Sharvada Sharma’s lawyer, Richard Naidu has today confirmed that Sharma refuses to accept a flawed, unconstitutional and unfair process to terminate his appointment as Solicitor General without being given the opportunity to defend himself before an independent tribunal as the 2013 Constitution requires.
Naidu says Munro Leys has received instructions from Sharma to challenge in court the farcical process that led to his suspension without pay and later termination as Solicitor General.
Naidu says Sharma's appointment has been terminated without even the pretence of a hearing before an independent tribunal as the Constitution requires.
He says Sharma was suspended by the President of Fiji on 20th September on the advice of the Judicial Services Commission.
Richard Naidu also confirms that this followed a complaint against Sharma by the Supervisor of Elections, Mohammed Saneem.
Naidu says the suspension was without pay.
He says it is contrary to law (and, according to Sharvada Sharma, until recently a Judicial Services Commission member, contrary to the Commission’s practice) to suspend any public servant without pay.
Naidu says the first thing the Commission should have done was to get Sharma’s response to the complaint. The Munro Leys partner says the Judicial Services Commission did nothing for more than seven weeks.
He says then, on Thursday 4th November, the Diwali religious and public holiday, a Police officer delivered to Sharvada Sharma a letter from the Commission.
Naidu says the letter had 31 detailed questions.
He says it demanded that Sharma respond to these questions in two days – that is, by Saturday 6th November at 4pm.
Richard Naidu says this is effectively one working day to respond.
He says as a former Commission member, Sharvada Sharma knows that the standard response time given to any officer the subject of a complaint is at least 14 days, if not longer.
The Munro Leys partner says on Sharma’s behalf, they responded to the Commission’s letter on Friday 5th November. They pointed out that the time-frame for response was absurd and unfair. They said Sharma needed time to consider the questions, take legal advice and prepare a detailed response. They offered to respond within eight working days.
Richard Naidu says this offer was rejected.
He says the Commission told them again that Sharvada Sharma must reply by Saturday.
Naidu says they replied to the Commission on Saturday 6th November that Sharma denied all the allegations in the complaint and would provide a detailed response if given a reasonable time however Sharma could not and would not rush his response just so the Commission could “tick a box”.
He says Sharma heard nothing more until Wednesday 10th November when he was delivered a letter from the President to terminate his appointment for “misbehaviour”.
Naidu says the letter from the President said that failure to reply to the Commission was “tantamount to cumulative misbehaviour”.
Naidu says under sections 112 and 116 of the Constitution, the Solicitor General can only be removed from office after a proper inquiry (assuming that there is a proper complaint in the first place) by an independent tribunal.
Richard Naidu says Sharma cannot be dismissed when he has denied the allegations, merely for failing to respond to a Commission letter in the way that the Commission wants him to respond.
The Munro Leys partner says the whole point of the tribunal process under the Constitution is to avoid arbitrary dismissals of this kind.
Richard Naidu says Sharvada Sharma has served in the office of the Attorney General for the last 24 years, 10 of those as Solicitor General.
By: Vijay Narayan / Naveel Krishant
There is still no confirmation on whether a tribunal will look into the earlier allegation of misbehaviour against Sharvada Sharma whose appointment as the Solicitor General of Fiji was terminated earlier this week.
A statement on the Government Facebook Page says that on the 10th of November 2021, the President of Fiji at the time, on the advice of the Judicial Services Commission and in accordance with the Fijian Constitution, terminated the appointment of Sharma.
Sharma was suspended by former President Jioji Konrote more than 7 weeks ago after an allegation of misbehaviour.
The Government statement that was released late last night does not have any details on whether a tribunal will still be set up to look into the allegation of misbehaviour made against Sharma.
Under Section 112(3) of the 2013 Constitution, if the President, acting on the advice of the Judicial Services Commission, considers that the question of removing any judicial officer appointed by the Judicial Services Commission from office ought to be investigated, then the President, acting on the advice of the Judicial Services Commission, shall appoint, in the case of alleged misbehaviour — a tribunal, consisting of a chairperson and not less than 2 other members, selected from amongst persons who hold or have held high judicial office in Fiji or in another country.
Section 104 (1) states that the Judicial Services Commission shall consist of the Chief Justice, who is to be the chairperson; the President of the Court of Appeal; the Permanent Secretary responsible for justice; a legal practitioner to be appointed by the President on the advice of the Chief Justice following consultation by the Chief Justice with the Attorney General and who has not less than 15 years post-admission practice; and has not been found guilty of any disciplinary proceeding involving legal practitioners whether in Fiji or abroad, including any proceeding by the Independent Legal Services Commission or any proceeding under the law governing legal practitioners, barristers and solicitors prior to the establishment of the Independent Legal Services Commission; and a person, not being a legal practitioner, appointed by the President on the advice of the Chief Justice following consultation by the Chief Justice with the Attorney-General.
When questioned by fijivillage early last month on the appointment of the tribunal, Chairman of the Judicial Services Commission, Chief Justice Kamal Kumar said that the tribunal is appointed by the President, and as such the Chair is unable to make any comments on this.
He had earlier said on September 21st that he cannot comment on who made the allegation of misbehaviour against Sharma however a tribunal will now be appointed by the President to hear the case.
Fijivillage has sent questions to the Secretary at the President’s Office from September 21st this year however they have not made any comments.
We have asked when the tribunal will be appointed to look into the allegation of misbehaviour against Sharvada Sharma, if the Office can confirm the particulars of the allegation, what was the process going forward after the suspension and whether Sharma was suspended with or without pay and benefits. We are currently trying to speak to Sharvada Sharma.
The Fiji Law Society is seriously concerned about Sharvada Sharma’s dismissal as Solicitor General in breach of the clear requirements of the 2013 Constitution and the Judicial Services Commission’s explicit confirmation that a tribunal would be appointed to investigate the allegations of misbehaviour made against him.
Law Society President, Wylie Clarke says the termination of Sharma’s appointment without due process being afforded to him is a grave assault on the rule of law and threatens the independence of critical constitutional offices.
Clarke says they are also concerned that the removal may be unlawful.
The Law Society President says the office of Solicitor General, like that of judges and magistrates and the Director of Public Prosecutions, is protected under the Constitution.
Clarke says this protection is essential to maintain the independence of those offices, free of political and other interference and also means that there is a very strict and clear process by which such a removal can be done.
He says the Constitution states that the Solicitor General can only be removed for very limited and serious reasons on the advice of a tribunal appointed by the President: (i) an inability to perform the functions of the office due, for example, to serious illness; or (ii) misbehaviour.
Clarke says the Solicitor General cannot be removed in any other way.
He says the tribunal is made up of current and former judges to ensure impartiality and independence and is charged with enquiring into the allegations.
The Law Society President adds that enquiry would involve obtaining statements from the complainant and witnesses, gathering evidence and, most importantly, affording Sharvada Sharma the right to respond and answer the allegation(s).
Clarke says at the conclusion of that enquiry, the tribunal would furnish the President with a report and provide its advice on whether Sharma should be removed or not.
He says the Judicial Services Commission has no power to render such advice.
Clarke says as far as they are aware, no such tribunal was appointed, no such enquiry conducted and no such advice tendered to the President.
He says an allegation of misbehaviour is very serious because it involves matters such as corruption, unlawful acts and abuse of office.
The Law Society President says misbehaviour does not include decisions, opinions or acts that are unpopular or not liked (or agreed to) by others.
He says the gravity of such an allegation against the holder of a constitutional office demands transparency and accountability, and the community has a right to know.
Clarke says it is for this reason that the Constitution requires that any report prepared by the tribunal must be made public.
He says the rule of law has been severely undermined by the manner in which Sharma has been removed because it sets a very dangerous precedent that could be used just as easily against judges and the Director of Public Prosecutions.
The National Federation Party says the termination of Sharvada Sharma’s appointment as Solicitor General is unconstitutional and sets a new low for rule of law, even by the low standards of the FijiFirst Government.
Party Leader Professor Biman Prasad says the constitution is clear that the Solicitor General can only be removed for misbehaviour after the President is advised by an independent tribunal that he is guilty of misbehaviour.
Professor Prasad says the Solicitor General cannot be summarily sacked.
He says the Government has now abandoned any pretence of following the very constitution that it imposed on the rest of the people.
Professor Prasad says Government refuses to follow even the rules that it has made.
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