Former civil servant Jioji Kotobalavu, who served under five prime ministers in the Prime Minister’s Office, says all civil servants must know the law in order to be protected and fully informed of the rights of anyone adversely affected by their decisions.
Mr Kotobalavu said one must know the source of their power vested in their post, so that decisions are made within the boundaries of their post.
“Now and then, you read the papers where a permanent secretary has been ruled to have acted unlawfully and illegally in a decision he had taken,” Mr Kotobalavu said.
“Because they don’t know. They should have known the law.
“You must know the source of your power, constitutional power and executive power.
“At the end of it all, you become a very good decision-maker because not only will you be able to exercise your power correctly in terms of the law, you will also be fully informed of the rights of anyone affected by your decisions, and you are then protected from any action against you, either through a judicial review or an employment grievance.”
Mr Kotobalavu’s experience
Mr Kotobalavu spent more than 32 years in the Civil Service. He left on December 6, 2006, when members of the Public Service Commission (PSC) and almost all CEOs were unilaterally removed by the military.
He said the military did this as part of its coup against the democratically-led multi-party government led by then prime minister, the late Laisenia Qarase.
“Mr Qarase challenged the legality of his government’s removal in the courts, and eventually won his case,” he said.
“Instead of reinstating the Qarase government, the judges advised that the best way forward was for a general election to be held to allow the country to make a fresh start as a parliamentary democracy.
“As for the chief executive officers, who were removed from their civil service positions, some of us decided to apply to the High Court for a judicial review of the military’s actions against us, and to seek compensation for breach of our contracts of service, but then the military regime intervened through their 2013 Constitution and granted themselves State immunity for all the unlawful actions they had taken in 2006 and thereafter.
“My other CEO colleagues, who were also victims of the power grab by the military, included Anare Jale, Lesi Korovavala, Anasa Vocea, Paula Uluinaceva, Apisalome Tudreu and Isireli Koyamaibole and Nainendra Nand, who was serving as solicitor-general, was also summarily dismissed by the military.
They were all outstanding civil servants.
Not a single one of them had broken any law or been found by the military regime to have engaged in corrupt dealings.
“As the CEO of their respective ministries and departments, they were serving as leaders in the Civil Service with high standards of professionalism, integrity and probity.
“I shall always remember them with special affection.”
Comments on the civil service allocation by the DPM and Finance Minister Biman Prasad
Mr Kotobalavu said he was interested in what Prof Prasad said about the Civil Service because it reflected the Government’s assessment of the service’s efficiency and effectiveness in performing its duties and responsibilities.
“Mr Prasad acknowledged the crucial role of the civil service in providing institutional and administrative support to enable the elected executive government in implementing its mandate to govern the country, and to be fully accountable for this, both to Parliament and to the people directly,” he said.
“He explained the various Civil Service reforms which the People’s Coalition Government has introduced which included the removal of five-year contracts for the chief executive officers of ministries and its replacement by the restoration of “permanent secretary” employment tenures, the extension of the retirement age to 60 years, and an additional two years for scarce skill retention.
“He also highlighted that the Civil Service has been adversely affected by biased promotion practices, lack of investment in training, capacity-building and poor succession planning.
“These then are some of the challenges that lie ahead for the Ministry of Public Service and the PSC to improve on.
“To improve not only the efficiency effectiveness of job performance, but morale as well.”
The Rule of Law and Administrative Justice in decision making
Mr Kotobalavu said the rule of law and administrative justice were the most important message he was portraying for civil servants who were rising in the civil service hierarchy, particularly for those who were not lawyers.
“Having served as PS for Foreign Affairs to our first PM, Ratu Sir Kamisese Mara, and as PS in the Prime Minister’s office under Sitiveni Rabuka from 1992 to 1999, PM Mahendra Chaudhry for four months in 1999, and as CEO to PM Laisenia Qarase from 1991 to 2006, I thought I knew everything about how to be a super effective manager in the Civil Service,” he said.
“That is until I studied law after leaving the Civil Service and graduating with a Bachelor of Law degree.
“I then realised that had I studied law, and in particular public law, comprising a study of Fiji’s Constitution, Administrative Law and Employment Law, and, in addition, Disputes Resolution and Alternative Disputes Resolution, I would have been an even more effective decision-maker as a permanent secretary or CEO.
“This is because a reasonable knowledge of these laws would enable a PS or the head of a department to exercise his or her constitutional and statutory powers of decision-making, both according to law and the requirements of administrative justice.
“The Constitution tells you your rights as a decision maker, in this case, the rights of the PS when making decisions.
“It also sets out the rights of the civil servants who are affected by the decisions of the PS.
“If you are not happy by the decision or discipline of a PS, you can apply to the Civil Service Tribunal.
“If you are still not satisfied with the ruling of the tribunal, you can apply for a judicial review to the High Court as administrative law.
“Your rights are also protected by the Employment Law set out in the Employment Relations Act 2015.
“The employer has the right to terminate your contract or to summarily dismiss you, provided you followed certain procedures laid out in the law.
“But the legislation, the Employment Relations Act, also sets out your right as a worker.
“If you feel that the action by the employer against you tantamount to a dismissal, the law provides for you to file an employment grievance through the Ministry of Labour, to the Employment Tribunal and to the High Court.
“This is very important to know. Unless you are a lawyer, you will not be aware of this.”
Incentivising and rewarding high performance in the civil service
Mr Kotobalavu said in the years following independence, there were two ways used by the PSC and the PM’s office to recognise and reward high standards of work performance by senior managers, and by those civil servants such as teachers, medical doctors and nurses, social welfare officers, and district officers and commissioners of divisions, who were engaged every day in serving the people directly.
“This was through the use of the State honours system,” he said.
“Honours through the Order of Fiji are bestowed by the President of the Republic of Fiji.
“In those early years, the annual honours list recommendations were submitted to the Office of the President by the PSC, the Ministry of Home Affairs and the Judiciary.
“Recommendations for the highest State honour were the prerogative of the Prime Minister.
“This approach worked very well. It was fair. All deserving public service officers and members of the public from all our different communities were recognised and rewarded.
“Unfortunately, the current approach of submitting recommendations to the President by a single source; a statutory committee, based in the Office of the President, has been, in my view, not entirely satisfactory.
“This is largely due to the approach it has adopted. It has relied mainly on calling for applications through the media.
“This shows a lack of understanding of, for example, the customs and culture of the indigenous iTaukei and Rotumans.
“In their hierarchical social structures, they wait in dignified silence to be recognised and called.
“They don’t push themselves forward and openly compete for favours.
“The Ministry of Public Service should undertake an analysis of the award of State honours over the past 10 years, and make recommendations on improving its efficacy in serving everyone and every community in Fiji, including civil servants and all public service agencies as a whole, based strictly on merit.
“The second and last issue I want to raise for general discussion is the use of Fiji’s diplomatic service, both to recognise and reward high performers in the Civil Service before they retire, and to provide an opportunity for identified good and effective performers in the Civil Service to broaden their knowledge and experience, and to prepare them for higher responsibilities.
“Section 128-(1) of the 2013 Constitution confers upon the PM the power to appoint Fiji’s ambassadors to other states, and diplomatic representatives to international organisations.
“In the past, this opportunity was used both to recognise and reward high performing civil servants before they retire, and to broaden the knowledge and experience of younger officers who have been identified as having the potential to take on higher responsibilities in the Civil Service.
“This is one effective way for the PSC and the Ministry of Public Service to respond to the call by the DPM and Minister of Finance for a pro-active program to prepare for orderly progression and succession in leadership in the Civil Service.”
