THE structural weaknesses in the separation of powers under Fiji’s 2013 Constitution was highlighted at yesterday’s 26th A-G’s Conference at the Sheraton Fiji Resort and Spa in Nadi.
Speaking at the annual event, constitutional expert Jon Apted discussed how critical mechanisms that should ensure judicial and public service independence under previous constitutions have been diluted.
“Under our previous constitutions, there was separation between the executive, legislature, and judiciary,” he said.
“For instance, the Public Service Commission (PSC) used to independently appoint civil servants, providing them with career security irrespective of political changes. This structure ensured an apolitical and professional civil service.”
In contrast, Mr Apted pointed out, the 2013 Constitution centralises significant power in the hands of political leaders.
“The Public Service Commission now only appoints permanent secretaries, who, in turn, appoint civil servants. This creates a lack of guaranteed independence for ministry staff, as their employment is contingent on decisions by politically influenced permanent secretaries,” he said.
Mr Apted also expressed concern about judicial independence.
“The Judicial Services Commission (JSC), which oversees key judicial appointments, appears independent but isn’t truly so. Its members include the Chief Justice, the President of the Court of Appeal, and others appointed on the Chief Justice’s recommendation. However, the Chief Justice and the President of the Court of Appeal are appointed by the Prime Minister after consulting the Attorney-General.
“This means the executive and legislature have significant influence over the judiciary, which undermines the principle of separation of powers.
“The COC is dominated by political figures, including the Prime Minister, Attorney-General, and their nominees. Although it is labelled a ‘commission,’ its decisions are inherently political. As a result, the perception of independence in appointments is undermined,” Mr Apted explained.
“We need to revisit these structural issues in the interests of democracy, limited power, and good governance. However, achieving reform is a challenge due to the Constitution’s stringent amendment provisions.”
Meanwhile Mr Apted also warned against idealising past constitutions.
“While the 1997 constitution had stronger safeguards, it wasn’t without flaws, as evidenced by the political crises of 2000 and 2006,” he said.
