Chapter 11 Accountability
Part 1 Code of ConductSection 156: Code of Conduct
1. This section applies to the President, Vice-President, Ministers, members of Parliament, holders of offices established by or continued in existence under this Constitution, members of commissions, Secretaries of departments, the Secretary to the Cabinet and persons who hold statutory appointments or governing or executive positions in statutory authorities.
2. Persons to whom this section applies must so conduct themselves in relation to the performance of their public dudes as not:
- to place themselves in positions in which they have, or could be seen as having, a conflict between their private interests and their public duties;
- to compromise the fair exercise of their public duties;
- to use their offices for private gain;
- to allow their integrity to be called into question; or
- to cause respect for, or confidence in, the integrity of the Government to be diminished.
3. The Parliament must, as soon as practicable after the commencement of this Constitution, make a law:
- to implement more fully the conduct rules set out in subsection (2);
- to provide for the monitoring of standards of conduct in relation to the performance of public duties; and
- if the Parliament considers it appropriate, to make provision in relation to the investigation of alleged breaches of those standards and the enforcement of those standards.
Part 2 OmbudsmanSection 157: Ombudsman
1. This section establishes the office of Ombudsman.
2. The Parliament may make a law establishing other offices of Ombudsman. If does so:
Section 158: Functions of Ombudsman
- the persons appointed to the offices have all the powers, privileges and immunities conferred on the Ombudsman under this Part; and
- the person appointed as Ombudsman under this Part is to be known as Chief Ombudsman, with responsibility for controlling the staff of the Ombudsman's office and for allocating work amongst the Ombudsmen.
1. Subject to this Part, the Ombudsman:
- must investigate action, being action that relates to a matter of administration, taken either before or after the commencement of this Constitution by a department or by a prescribed authority, and in respect of which a complaint has been made to the Ombudsman; and
- may, of his own motion or at the request of a member of the Parliament or of a committee of the Parliament, investigate any action, being action that relates to a matter of administration, taken either before or after the commencement of this Constitution by a department or by a prescribed authority.
2. Complaints under this section in relation to action that relates to a matter of administration may be made:
- by any person or body whose interests are affected by the action, not being a person or body:
- established for a public purpose by, or in accordance with, an Act; or
- who is, or whose members are, appointed by the President or a Minister; or
- by a member of the Parliament on behalf of such a person or body.
3. The Ombudsman may entertain a complaint made on behalf of another person if the Ombudsman is satisfied that the other person cannot, for any reason, make the complaint in person.
4. The authority of the Ombudsman to investigate complaints in relation to action relating to a matter of administration extends to action taken by a commission to the extent that:
- the action relates to a function conferred on it otherwise than by this Constitution; and
- the authority to investigate is conferred by a law made by the Parliament.
5. The Ombudsman is not authorized to investigate:
- action taken by a Minister;
- action taken by a judge; or
- action taken by any body or person with respect to the appointment of a person to, or the removal of a person from, a public office, the taking of disciplinary action against the holder of a public office or the pension entitlement of a person who is or was the holder of a public office.
6. The proceedings of the Ombudsman may not be called into question in any court of law.Section 159: Discretion not to investigate
1. If a complaint has been made to the Ombudsman with respect to action taken by a department or a prescribed authority, the Ombudsman may, in his or her discretion, decide not to investigate the action or, if he or she has started to investigate the action, decide not to investigate it further if, in the opinion of the Ombudsman, an investigation, or further investigation is not warranted having regard to all the circumstances of the case.
2. The Parliament may prescribe other circumstances in which the Ombudsman has a discretion not to investigate a complaint or not to investigate it further.
3. If the Ombudsman considers that a complainant has or had a right to cause the action concerned to be reviewed by a court or tribunal, the Ombudsman must not investigate the complaint or investigate it further unless he or she is satisfied that:
Section 160: Investigations
- the complainant could not reasonably exercise, or could not have reasonably exercised, that right; or
- the action involves a breach of the Bill of Rights.
The Parliament may make laws relating to the conduct of investigations by the Ombudsman.Section 161: Reports by Ombudsman
1. If, after an investigation into action taken by a department or prescribed authority has been completed, the Ombudsman is of the opinion that the action:
- was contrary to law;
- as based wholly or partly on a mistake of law or fact;
- was unreasonable, unjust, oppressive or improperly discriminatory; or
- was otherwise, in all the circumstances, wrong this section applies to the decision, recommendation, act or omission constituting that action.
2. If the Ombudsman is of the opinion:
- that a decision, recommendation, act or omission to which this section applies should be referred to the appropriate authority for further consideration;
- that a particular step should be taken to rectify, mitigate or alter the effects of a decision, recommendation, act or omission to which this section applies;
- that a decision to which this section applies should be canceled or varied;
- that a rule of law, or a provision of a written law, on which a decision, recommendation, act or omission to which this section applies;
- that reasons should have been, but were not, given for a decision to which this section applies; or
- that any other thing should be done in relation to a decision, recommendation, act or omission to which this section applies the Ombudsman must report accordingly to the department or prescribed authority concerned.
3. The Ombudsman must give a copy of the report to the Prime Minister and Minister concerned and:
- if the investigation was undertaken as a result of a complaint--to the complainant; or
- if the investigation was undertaken at the request of another person or body--to that person or body.
4. The Ombudsman may ask the department or prescribed authority to which the report is given to give to the Ombudsman, within a specified time, particulars of action that it proposes to take with respect to the matters, including any recommendations, in the report.
5. The department or authority may give the Ombudsman such comments on the report as it wishes to make.Section 162: Reports to the Parliament
If within a reasonable time after the making of a report under section 161 action that is, in the opinion of the Ombudsman, adequate and appropriate has not been taken, the Ombudsman may give a further report on the matter to the House of Representatives and the Senate, enclosing with the report any comments made by the department or prescribed authority under subsection 161 (5).Section 163: Appointment of Ombudsman
1. The Ombudsman is appointed by the Constitutional Offices Commission following consultation by it with the Prime Minister.
2. The Ombudsman must not perform the functions or duties of another public office (except the office of the chairperson of the Human Rights Commission) and must not, without the written approval of the Prime Minister, hold any other paid office or engage in any paid occupation or calling outside the duties of his or her office.
3. The Constitutional Offices Commission may, following consultation by it with the Prime Minister, appoint a person to act as Ombudsman during any period, or during all periods, when the office of Ombudsman is vacant or when the Ombudsman is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.Section 164: Annual report
1. In this Part, a reference to the taking of action includes a reference to:
- the making of a decision or recommendation;
- the formulation of a proposal; and
- a failure or refusal to take any action, to make a decision or recommendation or to formulate a proposal.
2. For the purposes of this Part, action that is taken by an officer of a department is deemed to be taken by the department if the officer takes the action by virtue of being an officer of the department, whether or not the taking of the action is within the duties of the officer.
3. For the purposes of this Part, action that is taken by an officer of a prescribed authority is deemed to be taken by the authority if the officer takes the action by virtue of being an officer of the authority, whether or not the taking of the action is within the duties of the officer.
4. For the purposes of this Part, action that is taken by a member of the Fiji Police Force or Fiji Prisons Service is deemed to be taken by the Force or the Service, as the case may be, if the member takes the action by virtue of being a member of the Force or Service, whether or not the taking of the action is within the duties of the member.
5. if a person who is not an officer of a department or of a prescribed authority takes action in the performance of a function that the person is authorized to perform because he or she is a member of the President's personal staff, the action is deemed to be taken by the department responsible for dealing with the matter in connection with which the action is taken.
6. For the purposes of this Part, the Fiji Police Force and the Fiji Prisons Service are deemed to be prescribed authorities.
7. In the application of this Part in relation to the Fiji Police Force and the Fiji Prisons Service, references to an officer of a prescribed authority are to be read as references to a member of the Fiji Police Force or the Fiji Prisons Service, as the case may be.
Part 3 Auditor-GeneralSection 166: Auditor-General
This section establishes the office of Auditor-General.Section 167: Functions of Auditor-General
1. At least once in every year, the Auditor-General must inspect and audit, and report to the Parliament on:
- the public accounts of the State;
- the control of public money and public property of the State; and
- all transactions with or concerning the public money or public property of the State.
2. In the report, the Auditor-General must state whether, in his or her opinion:
- transactions with or concerning the public money or public property of the State have been authorized by or pursuant to this Constitution or an Act of the Parliament; and
- expenditure has been applied to the purpose for which it was authorized.
3. The Parliament may make further provision in relation to the office of the Auditor-General and may confer further functions and powers on the Auditor-General.
4. In the performance of his or her duties, the Auditor-General or a person authorized by him or her has access to all records, books, vouchers, stores or other government property in the possession or control of any person or authority.
5. A law made by the Parliament may provide that the accounts of a specified body corporate are not subject to audit by the Auditor-General but are to be audited as prescribed in that law.
6. If the law so provides. it must also empower the Auditor-General to review those audits and report the results of a review.
7. The Auditor-General must submit a report made by him or her to the Speaker of the House of Representatives and must submit a copy to the Minister.
8. Within 30 days of receipt, or if the Parliament is not then sitting, on the first sitting day after the end of that period, the Speaker must cause the Leader of each House of the Parliament to lay the report before the House.Section 168: Appointment of Auditor-General
1. The Auditor-General is appointed by the Constitutional Offices Commission following consultation by it with the relevant sector standing committee of the House of Representatives.
2. The Constitutional Offices Commission may, following consultation by it with the Minister, appoint a person to act as Auditor-General during any period, or during all periods, when the office of Auditor-General is vacant or when the Auditor-General is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
Part 4 General Provisions Relating to Certain Constitutional OfficesSection 169: Interpretation
This Part applies to:
Section 170: Terms and conditions of office
- the Supervisor of Elections;
- the Ombudsman;
- the Auditor-General;
- the Director of Public Prosecutions;
- the Secretary-General to Parliament;
- the Commissioner of Police;
- the members of the Human Rights Commission referred to in paragraphs 42 (3)(b) and (c);
- the members of the Constituency Boundaries Commission;
- the members of the Electoral Commission;
- the members of the Parliamentary Emoluments Commission;
- the members of the Commission on the Prerogative of Mercy referred to in paragraph 115 (2)(b);
- the members of the Constitutional Offices Commission;
- the members of the Public Service Commission; and
- the members of the Disciplined Services Commission.
1. Subject to this section, a person to whom this Part applies referred to in any of paragraphs 169 (a) to (f) inclusive or in paragraph 169 (i) holds office for 5 years and is eligible for re-appointment.
2. Subject to this section, a person to whom this Part applies referred to in paragraph 169 (g), (h), (j), (k), (l), (m) or (n) holds office for 2 years, is eligible for re-appointment for one further term of 2 years but is not eligible for re-appointment after that.
3. The term of appointment of a person to whom this Part applies referred to in any of paragraphs 169 (a) to (f) inclusive expires upon his or her reaching the age of 65, and a person must not be appointed or re-appointed if he or she has reached that age.
4. The appointment of a person to whom this Part applies is subject to the terms and conditions (if any) set out in it.
5. In the performance of his or her duties or functions or the exercise of his or her powers, a person to whom this Part applies is not subject to direction or control by any person or authority.
6. Subsection (5) does not limit:
Section 171: Remuneration and allowances
- the obligation of the Supervisor of Elections to act in accordance with directions of the Electoral Commission, as contemplated by section 79; or
- the obligation of the Commissioner of Police to act in accordance with general policy directions of the Minister, as contemplated by subsection 111 (5).
A person to whom this Part applies referred to in any of paragraphs 169 (a) to (f) inclusive is entitled to such remuneration and allowances as the Parliament fixes, and the remuneration and allowances must not reduce during his or her term of office.Section 172: Removal from office for cause
1. In this section prescribed authority means:
- in relation to persons to whom this Part applies referred to in paragraphs 169 (a) to (f) inclusive--the Constitutional Offices Commission; and
- in relation to any other person to whom this Part applies--the President.
2. A person to whom this Part applies 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.
3. Removal from office must be by the prescribed authority pursuant to subsection (4).
4. If the prescribed authority considers that the question of removal from office ought to be investigated, then:
- the prescribed authority appoints a tribunal, consisting of a chairperson and not less than 2 other members;
- the chairperson and at least one of the other members are selected by the prescribed authority from among persons who hold or have held high judicial office in Fiji or in another country prescribed by the Parliament;
- the tribunal enquirers into the matter and furnishes a written report of the facts to the prescribed authority and advises the prescribed authority whether or not the person concerned should be removed from office; and
- if the tribunal advises that the person should be removed from office, the prescribed authority may remove the person from office.
5. If the question of removing from office a person to whom this Part applies has been referred to a tribunal under subsection (4), the prescribed authority may suspend the person from office and may, at any time, revoke the suspension.
6. In the exercise by the President of a power under this section, he or she must act on the advice of the Prime Minister following consultation by the Prime Minister with the Leader of the Opposition.
7. The suspension from office of a person to whom this Part applies ceases to have effect if the tribunal advises the prescribed authority that the person should not be removed from office.Section 173: Performance of functions of commissions and tribunals
1. A commission may by regulation make provision for regulating and facilitating the performance of its functions.
2. A decision of a commission requires the concurrence of a majority of its members and the commission may act despite the absence of a member but, if, in a particular case, a vote is taken to decide a question and the votes cast are equally divided, the person presiding must exercise a casting vote.
3. Subject to this section, a commission may regulate its own procedure.
4. In the performance of its functions or the exercise of its powers, a commission is not subject to the direction or control of any other person or authority, except as otherwise provided by this Constitution.
5. Nothing in subsection (4) limits the responsibility of the Government for the structure of the public service or the Fiji Police Force, nor the Government's general policy responsibility for the management of the public service or the Fiji Police Force.
6. In addition to the functions conferred upon it by or under this Constitution, a commission has such powers and other functions (if any) as are prescribed.
7. The validity of the transaction of business of a commission is not affected if someone who was not entitled to do so took part in the proceedings.
8. Subsections (1), (2), (3) and (4) apply in relation to a tribunal established for the purposes of subsection 23 (3), 34 (9), 93 (3), 138 (3) or 172 (4) in the same way as they apply in relation to a commission and such a tribunal has the same powers as the High Court in respect of the attendance and examination of witnesses (including the administration of oaths and the examination of witnesses abroad) and in respect of the production of documents.
9. In this section: tribunal includes a medical board referred to in subsection 93 (3) or 138 (3).
Part 5 Freedom of InformationSection 174: Freedom of information
As soon as practicable after the commencement of this Constitution, the Parliament should enact a law to give members of the public rights of access to official documents of the Government and its agencies.