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Chief Justice Salei Temo is calling for an amendment to a provision in the 2013 Constitution to prevent senior judges from being “locked out” of high-profile legal challenges.

Justice Temo argues that the current makeup of the Judicial Service Commission creates a conflict of interest that ultimately deprives the public of the most experienced legal minds.

Under Section 104 of the 2013 Constitution, the Chief Justice and the President of the Court of Appeal serve as ex officio members of the Judicial Service Commission.

While this sounds like a standard administrative role, Justice Temo says it creates a major hurdle when JSC decisions – such as the appointment of the DPP or the Commissioner of the Fiji Independent Commission Against Corruption – are challenged in court.

“By virtue of this membership of the JSC, they are automatically disqualified from speaking in any court matter that proceeds to the High Court, the Court of Appeal, and the Supreme Court on challenges to the decision of the Judicial Service Commission.”

Justice Temo says this disqualification is a loss for the judicial system.

When a major legal dispute arises, such as the recent controversies involving the DPP or the Commission of Inquiry, the two most senior judges in the country cannot sit on the bench to hear the case because they were part of the body that made the original decision.

“The public doesn’t benefit from the participation of these two most senior legal officers… to participate in the determination of the challenging issues that come to the Court. Like, for example, in the dispute over the Malimali case, I’m disqualified from sitting on any issue that goes to the Supreme Court, while at the same time, I understand the legal issues under challenge.”

The Chief Justice is proposing a simple but significant change: adding the words “or his or her nominee” to the membership rules for both the Chief Justice and the President of the Court of Appeal.

This amendment would allow the heads of the judiciary to appoint a surrogate – such as a Supreme Court or High Court judge—to sit on the Commission in their place.

Justice Temo highlighted that the goal is to preserve the status of senior judges so they can provide “resolutions in furtherance of the public interest” when constitutional crises reach the courtroom.

He says that by allowing for nominees, the judiciary can ensure that JSC appointments remain robust while keeping the nation’s top legal experts available to settle the most difficult legal debates.

The proposal has been submitted to the Constitution Review Committee for consideration as part of the wider review of the 2013 Constitution.