The Sharvada Nand Sharma judgment
Court finds the Judicial Services Commission breached the law
THE High Court of Fiji recently awarded former Solicitor-General, Sharvada Nand Sharma more than $2.2million after finding that his termination on 10 November 2021 was illegal and contrary to law.
The Judicial Services Commission (JSC), chaired by the Chief Justice, appoints and supervises the conduct of judges and other senior legal officers, including the Solicitor-General. It was the JSC, chaired by former Chief Justice Kamal Kumar, that advised the President of Fiji to terminate Mr Sharma’s appointment in November 2021.
The Solicitor General is responsible for providing ‘independent legal advice to the Government’. In order to secure his independence, the procedure for his removal from office is the same as for a judge.
In his January 27, 2024 ruling, Justice Deepthi Amaratunga said a judicial officer could only be removed in two ways – through the appointment of a medical board or through a disciplinary tribunal, whose findings are then handed to President with the Tribunal’s advice on whether or not the officer should be removed.
Justice Amaratunga made clear that the JSC had no power to bypass the appointment of a tribunal or medical board and simply advise the President on an officer’s removal.
Quoting from a precedent case concerning a suspended judge in Guyana, Justice Amaratunga noted that when an officer such as Mr Sharma was suspended from office, he lost his right to work in his chosen career and suffered the stigma of suspension from duties.
“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.”
Termination advice decision
Justice Amaratunga ruled that under section 112 (3) (c) of the Constitution, there was no power conferred on the JSC to remove a judicial officer or to advise the President to remove officers such as Mr Sharma from his office. The judge ruled that removal of judicial officer from his post by the President, must be on the 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 an exclusive power and cannot be exercised by the Second Respondent (the JSC).
“This is to prevent any bias or conflict, and also allowing fair procedure for removal of judicial officers,” said the judge.
Justice Amaratunga ruled: •
only the tribunal appointed for investigation of the alleged misbehaviour or a medical board could advise the President regarding removal of judicial officers including Mr Sharma
there was no provision in the Constitution that allowed the
•
JSC to advise on removal of Mr Sharma without appointment of a tribunal or medical board
despite this the JSC had advised the President to dismiss Mr Sharma through a 10 November 2021, which was contrary to law and ultra vires (‘beyond powers’)
the JSC memo, which said that the allegations against Mr Sharma were of a “factual nature and do not warrant an investigation through the appointment
•
of a Tribunal” was ultra vires
• irrespective of the suspension of the officer, which is discretionary, the JSC must appoint a tribunal or medical board to investigate the alleged misconduct or medical condition before removal on grounds of misconduct or inability to perform duties
• there is no power with the Judicial Services Commission 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 the President for removal of judicial officer.
Justice Amaratunga said Section 112 (3) (b) and (c) of the Constitution empowers only a tribunal to inquire into alleged misbehaviour and furnish a written report of the facts to the President and recommend whether a removal is warranted.
He said the JSC had no power to advise on removal pending appointment of tribunal whether the allegations are ‘factual ‘or otherwise.
“It is not clear when (the JSC) sought ‘independent legal advice’ and whether such decision was ever communicated and considered by the members of (the JSC), he said. “Even if there was a decision to obtain ‘independent legal advice’ it is not clear whether said legal advice was communicated or considered by the (JSC) members. It is incomprehensible that such a legal advice was relied on by (the JSC) if it deliberated on it.”
This power of the tribunal or medical board, is an exclusive power and cannot be exercised by the Second Respondent (the JSC). This is to prevent any bias or conflict, and also allowing fair procedure for removal of judicial officers
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Justice Deepthi Amaratunga