Chapter 9 JudiciarySection 117: Judicial power
1. The judicial power of the State vests in the High Court, the Court of Appeal and the Supreme Court and in such other courts as are created by law.
2. The Supreme Court is the final appellate court of the State.Section 118: Independence of judicial branch
The judges of the State are independent of the legislative and executive branches of government.Section 119: Jurisdiction of courts of State
Each of the High Court, the Court of Appeal and the Supreme Court has the jurisdiction, including the inherent jurisdiction, conferred on it (or, in the case of the Court of Appeal, conferred on the Fiji Court of Appeal) immediately before the commencement of this Constitution and any further jurisdiction conferred on it by this Constitution or by any written law.Section 120: Jurisdiction of High Court
1. The High Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other original jurisdiction as is conferred on it under this Constitution.
2. The High Court also has original jurisdiction in any matter arising under this Constitution or involving its interpretation.
3. The High Court has jurisdiction, subject to the conferral by Parliament of rights of appeal and to such requirements as the Parliament prescribes, to hear and determine appeals from all judgments of subordinate courts.
4. If in any proceedings in a subordinate court any question arises as to the interpretation of this Constitution and the member presiding in the proceedings considers that a substantial question of law is involved, the member presiding must refer the question to the High Court.
5. When the High Court gives its decision on a question referred to it under subsection (4), the Court in which the question arose must dispose of the case in accordance with:
- the decision; or
- if the decision is the subject of appeal to the Court of Appeal or to the Supreme Court--the decision of the Court of Appeal or Supreme Court, as the case may be.
6. The High Court has jurisdiction to supervise any civil or criminal proceedings before a subordinate court and may, on an application duly made to it, make such orders, issue such writs and give such directions as it considers appropriate to ensure that justice is duly administered by the subordinate court.Section 121: Jurisdiction of Court of Appeal
1. The Court of Appeal has jurisdiction, subject to this Constitution and to such requirements as the Parliament prescribe, to hear and determine appeals from all judgments of the High Court, and has such other jurisdiction as is conferred by law.
2. Appeals lie to the Court of Appeal as of right from a final judgment of the High Court in any matter arising under this Constitution or involving its interpretation.
3. The Parliament may provide that appeals lie to the Court of Appeal, as of right or with leave, from other judgments of the High Court in accordance with such requirements as the Parliament prescribes.Section 122: Jurisdiction of Supreme Court
1. The Supreme Court has exclusive jurisdiction, subject to such requirements as the Parliament prescribes, to hear and determine appeals from all final judgments of the Court of Appeal.
2. An appeal may not be brought from a final judgment of the Court of Appeal unless:
- the Court of Appeal gives leave to appeal on a question certified by it to a be of significant public importance; or
- the Supreme Court gives special leave to appeal.
3. In the exercise of its appellate jurisdiction, the Supreme Court has power to review, vary, set aside or affirm decisions or orders of the Court of Appeal and may make such orders (including an order for a new trial and an order for award of costs) as are necessary for the administration of justice.
4. Decisions of the Supreme Court are, subject to subsection (5), binding on the courts of the State.
5. The Supreme Court may review any judgment, pronouncement or order made by it.Section 123: Advisory jurisdiction
The President may, in the public interest and on the advice of the Cabinet, refer to the Supreme Court for its opinion any question as to the effect of a provision of this Constitution that has arisen or appears likely to arise, and the Supreme Court must pronounce in open court its opinion on the question.Section 124: Contempt of court
The Supreme Court, the Court of Appeal and the High Court have power to punish persons for contempt of court in accordance with the law.Section 125: Rules of court
The President of the Supreme Court may make rules of court, not inconsistent with this Constitution or a law made by the Parliament, for regulating and prescribing the practice and procedure to be followed in the Supreme Court.Section 126: Composition of High Court
1. The High Court consists of the Chief Justice and a number of puisne judges that is not less than 10 or such greater number as the Parliament prescribes.
2. The Parliament may make provision for the appointment of Masters of the High Court and may prescribe their jurisdiction and powers.Section 127: Composition of Court of Appeal
The Court of Appeal consists of:
Section 128: Composition of Supreme Court
- a judge, other than the Chief Justice, who is appointed as President of the Court of Appeal.
- such other judges as are appointed as Justices of Appeal; and
- the puisne judges of the High Court.
The Supreme Court consists of:
Section 129: Disqualification of judge
- the Chief Justice, who is to be President of the Supreme Court;
- such other judges as are appointed as judges of the Supreme Court; and
- the Justices of Appeal.
A judge who has sat in a trial of a matter that is the subject of appeal to a higher court must not sit in the appeal.Section 130: Qualifications for appointment
A person is not qualified for appointment as a judge unless he or she:
Section 131: Judicial Service Commission
- holds, or has held, high judicial office in Fiji or in another country prescribed by the Parliament; or
- has had not less than 7 years' practice as a barrister or solicitor in Fiji or in another country prescribed by the Parliament.
1. This section establishes a Judicial Service Commission consisting of:
- the Chief Justice who is to be its chairperson;
- the chairperson of the Public Service Commission; and
- the person who is from time to time the President of the Fiji Law Society.
2. In addition to the functions conferred on it elsewhere in this Constitution, the Judicial Service Commission may investigate complaints about judges and judicial officers of courts subordinate to the High Court and may take disciplinary action against them.
3. The members of the Judicial Services Commission are entitled to such allowances as the Parliament fixes.Section 132: Appointments of judges
1. The Chief Justice is appointment by the President on the advice of the Prime Minister following consultation by him or her with the Leader of the Opposition.
2. The judges of the Supreme Court, the Justices of Appeal (including the President of the Court of Appeal) and the puisne judges of the High Court are appointed by the President on the recommendation of the Judicial Service Commission following consultation by it with the Minister and the sector standing committee of the House of Representatives responsible for matters relating to the administration of justice.
3. The President may, on the recommendation of the Judicial Service Commission following consultation by it with the Minister:
- appoint a judge or a person who is qualified for appointment as a judge to act as Chief Justice during any period, or during all periods, when the office of Chief Justice is vacant or when the Chief Justice is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office; and
- appoint a person to act as a puisne judge of the High Court during any period, or during all periods, when an office of puisne judge of the High Court is vacant or when a puisne judge is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
4. A person is not eligible to be appointed under paragraph (3)(b) unless he or she is qualified for appointment as a judge.Section 133: Other appointments
1. Appointments to the following offices are made by the Judicial Service Commission:
- an office of Magistrate;
- the office of central agricultural tribunal under the Agricultural Landlord and Tenant Act;
- all judicial offices for which provision is made by the Parliament.
2. In making appointments under paragraph (1)(a) or (b), the Judicial Service Commission must consult with the Prime Minister and the Leader of the Opposition.
3. If a written law so provides, the Judicial Service Commission may also make appointments of persons to offices that are not judicial offices.
4. The Judicial Service Commission must get the consent of the Prime Minister before recommending a non-citizen for appointment to a judicial office (other than an office of judge).Section 134: Criteria for appointment to judicial office
The making of appointments to judicial office is governed by the principles, first, that judges should be of the highest quality and, secondly, that the composition of the judiciary should, as far as practicable, reflect the ethnic and gender balance of the community.Section 135: Oath of office
Before taking office, a judge must make before the President, the oath of office set out in Part D of the Schedule.Section 136: Judges remuneration
The remuneration of judges must not be reduced during their terms of office.Section 137: Retirement ages for judges
1. Subject to subsection (2), the term of appointment of the Chief Justice, a Justice of Appeal (including the President of the Court of Appeal) or a judge of the Supreme Court expires upon his or her reaching the age of 70.
2. A Justice of Appeal (including the President of the Court of Appeal) or a judge of the Supreme Court may be appointed for a term of years, or for the duration of one or more sessions of the court concerned, expiring after the date on which he or she reaches the age of 70.
3. The term of appointment of a puisne judge of the High Court expires upon his or her reaching the age of 65, and a person must not be appointed if he or she has reached that age.
4. Nothing in subsection (3) prevents the appointment of a puisne judge of the High Court for a term of not less than 4 nor more than 7 years, but any such appointment must not extend beyond the date on which he or she reaches the age of 65.
5. The Chief Justice, a judge of the Supreme Court, a Justice of Appeal (including the President of the Court of Appeal) or a puisne judge of the High Court who has reached the applicable retiring age is eligible for appointment as a judge of the Supreme Court or a Justice of Appeal (including the President of the Court of Appeal) for a term not exceeding 3 years or for the duration of one or more sessions of the court concerned if he or she has not reached the age of 75 at the date of appointment.
6. The applicable retiring age under this section does not apply to a person appointed as an acting judge under subsection 132 (3).Section 138: Removal of judges for cause
1. A judge may be removed from office for inability to perform the functions of his or her 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 a judge from office must be by the President pursuant to subsection (3).
3. If the President considers that the question of removing a judge from office ought to be investigated, then:
- the President appoints:
- in the case of alleged misbehavior--a tribunal, consisting of a chairperson and not less than 2 other members, selected by the President from among persons who hold or have held high judicial office in Fiji or in another country prescribed by the Parliament; and
- in the case of alleged inability to perform the functions or office--a medical board, consisting of a chairperson and 2 other members, each of whom is a qualified medical practitioner;
- the tribunal or medical board inquires into the matter and furnishes a written report of the facts to the President and advises the President whether or not the judge should be removed from office; and
- if the tribunal or medical board advises that the judge should be removed from office, the President may remove the judge from office.
4. If the question of removing a judge from office has been referred to a tribunal or medical board under subsection (3), the President may suspend the judge from office and may, at any time, revoke that suspension.
5. The suspension of the judge from office ceases to have effect if the tribunal or medical board advises the President that the judge should not be removed from office.Section 139: Existing appointments
Nothing in this Chapter affects the continuance of a person in office as a judge under an appointment made before the commencement of this Constitution.