2013 Constitution Not Clear on Doctrine of Separation of Powers

Certain provisions of the 2013 Constitution make it difficult for any Government to strictly comply with the doctrine of the separation of powers.

In theory our democracy is modelled on the British Westminster system which upholds the division and independence of the three branches of the State’s Government – the Legislature (Parliament), Executive (Civil Service) and the Judiciary (Courts).

It can be contrasted with the fusion of powers in a parliamentary system, where the Executive and the Legislature (and sometimes parts of the Judiciary) are unified.

In practice, we know the branches’ functions overlap, particularly between the Legislature and the Executive.

In view of the latest debate on the issue let’s look at what the Constitution contains. It fuelled comments by prominent lawyer Jon Apted at the recent Fiji Law Society convention, statements by the former Attorney-General and FijiFirst general secretary Aiyaz Sayed-Khaiyum and his successor Siromi Turaga. The Constitution is clear on the roles of the ministers, permanent secretaries and the Public Service Commission. The overlapping of functions violates the separation of power.

Section 127 the 2013 Constitution says:

1. There is established within each ministry the office of a permanent secretary, which is an office in the public service. Each ministry is to be under the administration of a permanent secretary, and any department of Government that is not part of any ministry shall be under the administration of the permanent secretary responsible for the Office of the Prime Minister.

The permanent secretary of a ministry is responsible to the Minister concerned for the efficient, effective and economical management of the ministry or any department under the Minister.

The Public Service Commission, with the agreement of the Prime Minister, may at any time re-assign one or more permanent secretaries amongst the various ministries of the State.

Comment: It is very hard to draw the line between the Executive (PSC) and the Legislature (Prime

Minister) when the Constitution allows that crossover.

Secondly, the Government-dominated Constitutional Offices Commission (COC) recommends the PSC members who are appointed by the President. Any Government will pick people who subscribe to their policies for ease of doing business:

5. A permanent secretary may resign from office by giving written notice to the Public Service Commission. A permanent secretary shall be entitled to such remuneration as determined by the Public Service Commission following the agreement of the Prime Minister, 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.

Comment: The Prime Minister is once again involved. This time it is to do with determining permanent secretaries’ pay.

7. The permanent secretary of each ministry shall have the authority to appoint, remove and institute disciplinary action against all staff of the ministry, with the agreement of the Minister responsible for the ministry.

The permanent secretary of each ministry, with the agreement of the Minister responsible for the ministry, has the authority to determine all matters pertaining to the employment of all staff in the ministry, including— the terms and conditions of employment;

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; the salaries, benefits and allowances payable, in accordance with its budget as approved by Parliament; and the total establishment or the total number of staff that are required to be appointed, in accordance with the budget as approved by Parliament. Comment: There is enough clear evidence here that the Constitution has limitations on the separation of powers. Therefore it is difficult for anyone to say that the minister or the civil service must observe strict compliance with this concept Maybe in theory, but not in practice. Last year, the permanent secretary for Education got exposed after she terminated a teacher’s contract for administering corporal punishment. She apparently made the decision without consulting her minister. The teacher challenged the action claiming it was unlawful because the minister had not been consulted and agreed.

The separation of power is also blurred when one looks at the Employment Act.

The Act has provisions for settlements outside of court when the matter is still before the court.