shall be the Chief Registrar, or any other person performing the functions of that office.
  10. The quorum for the meetings of the Commission shall consist of the chairperson and 2 other members.
  11. The members of the Commission referred to in subsection (1)(d) and (e) shall be appointed for a term of 3 years and shall be eligible for re-appointment.
  12. The members of the Commission referred to in subsection (1)(d) and (e) shall be entitled to such remuneration as determined by the President acting on the advice of the Chief Justice following consultation by the Chief Justice with the Attorney-General, and any such remuneration must not be varied to their disadvantage, except as part of an overall austerity reduction similarly applicable to all officers of the State.
  13. The members of the Commission referred to in subsection (1)(d) or (e) maybe removed from office for inability to perform the functions of office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and may not otherwise be removed.
  14. Removal from office of the members of the Commission referred to in subsection (1)(d) or (e) must be pursuant to subsection (15).
  15. If the Chief Justice, following consultation with the Attorney-General, considers that the question of removal of the member of the Commission referred to in subsection (1)(d) or (e) from office ought to be investigated, then-
    1. the Chief Justice appoints-
      1. 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 are qualified to hold the office of a Judge; and
      2. 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;
    2. 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 member of the Commission referred to in subsection (1)(d) or (e) should be removed from office; and
    3. in deciding whether or not to remove the member of the Commission referred to in subsection (1)(d) or (e) from office, the President must act in accordance with the advice of the tribunal or medical board, as the case may be.
  16. The President on the advice of the Chief Justice following consultation by the Chief Justice with the Attorney-General may, on such terms and conditions as he or she deems fit, suspend the member of the Commission referred to in subsection (1)(d) or (e) from office pending investigation and pending referral to and appointment of a tribunal or a medical board under subsection (15), and may at any time, revoke the suspension.
  17. The suspension of the member of the Commission referred to in subsection (1)(d) or (e) from office under subsection (16) ceases to have effect if the President determines that the person should not be removed from office.
  18. The report of the tribunal or the recommendations of the medical board, as the case may be, made under subsection (15) shall be made public.

105. Qualification for appointment

  1. The making of appointments to a judicial office is governed by the principle that judicial officers should be of the highest competence and integrity.
  2. A person is not qualified for appointment as a Judge unless he or she-
    1. holds, or has held a high judicial office in Fiji or in another country prescribed by law; or
    2. has had not less than 15 years post-admission practice as a legal practitioner in Fiji or in another country prescribed by law, and has not been found guilty of any disciplinary proceeding involving legal practitioners whether in Fiji or abroad, including any proceeding by the Independent Legal Services Commission or any proceeding under the law governing legal practitioners, barristers and solicitors prior to the establishment of the Independent Legal Services Commission.
  3. A person is not qualified for appointment as a Magistrate unless he or she-
    1. holds, or has held a judicial office in Fiji or in another country prescribed by law; or
    2. has had not less than 10 years post-admission practice as a legal practitioner in Fiji or in another country prescribed by law, and has not been found guilty of any disciplinary proceeding involving legal practitioners whether in Fiji or abroad, including any proceeding by the Independent Legal Services Commission or any proceeding under the law governing legal practitioners, barristers and solicitors prior to the establishment of the Independent Legal Services Commission.

106. Appointment of Judges

  1. The Chief Justice and the President of the Court of Appeal are appointed by the President on the advice of the Prime Minister following consultation by the Prime Minister with the Attorney-General.
  2. The Judges of the Supreme Court, the Justices of Appeal and the Judges of the High Court are appointed by the President on the recommendation of the Judicial Services Commission following consultation by it with the Attorney-General.
  3. The President may, on the advice of the Prime Minister following consultation by the Prime Minister with the Attorney-General, appoint a Judge or a person who is qualified for appointment as a Judge to act as the Chief Justice during any period, or during all periods, when the office of the Chief Justice is vacant or when the Chief Justice is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
  4. 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 a Judge of the High Court during any period or during all periods, when an office of a Judge of the High Court is vacant or when a Judge is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
  5. A person is not eligible to be appointed under subsection (4) unless he or she is qualified for appointment as a Judge.

107. Other appointments

  1. The Judicial Services Commission has the authority to appoint Magistrates, Masters of the High Court, the Chief Registrar, and other judicial officers as may be prescribed by any written law.
  2. In making appointments under subsection (1), the Judicial Services Commission must consult with the Attorney-General.

108. Judicial department employees

  1. The Judicial Services Commission has the authority to appoint, remove and take disciplinary action against all non-judicial officers employed in the Judiciary.
  2. The Judicial Services Commission has the authority to determine all matters pertaining to the employment of non-judicial officers employed in the Judiciary, including-
    1. the terms and conditions of employment;
    2. the qualification requirements for appointment and the process to be followed for appointment, which must be an open, transparent and competitive selection process based on merit;
    3. the salaries, benefits and allowances payable, in accordance with its budget as approved by Parliament; and
    4. the total establishment or the total number of non-judicial officers that are required to be appointed, in accordance with the budget as approved by Parliament.
  3. The Judicial Services Commission may by written notice delegate its powers and authority under this section to the Chief Registrar.

109. Oath of office

Before taking office, a Judge or Magistrate must take before the President, the oath or affirmation of allegiance and office set out in the Schedule.

110. Term of office

  1. A person who is not a citizen of Fiji and who is appointed to be a Judge in Fiji serves for a period not exceeding 3 years determined in each case by the Judicial Services Commission at the time of appointment, and may be eligible for re-appointment.
  2. Any other appointment as a Judge continues until the Judge reaches retirement age, which is-
    1. for the Chief Justice, President of the Court of Appeal, Judges of the Supreme Court and Justices of Appeal-the age of 75; and
    2. for the Judges of the High Court-the age of 70.
  3. A person who retired as a Judge of the High Court, but has not reached the age of 75, is eligible for appointment as a Judge of the Supreme Court or as a Justice of Appeal.

111. Removal of Chief Justice and President of the Court of Appeal for cause

  1. The Chief Justice or the President of the Court of Appeal 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 the Chief Justice or the President of the Court of Appeal from office must be by the President pursuant to this section.
  3. If the President, acting on the advice of the Prime Minister considers that the question of removing the Chief Justice or the President of the Court of Appeal from office ought to be investigated, then-
    1. the President, acting on the advice of the Prime Minister, shall appoint-
      1. 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
      2. 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;
    2. 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 Chief Justice or the President of the Court of Appeal should be removed from office; and
    3. in deciding whether or not to remove the Chief Justice or the President of the Court of Appeal, the President must act on the advice of the tribunal or medical board, as the case may be.
  4. The President may, on the advice of the Prime Minister, suspend the Chief Justice or the President of the Court of Appeal 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 Chief Justice or the President of the Court of Appeal from office under subsection (4) ceases to have effect if the President determines that the Chief Justice or the President of the Court of Appeal 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.

112. Removal of judicial officers for cause

  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-
    1. the President, acting on the advice of the Judicial Services Commission, shall appoint-
      1. 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
      2. 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;
    2. 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
    3. 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.

113. Remuneration of judicial officers

  1. The salaries and benefits payable to, or in respect of, a judicial officer must not be varied to the disadvantage of that judicial officer, except as part of an overall austerity reduction similarly applicable to all officers of the State.
  2. The salaries and benefits payable to the Chief Justice and the President of the Court of Appeal shall be determined by the President on the advice of the Prime Minister following consultation by the Prime Minister with the Attorney-General.
  3. The salaries and benefits payable to any person appointed as a Judge (other than the Chief Justice and the President of the Court of Appeal), Magistrate, Master of the High Court, the Chief Registrar or other judicial officers appointed by the Judicial Services Commission shall be determined by the Judicial Services Commission, following consultation with the Prime Minister and the Attorney-General.
  4. The remuneration and benefits payable to or in respect of a judicial officer are a charge on the Consolidated Fund.
  5. A judicial officer is protected from civil or criminal action for anything said or done, or omitted to be done, in the performance of a judicial function.

Part B. JUDICIAL AND LEGAL INSTITUTIONS

114. Independent Legal Services Commission

  1. The Independent Legal Services Commission established by the Legal Practitioners Decree 2009 continues in existence.
  2. The Commission shall consist of a Commissioner, who is, or is qualified to be appointed as a Judge.
  3. The Commissioner shall be appointed by the President, on the advice of the Judicial Services Commission following consultation by the Judicial Services Commission with the Attorney-General.
  4. The Commissioner shall be appointed for a term of 3 years and shall be eligible for re-appointment.
  5. 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 Commissioner during any period or during all periods, when the office of the Commissioner is vacant or when the Commissioner is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
  6. The Commissioner 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.
  7. The procedure for removal of the Commissioner from office shall be the same as the procedure for removal of a judicial officer under section 112.
  8. The authority, functions and responsibilities of the Commission shall be prescribed by written law, and a written law may make further provisions for the Commission.
  9. In the performance of his or her functions or the exercise of his or her authority and powers, the Commissioner shall be independent and shall not be subject to the direction or control of any person or authority, except by a court of law or as otherwise prescribed by written law.
  10. The Commissioner shall be entitled to such remuneration as determined by the President acting on the advice of the Judicial Services Commission following consultation by the Judicial Services Commission with the Attorney-General, and any such remuneration must not be varied to their disadvantage, except as part of an overall austerity reduction similarly applicable to all officers of the State.
  11. The Commission may regulate its own procedure and may make such rules and regulations as it deems fit for regulating and facilitating the performance of its functions.
  12. The Commission shall provide regular updates and advice to the Attorney-General on any matter relating to its functions and responsibilities.

115. Fiji Independent Commission Against Corruption

  1. The Fiji Independent Commission Against Corruption established by the Fiji Independent Commission Against Corruption Promulgation 2007 continues in existence.
  2. The Commission shall consist of a Commissioner, Deputy Commissioner and such other officers as may be appointed by law.
  3. The authority, functions and responsibility of the Commission shall be prescribed by written law, and a written law may make further provisions for the Commission.
  4. Without prejudice to subsection (3), the Commission may-
    1. investigate, institute and conduct criminal proceedings;
    2. take over investigations and criminal proceedings that fall under its responsibility and functions as prescribed by law, and which may have been initiated by another person or authority; and
    3. discontinue, at any stage before judgment is delivered, criminal proceedings instituted or conducted by it.
  5. The powers of the Commissioner and the Deputy Commissioner may be exercised by him or her personally, his or her delegate, or through other persons acting on his or her instructions.
  6. In the performance of its functions or the exercise of its authority and powers, the Commission shall be independent and shall not be subject to the direction or control of any person or authority, except by a court of law or as otherwise prescribed by written law.
  7. In exercising its powers and performing its functions and duties, the Commission shall be guided by the standards established under the United Nations Convention Against Corruption.
  8. The Commission may regulate its own procedure and may make such rules and regulations as it deems fit for regulating and facilitating the performance of its functions.
  9. The Commission shall provide regular updates and advice to the Attorney-General on any matter relating to its functions and responsibilities.
  10. The Commissioner and the Deputy Commissioner have the authority to appoint, remove and discipline all staff (including administrative staff) in the Commission.
  11. The Commissioner and the Deputy Commissioner have the authority to determine all matters pertaining to the employment of all staff in the Fiji Independent Commission Against Corruption, including-
    1. the terms and conditions of employment;
    2. the qualification requirements for appointment and the process to be followed for appointment, which must be an open, transparent and competitive selection process based on merit;
    3. the salaries, benefits and allowances payable, in accordance with its budget as approved by Parliament; and
    4. the total establishment or the total number of staff that are required to be appointed, in accordance with the budget as approved by Parliament.
  12. The Commissioner and the Deputy Commissioner shall be entitled to such remuneration as determined by the President acting on the advice of the Judicial Services Commission following consultation by the Judicial Services Commission with the Attorney-General, and any such remuneration must not be varied to their disadvantage, except as part of an overall austerity reduction similarly applicable to all officers of the State.
  13. The salaries, benefits and allowances payable to any person employed in the Commission are a charge on the Consolidated Fund.
  14. Parliament shall ensure that adequate funding and resources are made available to the Commission, to enable it to independently and effectively exercise its powers and perform its functions and duties.

116. Solicitor-General

  1. The office of the Solicitor-General established by the State Services Decree 2009 continues in existence.
  2. The Solicitor-General is responsible for-
    1. providing independent legal advice to Government and to the holder of a public office, on request;
    2. preparing draft laws on the request of Cabinet;
    3. maintaining a publicly accessible register of all written law;
    4. representing the State in court in any legal proceedings to which the State is a party, other than criminal proceedings; and
    5. performing any other functions assigned by this Constitution, any written law, Cabinet or the Attorney-General.
  3. The Solicitor-General, with the permission of the court, may appear as a friend of the court in any civil proceedings to which the State is not a party.
  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.
  11. The Solicitor-General shall have the authority to appoint, remove and institute disciplinary action against all staff (including administrative staff) in the Office of the Attorney-General.
  12. The Solicitor-General has the authority to determine all matters pertaining to the employment of all staff in the Office of the Attorney-General, including-
    1. the terms and conditions of employment;
    2. the qualification requirements for appointment and the process to be followed for appointment, which must be an open, transparent and competitive selection process based on merit;
    3. the salaries, benefits and allowances payable, in accordance with its budget as approved by Parliament; and
    4. the total establishment or the total number of staff that are required to be appointed, in accordance with the budget as approved by Parliament.
  13. The salaries, benefits and allowances payable to any person employed in the Office of the Attorney-General are a charge on the Consolidated Fund.
  14. Any functions assigned to the Solicitor-General may be exercised in person or by subordinate officers acting in accordance with general or special instructions.

117. Director of Public Prosecutions

  1. The office of the Director of Public Prosecutions established under the State Services Decree 2009 continues in existence.
  2. The Director of Public Prosecutions must be a person who is qualified to be appointed as a Judge.
  3. The Director of Public Prosecutions 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.
  4. 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 Director of Public Prosecutions during any period or during all periods, when the office of the Director of Public Prosecutions is vacant or when the Director of Public Prosecutions is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
  5. The Director of Public Prosecutions shall be appointed for a term of 7 years and is eligible for re-appointment, 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 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.
  6. The Director of Public Prosecutions 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.
  7. The procedure for removal of the Director of Public Prosecutions from office shall be the same as the procedure for removal of a judicial officer under section 112.
  8. The Director of Public Prosecutions may-
    1. institute and conduct criminal proceedings;
    2. take over criminal proceedings that have been instituted by another person or authority (except proceedings instituted by the Fiji Independent Commission Against Corruption);
    3. discontinue, at any stage before judgment is delivered, criminal proceedings instituted or conducted by the Director of Public Prosecutions or another person or authority (except proceedings instituted or conducted by the Fiji Independent Commission Against Corruption); and
    4. intervene in proceedings that raise a question of public interest that may affect the conduct of criminal proceedings or criminal investigations.
  9. The powers of the Director of Public Prosecutions may be exercised by the Director personally, or through other persons acting on the Director’s instructions.
  10. In the exercise of the powers conferred under this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority, except by a court of law or as otherwise prescribed by this Constitution or a written law.
  11. The Director of Public Prosecutions may appoint any legal practitioner whether from Fiji or from another country to be a public prosecutor for the purposes of any criminal proceeding.
  12. The Director of Public Prosecutions shall have the authority to appoint, remove and institute disciplinary action against all staff (including administrative staff) in the office of the Director of Public Prosecutions.
  13. The Director of Public Prosecutions has the authority to determine all matters pertaining to the employment of all staff in the office of the Director of Public Prosecutions, including-
    1. the terms and conditions of employment;
    2. the qualification requirements for appointment and the process to be followed for appointment, which must be an open, transparent and competitive selection process based on merit;
    3. the salaries, benefits and allowances payable, in accordance with its budget as approved by Parliament; and
    4. the total establishment or the total number of staff that are required to be appointed, in accordance with the budget as approved by Parliament.
  14. The salaries, benefits and allowances payable to any person employed in the office of the Director of Public Prosecutions are a charge on the Consolidated Fund.
  15. Parliament shall ensure that adequate funding and resources are made available to the office of the Director of Public Prosecutions, to enable it to independently and effectively exercise its powers and perform its functions and duties.

118. Legal Aid Commission

  1. The Legal Aid Commission established by the Legal Aid Act 1996 continues in existence.
  2. The Commission shall provide free legal aid services to those members of the public who cannot afford the services of a legal practitioner, in accordance with such rules and guidelines as may be prescribed by or under a written law.
  3. The authority, functions and responsibility of the Commission shall be prescribed by written law, and a written law may make further provisions for the Commission.
  4. The Commission may regulate its own procedure and may make such rules and regulations as it deems fit for regulating and facilitating the performance of its functions.
  5. In the performance of its functions or the exercise of its authority and powers, the Commission shall be independent and shall not be subject to the direction or control of any person or authority, except by a court of law or as otherwise prescribed by written law.
  6. The Commission shall have the authority to appoint, remove and discipline all staff (including administrative staff) in the Commission.
  7. The Commission has the authority to determine all matters pertaining to the employment of all staff in the Commission, including-
    1. the terms and conditions of employment;
    2. the qualification requirements for appointment and the process to be followed for appointment, which must be an open, transparent and competitive selection process based on merit;
    3. the salaries, benefits and allowances payable, in accordance with its budget as approved by Parliament; and
    4. the total establishment or the total number of staff that are required to be appointed, in accordance with the budget as approved by Parliament.
  8. The salaries, benefits and allowances payable to any person employed in the Commission are a charge on the Consolidated Fund.
  9. Parliament shall ensure that adequate funding and resources are made available to the Commission, to enable it to independently and effectively exercise its powers and perform its functions and duties.
  10. The Commission shall have the control of its own budget and finances, as approved by Parliament.
  11. The Commission shall provide regular updates and advice to the Attorney-General on any matter relating to its functions and responsibilities.

119. Mercy Commission

  1. The Commission on the Prerogative of Mercy established under the State Services Decree 2009 continues in existence as the Mercy Commission.
  2. The Commission consists of-
    1. the Attorney-General who is to be its chairperson; and
    2. 4 other members appointed by the President, acting on the advice of the Judicial Services Commission, following consultation by it with the Attorney-General.
  3. On the petition of any convicted person, the Commission may recommend that the President exercise a power of mercy by-
    1. granting a free or conditional pardon to a person convicted of an offence;
    2. postponing the carrying out of a punishment, either for a specific or indeterminate period; or
    3. remitting all or a part of a punishment.
  4. The Commission may dismiss a petition that it reasonably considers to be frivolous, vexatious or entirely without merit, but otherwise-
    1. must consider a report on the case prepared by-
      1. the Judge who presided at the trial; or
      2. the Chief Justice, if a report cannot be obtained from the presiding Judge;
    2. must consider any other information derived from the record of the case or elsewhere that is available to the Commission; and
    3. may consider the views of the victims of the offence.
  5. The President must act in accordance with the recommendations of the Commission.
  6. The members of the Commission referred to in subsection (2)(b) shall be appointed for a term of 3 years and shall be eligible for re-appointment.
  7. 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 a member of the Commission during any period or during all periods, when there is a vacancy in the membership of the Commission or when a member is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
  8. The members of the Commission referred to in subsection (2)(b) may be removed from office for inability to perform the functions of office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and may not otherwise be removed.
  9. The procedure for removal of the members of the Commission referred to in subsection (2)(b) from office shall be the same as the procedure for removal of a judicial officer under section 112.
  10. In the performance of its functions or the exercise of its authority and powers, the Commission shall be independent and shall not be subject to the direction or control of any person or authority, except by a court of law or as otherwise prescribed by written law.
  11. The members of the Commission referred to in subsection (2)(b) shall be entitled to such remuneration as determined by the President acting on the advice of the Judicial Services Commission following consultation by the Judicial Services Commission with the Attorney-General, and any such remuneration must not be varied to their disadvantage, except as part of an overall austerity reduction similarly applicable to all officers of the State.
  12. The Commission may regulate its own procedure and may make such rules and regulations as it deems fit for regulating and facilitating the performance of its functions.
  13. The quorum for the meetings of the Commission shall consist of the chairperson and 2 other members.
  14. The Commission shall provide regular updates and advice to Parliament on any matter relating to its functions and responsibilities.

120. Public Service Disciplinary Tribunal

  1. This section establishes the Public Service Disciplinary Tribunal.
  2. The Tribunal shall consist of a chairperson and 2 other members, appointed by the President, on the advice of the Judicial Services Commission following consultation by it with the Attorney-General.
  3. The chairperson of the Tribunal must be a person who is, or is qualified to be appointed as a Judge.
  4. The members of the Tribunal shall be appointed for a term of 3 years and shall be eligible for re-appointment.
  5. 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 a member of the Tribunal during any period or during all periods, when there is a vacancy in the membership of the Tribunal or when a member is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
  6. The members of the Tribunal may be removed from office for inability to perform the functions of office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and may not otherwise be removed.
  7. The procedure for removal of the members of the Tribunal from office shall be the same as the procedure for removal of a judicial officer under section 112.
  8. The authority, functions and responsibilities of the Tribunal shall be prescribed by written law, and a written law may make further provisions for the Tribunal.
  9. In addition to such other functions as may be conferred by written law, the Tribunal shall have the function of hearing and determining disciplinary action instituted by-
    1. the Public Service Commission against any permanent secretary; or
    2. a permanent secretary, the Solicitor-General, the Director of Public Prosecutions or the Secretary-General to Parliament against any person employed in their respective ministries or offices.
  10. Any decision of the Tribunal shall be subject to review by the High Court.
  11. A written law may make further provision for the Tribunal, including rules and procedures for the hearings before the Tribunal.
  12. In the performance of its functions or the exercise of its authority and powers, the Tribunal shall be independent and shall not be subject to the direction or control of any person or authority, except by a court of law or as otherwise prescribed by written law.
  13. The members of the Tribunal shall be entitled to such remuneration as determined by the President acting on the advice of the Judicial Services Commission following consultation by the Judicial Services Commission with the Attorney-General, and any such remuneration must not be varied to their disadvantage, except as part of an overall austerity reduction similarly applicable to all officers of the State.
  14. The Tribunal may regulate its own procedure and may make such rules and regulations as it deems fit for regulating and facilitating the performance of its functions.
  15. The Tribunal shall provide regular updates and advice to Parliament on any matter relating to its functions and responsibilities.
  16. The salaries, benefits and allowances payable to the members of the Tribunal are a charge on the Consolidated Fund.
  17. Parliament shall ensure that adequate funding and resources are made available to the Tribunal, to enable it to independently and effectively exercise its powers and perform its functions and duties.

121. Accountability and Transparency Commission

  1. This section establishes the Accountability and Transparency Commission.
  2. The Commission shall consist of a chairperson and 2 other members appointed by the President, on the advice of the Judicial Services Commission following consultation by it with the Attorney-General.
  3. The chairperson of the Commission must be a person who is, or is qualified to be appointed as a Judge.
  4. The members of the Commission shall be appointed for a term of 3 years and shall be eligible for re-appointment.
  5. 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 a member of the Commission during any period or during all periods, when there is a vacancy in the membership of the Commission or when a member is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
  6. The members of the Commission may be removed from office for inability to perform the functions of office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and may not otherwise be removed.
  7. The procedure for removal of the members of the Commission from office shall be the same as the procedure for removal of a judicial officer under section 112.
  8. The authority, functions and responsibilities of the Commission shall be prescribed by written law, and a written law may make further provisions for the Commission.
  9. A written law shall provide the Commission with the jurisdiction, authority and powers to receive and investigate complaints against permanent secretaries and all persons holding a public office.
  10. In the performance of its functions or the exercise of its authority and powers, the Commission shall be independent and shall not be subject to the direction or control of any person or authority, except by a court of law or as otherwise prescribed by written law.
  11. The members of the Commission shall be entitled to such remuneration as determined by the President acting on the advice of the Judicial Services Commission following consultation by the Judicial Services Commission with the Attorney-General, and any such remuneration must not be varied to their disadvantage, except as part of an overall austerity reduction similarly applicable to all officers of the State.
  12. The Commission may regulate its own procedure and may make such rules and regulations as it deems fit for regulating and facilitating the performance of its functions.
  13. The Commission shall provide regular updates and advice to Parliament on any matter relating to its functions and responsibilities.
  14. The Commission shall have the authority to appoint, remove and discipline all staff (including administrative staff) in the Commission.
  15. The Commission has the authority to determine all matters pertaining to the employment of all staff in the Commission, including-
    1. the terms and conditions of employment;
    2. the qualification requirements for appointment and the process to be followed for appointment, which must be an open, transparent and competitive selection process based on merit;
    3. the salaries, benefits and allowances payable, in accordance with its budget as approved by Parliament; and
    4. the total establishment or the total number of staff that are required to be appointed, in accordance with the budget as approved by Parliament.
  16. The salaries, benefits and allowances payable to any person employed in the Commission are a charge on the Consolidated Fund.
  17. Parliament shall ensure that adequate funding and resources are made available to the Commission, to enable it to independently and effectively exercise its powers and perform its functions and duties.
  18. The Commission shall have control of its own budget and finances, as approved by Parliament.

122. Existing appointments

Nothing in this Chapter affects the continuance of a person in an office for which this Chapter makes provision for, under an appointment made before the commencement of this Constitution.

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