A FORMER advisor to the Prime Minister’s office and university lecturer Jioji Kotobalavu says the 2013 Constitution gives PM Sitiveni Rabuka the powers to be the “employer of all ministers”.
And he said SODELPA could find themselves disappointed if they were to seek a judicial review of Mr Rabuka’s decision.
Weighing in on the impasse between members of the SODELPA management board and Deputy Prime Minister Viliame Gavoka, Mr Kotobalavu said the Constitution was also clear on the separation of powers between government and the Courts – a route, he says, the aggrieved political party could take in their bid to have former Education Minister Aseri Radrodro reinstated.
“Under section 95 of Fiji’s 2013 Constitution, the Prime Minister is the sole appointing authority for all ministers,” said Mr Kotobalavu.
“The only requirement he must comply with is that a minister must be a member of Parliament.
“In a Coalition Government such as the Peoples Coalition Government we currently have, the constituent political parties may submit names of their MPs for consideration by the Prime Minister.
“However, all actual appointments of ministers and the assignment of their respective portfolio responsibilities are solely at the discretion of the Prime Minister.
“Under section 95-(3) of the 2013 Constitution, the Prime Minister is also bestowed with full and sole authority to remove a minister.
“By these constitutional powers, the Prime Minister can be said to be the employer of all ministers.”
He said under section 30-(4) of the Employment Relations Act 2015, an employer may summarily dismiss a worker for lawful cause, and under section 33-(1) a lawful ground for summary dismissal is where a worker has engaged in gross misconduct in the workplace.
“The courts and employment tribunals have interpreted ‘gross misconduct’ to include instances where a worker has intentionally failed or refused to comply with lawful directives or requests by the employer.
“The Prime Minister’s removal of MP Aseri Radrodro as a minister and the appointment of MP Viliame Gavoka to replace him have all been done lawfully and legitimately under powers conferred upon him by the 2013 Constitution.”
Mr Kotobalavu said SODELPA could find themselves disappointed if they were to seek a judicial review of Mr Rabuka’s decision.
“The SODELPA Party can seek a judicial review of the legality of the Prime Minister’s decision.
“However, they will find to their disappointment that this is not available to them.
“This is because the courts will most likely invoke the constitutional doctrine of ‘non-justiciability’. Under the Constitution’s scheme of separation of powers, the courts, the executive government, and Parliament have mutually agreed not to intervene in each other’s exercise of their respective constitutional powers.”
He said this is out of respect for each other’s authority and the accompanying principle that they are always to conduct themselves on the basis of mutual confidence and trust.
