There was no provision in the Constitution for the former Solicitor-General, Sharvada Sharma, to be terminated in the manner that he was, says constitutional lawyer Jon Apted.
He said this while making his submissions during the hearing of former Solicitor-General Sharvada Sharma’s leave application for Judicial Review of his termination in November 2021.
The matter was called in the High Court in Suva before judge Justice Deepthi Amaratunga.
Mr Apted said the Constitution said that the removal of the S-G for misconduct had to follow the constitutional procedure that applied to the removal of a judge and that a judge can only be removed from office under section 112 of the Constitution, when the President is advised to do so, following the findings of a qualified tribunal appointed on the advice of the Judicial and Legal Services Commission.
He said the former president, Jioji Konrote, in his termination letter to Mr Sharma said, “In accordance with 116 (9) and 112 of the Fijian Constitution, following the advice of the JLSC, I am in agreement that the allegations comprised in the complaint lodged against you are of a factual nature and do not warrant an investigation through the appointment of a tribunal”.
“The president has no authority to agree. He follows advice,” he said.
He also said the JLSC had no authority to decide that the complaints were of a “factual” nature and didn’t warrant the appointment of a tribunal because they were “factual”.
“The JSC was entitled to decide that the allegations didn’t warrant the appointment of the tribunal, but if it decided that, the case was closed.”
He said if the JLSC decided not to advise the president to appoint a tribunal, the JSC could not go on to advise the president to do anything because he only becomes involved if the JLSC decides the matter should be referred to a tribunal.
“Because otherwise, how can the system to ensure independence of the judiciary work if the executive can just bypass it every which way?”
Mr Apted submitted that the requirement to refer the question to the tribunal was compulsory.
“That’s how the independence of the judiciary is preserved because there is no provision that allows this to happen.”
