Chapter 7 Executive Government
Part 1 Executive AuthoritySection 85: President
This section establishes the office of the President. The executive authority of the State is vested in the President.Section 86: Head of State
The President is the Head of State and symbolizes the unity of the State.Section 87: Commander-in-Chief
The President is the Commander-in-Chief of the military forces.Section 88: Vice-President
1. This section establishes the office of Vice-President.
2. The Vice-President performs the functions of President if the President is absent from duty or from Fiji or is, for any other reason, unable to perform the functions of his or her office.
3. If neither the President nor the Vice-President is available to perform a function of the President, it may be performed by the Speaker of the House of Representatives.
4. If the office of President becomes vacant, a new President and Vice-President must be appointed in accordance with Part 2, but the incumbent Vice-President has the authority under this section to perform the functions of President for a period of no longer than 3 months, pending the filling of the vacancy.
Part 2 President and Vice-PresidentSection 89: Qualifications for President and Vice-President
1. Candidates for the offices of President and Vice-President must be citizens who have had a distinguished career in any aspect of national or international life, whether in the public or private sectors, and must have the qualifications required of candidates for election to the House of Representatives.
2. A person holding a public office is not required to resign from that office before accepting nomination for President or Vice-President, but the appointment of the person as President or Vice-President has the effect of terminating his or her service in that office.
3. Nothing in this section prevents the President from holding a public office, by virtue of his or her appointment as President, under any legislation in force at the commencement of this Constitution.Section 90: Appointment of President and Vice-President
The President and Vice-President are appointed by the Bose Levu Vakaturaga after consultation by the Bose Levu Vakaturaga with the Prime Minister.Section 91: Term of Office
1. The President holds office for 5 years, is eligible for re-appointment for one further term of 5 years but is not eligible for re-appointment after that.
2. The Vice-President holds office for 5 years, is eligible for re-appointment for one further term of 5 years but is not eligible for re-appointment after that.Section 92: Vacancy in office of Vice-President
1. If the office of Vice-President becomes vacant, the President nominates for Vice-President another person who is eligible to become Vice-President and that person becomes Vice-President if the nomination is supported by the Bose Levu Vakaturaga.
2. A person appointed as Vice-President pursuant to subsection (1) serves as Vice President for the remainder of the term of office of his or her predecessor.Section 93: Removal from office of President or Vice-President
1. The President or Vice-President may be removed from office for inability to perform the functions of office (whether arising from infirmity of body or mind or any other cause) or for misbehavior, and may not otherwise be removed.
2. Removal of the President or Vice-President from office must be by the Bose Levu Vakaturaga pursuant to this section.
3. If the Prime Minister considers that the question of removing the President or Vice-President from office ought to be investigated, then:
- the Prime Minister requests the Chief Justice to establish:
- in a case of alleged misbehavior--a tribunal consisting of a chairperson and 2 other members each of whom is, or is eligible to be, a judge; and
- in a case of alleged inability to perform the functions of office--a medical board, consisting of a chairperson and two other members, each of whom is a qualified medical practitioner and notifies the President or Vice-President, as the case may be, of the request;
- the Chief Justice, who must act on the request, establishes the tribunal or medical board, as the case may be;
- the tribunal or medical board enquirers into the matter and furnishes a written report to the Chief Justice;
- the Chief Justice refers the report to the Prime Minister together with, in the case of a report on alleged misbehavior, written recommendations of the Chief Justice;
- the Prime Minister considers the report and any recommendations and:
- if he or she considers that the matter should be considered by the Bose Levu Vakaturaga--he or she refers the report and any recommendations to the Bose Levu Vakaturaga, with a request that it consider the matter, and notifies the President or Vice-President, as the case maybe, accordingly; or
- if he or she considers that the matter should not be considered by the Bose Levu Vakaturaga--he or she notifies the President or Vice- President, as the case may be, accordingly;
- upon receipt of a request from the Prime Minister under sub paragraph (e)(i), the Bose Levu Vakaturaga convenes to consider whether the President or Vice-President, as the case may be, should be removed from office.
4. The President or Vice-President is taken to be unable to perform the functions of his or her office during the period starting on the day on which the President or Vice President received notification under paragraph (3)(a) and ending on:
Section 94: Oath of office by President and Vice-President
- if the matter is not referred to the Bose Levu Vakaturaga--the day on which the President or Vice-President receives notification under sub paragraph (3)(e)(iii); or
- if the matter is referred to the Bose Levu Vakaturaga--the day on which the matter is finally dealt with by the Bose Levu Vakaturaga.
Before taking office, the President and Vice-President must make before the Chief Justice the Oath of Allegiance and the oath set out in Part B of the Schedule relating to their respective offices.Section 95: Legislation relating to President or Vice-President
Subject to this Constitution, the Parliament may make laws relating to the appointment, the terms and conditions of office, including pension entitlements, and the procedures for removal, of the President and Vice-President.
Part 3 Cabinet GovernmentSection 96: President acts on advice
1. Subject to subsection (2), in the exercise of his or her powers and executive authority, the President acts only on the advice of the Cabinet or a Minister or of some other body or authority prescribed by this Constitution for a particular purpose as the body or authority on whose advice the President acts in that case.
2. This Constitution prescribes the circumstances in which the President may act in his or her own judgment.Section 97: Responsible government
Governments must have the confidence of the House of Representatives.Section 98: Appointment of Prime Minister
The President, acting in his or her own judgment, appoints as Prime Minister the member of the House of Representatives who, in the President's opinion, can form a government that has the confidence of the House of Representatives.Section 99: Appointment of other Ministers
1. The President appoints and dismisses other Ministers on the advice of the Prime Minister.
2. To be eligible for appointment, a Minister must be a member of the House of Representatives or the Senate.
3. The Prime Minister must establish a multi-party Cabinet in the way set out in this section comprising such number of Ministers as he or she determines.
4. Subject to this section, the composition of the Cabinet should, as far as possible, fairly represent the parties represented in the House of Representatives.
5. In establishing the Cabinet, the Prime Minister must invite all parties whose membership in the House of Representatives comprises at least 10% of the total membership of the House to be represented in the Cabinet in proportion to their numbers in the House.
6. If the Prime Minister selects for appointment to the Cabinet a person from a party whose membership in the House of Representatives is less than 10% of the total membership of the House, that selection is deemed, for the purposes of this section, to be a selection of a person from the Prime Minister's own party.
7. If a party declines an invitation from the Prime Minister to be represented in the Cabinet, the Prime Minister must allocate the Cabinet positions to which that party would have been entitled amongst the other parties (including the Prime Minister's party) in proportion, as far as possible, to their respective entitlements under subsection (5).
8. If all parties (apart from the Prime Minister's party and the party (if any) with which it is in coalition) decline an invitation from the Prime Minister to be represented in the Cabinet , the Prime Minister may look to his or her own party or coalition of parties to fill the places in the Cabinet.
9. In selecting persons from parties other than his or her own party for appointment as Ministers, the Prime Minister must consult with the leaders of those parties.Section 100: Attorney-General
1. The Minister appointed as the Attorney-General is the chief legal adviser to the Government.
2. A person is not qualified to be appointed as Attorney-General unless he or she is qualified to practice as a barrister and solicitor in Fiji.
3. The Attorney-General may attend and take part in the proceedings of either House of the Parliament but may only vote in the House of which he or she is a member and is not to be regarded as a member of the other House except for the purpose of enjoying the privileges and immunities of a member of that other House.
4. If the person holding the office of Attorney-General is, for any reason, unable to perform the functions of that office:
Section 101: Oath of office by Minister
- the President may appoint another Minister, or a member of either House of the Parliament, who is legally qualified to act as Attorney-General; and
- the Solicitor-General may perform all the duties and exercise all the powers imposed or conferred on the Attorney-General by virtue of the Attorney-General's membership of a body created by a written law.
Before taking office, a Minister must make, before the President, the Oath of Allegiance and the oath of office set out in Part C of the Schedule.Section 102: Responsibility of Ministers and Cabinet
1. The Cabinet is collectively responsible to the House of Representatives for the governance of the State.
2. A Minister is individually responsible to the House of Representatives for all things done by or under the authority of the Minister in the execution of his or her office.Section 103: Functions of Ministers
1. Ministers (including the Prime Minister) have such tides, portfolios and responsibilities as the Prime Minister determines from time to time.
2. On the advice of the Prime Minister, the President, by direction in writing, assigns to the Prime Minister and to each other Minister responsibility for the conduct of a specified part of the business of the Government, including responsibility for general direction and control over a branch or branches of the public service or over a disciplined Force, as the case may be.
3. The Prime Minister has responsibility for any part of the business of the Government that is not specifically assigned under subsection (2).
4. Nothing in this section limits provisions in this Constitution conferring on specified persons or bodies freedom from direction or control by any person or authority in relation to the performance of specified functions.Section 104: President to be kept informed
The Prime Minister must keep the President generally informed about issues relating to the governance of Fiji and must supply the President with such information as the President requests concerning matters relating to the governance of Fiji.Section 105: Vacation of office of Minister
1. Subject to subsection (2). the appointment of a Minister terminates if;
- the Prime Minister resigns in the circumstances set out in section 107;
- the Prime Minister is dismissed;
- the Minister tenders his or her resignation to the President; or
- the Minister ceases to be a member of the Parliament.
2. If a Minister ceases to be a member of the Parliament because of the expiry or dissolution of the House of Representatives, he or she continues in office as a Minister until the next appointment of a Prime Minister.Section 106: Acting Ministers
1. The President may appoint a Minister to act in the office of another Minister (including the Prime Minister) during any period, or during all periods, when the other Minister is absent from duty or from Fiji or is, for any other reason, unable to perform the functions of office.
2. Notification of the appointment of an Acting Minister must be published in the Gazette.Section 107: Defeat of Government of polls or on floor of HouseIf:
Section 108: Advice to dissolve Parliament by Prime Minister defeated on confidence vote
- the Government is defeated at a general election; or
- the Government is defeated on the floor of the House of Representatives in a vote:
- after due notice, on whether the Government has the confidence of the House of Representatives;
- that the Government treats as a vote of no confidence; or
- the effect of which is to reject or fail to pass a Bill appropriating revenue or moneys for the ordinary services of the Government and the Prime Minister considers that there is another person capable of forming a Government that has the confidence of the House of Representatives, the Prime Minister must immediately advise the President of the person whom the Prime Minister believes can form a Government that has the confidence of the House and must thereupon resign.
1. If a Prime Minister who has lost the confidence of the House of Representatives (defeated Prime Minister) advises a dissolution of the House of Representatives, the President may, acting in his or her own judgment, ascertain whether or not there is another person who can get the confidence of the House of Representatives (alternative Prime Minister) and:
- if the President ascertains that an alternative Prime Minister exists-ask the defeated Prime Minister to resign, dismiss him or her if he or she does not do so and appoint the alternative Prime Minister; or
- if the President cannot ascertain that an alternative Prime minister exists-grant the dissolution advised by the defeated Prime Minister.
2. If the President appoints the alternative Prime Minister pursuant to paragraph (1)(a) but the alternative Prime Minister fails to get the confidence of the House of Representatives, the President must dismiss him or her, re-appoint his or her predecessor and grant that person the dissolution originally advised.Section 109: Dismissal of Prime Minister
1. The President may not dismiss a Prime Minister unless the Government fails to get or loses the confidence of the House of Representatives and the Prime Minister does not resign or get a dissolution of the Parliament.
2. If the President dismisses a Prime Minister, the President may, acting in his or her own judgment, appoint a person as a caretaker Prime Minister to advise a dissolution of the Parliament.
Part 4 Government AdministrationSection 110: Secretaries of departments
1. Each department for which a Minister has responsibility for general direction fid control is managed by a person designated as a Permanent Secretary, Secretary, head of department or other appropriate name (Secretary).
2. The Secretary of a department is responsible to the Minister concerned for the efficient, effective and economical management of the department.
3. In this section department does not include the Fiji Police Force or the Republic of Fiji Military Forces.Section 111: Commissioner of Police
1. This section establishes the office of Commissioner of Police.
2. The Commissioner of Police is appointed by the Constitutional Offices Commission following consultation by it with the Minister.
3. The Fiji Police Force is under the command of the Commissioner of Police.
4. The Commissioner of Police is responsible for:
- the organization and administration of the Fiji Police Force; and
- its deployment and the control of its operations and, subject to subsection (5), is not subject to direction or control by any other person or authority in relation to those matters.
5. The Minister may from time to time issue general policy directions with respect to the maintenance of public safety and public order and, if such a direction has been issued, the Commissioner of Police must act in accordance with it.
6. The Parliament may make laws relating to the Fiji Police Force.Section 112: Republic of Fuji Military Forces
1. The military force called the Republic of Fiji Military Forces established by the Constitution of 1990 continues in existence.
2. The President, acting on the advice of the Minister, must appoint a Commander of the Republic of Fiji Military Forces to exercise military executive command of the Forces, subject to the control of the Minister.
3. The Commander of the Republic of Fiji Military Forces is responsible for:
- making appointments of members of the Forces;
- taking disciplinary action against members of the Forces; and
- removing members from the Forces.
4. The Parliament may make laws relating to the Republic of Fiji Military Forces.Section 113: Solicitor-General
1. This section establishes the office of Solicitor-General.
2. The Solicitor-General must be a person who is qualified to be appointed as a judge.
3. The Solicitor-General is appointed by the Judicial Service Commission following consultation by it with the Attorney-General.Section 114: Director of Public Prosecutions
1. The office of Director of Public Prosecutions established by the Constitution of 1990 continues in existence.
2. The Director of Public Prosecutions must be a person who is qualified to be appointed as a judge.
3. The Director of Public Prosecutions is appointed by the Constitutional Offices Commission following consultation by it with the Attorney-General.
4. The Director of Public Prosecutions may:
- institute and conduct criminal proceedings;
- take over criminal proceedings that have been instituted by another person or authority; and
- discontinue, at any stage before judgment is delivered, criminal proceedings instituted or conducted by the Director of Public Prosecutions or another person or authority.
5. The powers of the Director of Public Prosecutions may be exercised by him or her in person or through other persons acting on his or her instructions.
6. In this section criminal proceedings means criminal proceedings before any court of law (other than a military court), and includes an appeal, case stated or question of law reserved.
Part 5 Prerogative of MarcySection 115: Prerogative of mercy
1. The President may:
- grant to a person convicted of an offense under the law of the State a pardon or a conditional pardon;
- grant to such a person a respite, either indefinitely or for a specified period, of the execution of the punishment imposed for the offense;
- substitute a less severe form of punishment for the punishment imposed; or
- remit the whole or part of:
- the punishment imposed; or
- a penalty or forfeiture otherwise due to the State in respect of the offense.
2. This subsection establishes a Commission on the Prerogative of Mercy consisting of:
- the Attorney-General who is to be its chairperson; and
- 2 other members appointed by the President, acting in his or her own judgment.
3. In the exercise of his or her powers under subsection (1), the President acts on the advice of the Commission.
4. If a person is sentenced to death for an offense otherwise than by a court martial, the Commission must:
- consider a report on the case prepared by:
- the judge who presided at the trial; or
- if the report cannot be obtained from that judge--the Chief Justice:
- consider such other information derived from the record of the case or elsewhere as is available to the Commission; and
- advise the President whether or not to exercise his or her power under subsection (1).a