Fiji Court of Appeal rules in favour of the State and orders that appointment of teachers must be on merit

The Fiji Court of Appeal has today ruled that the State must select and appoint teachers on merit only and without regard to any religion or religious belief if it provides teachers to any school.

In their landmark judgement where the Appeals Court overturned the High Court’s earlier decision, the Court of Appeal Judges ruled that the Permanent Secretary for Education has the lawful right to appoint any teacher or head of school or in any acting position in any aided school of the SDA Church, and has ordered that the members and trustees of the SDA Church must not interfere with the Ministry of Education’s right to appoint teachers including head teachers, as well as making any acting appointments at the SDA College.

The Appeals Court has ruled that the Permanent Secretary for Education or any public officer must not prefer or advance any religion by any means, including in the appointment of public servants as teachers or in the grant of public funds (including education grant) to any school. It also says no public officer who is sent to teach in schools can be required to promote or advance any religion or religious belief at any such school.

The Court of Appeal says any religious community which receives assistance from the State in the form of teachers cannot interfere in the appointment of such teachers, nor can the religious community refuse to accept the appointment of teachers on the ground of religion or religious belief or any other prohibited ground of discrimination.

It further says every religious community which has established a school has the right to appoint at their own expense and without any expense to the State, their own employees as teachers to teach at their schools.

The Appeals Court says although any religious community has the right to close any school established by them, this right is subject to regulatory sanction of the Permanent Secretary for Education to ensure that the right to education is not undermined and that disruption to education of students is minimised.

The appeal filed by the State against the decision of the High Court regarding the appointment of the Head of School at Vatuvonu Seventh Day Adventist College has been allowed.

The Court of Appeal has wholly set aside the decision of the High Court which had earlier ruled that the appointment of State-funded teachers in any school established by a faith based organisation must be approved by the faith based organisation.

The Court of Appeal discussed the principles, values and spirit of the 2013 Constitution, and held that the 2013 Constitution boldly cultivates a direction towards commonality and equality in pluralism, and interpreted the 2013 Constitution as the instrument to connect different cultural and religious sectors which co-exist in Fiji, without undervaluing the uniqueness of each.

The Appeals Court held that in the pursuit of religious liberty, secularism plays a key role as the aim of secularism, as enshrined in the 2013 Constitution, is to safeguard freedom of religion from State interference: the State must protect the right and the freedom to practice religion but at the same time, must remain neutral and aloof in matters of religion.

The court says alternatively, if the State were to be founded on a particular faith or religion, the State would be perceived to be marginalising the world views and values of those persons who hold those other faiths and beliefs.

In welcoming the judgement of the Court of Appeal, Attorney General, Aiyaz Sayed-Khaiyum says this decision vindicates Government’s position that appointments in the public service must be based on merit and merit alone, and that no one must be discriminated on the basis of his or her faith or religion or any other prohibited ground of discrimination.

Sayed-Khaiyum says this trailblazing decision in the Fijian constitutional jurisprudence will provide further guidance with respect to the appointment of teachers as well as other public servants.

The State was represented by the Solicitor General, Sharvada Sharma and his team while David Bennett QC and Andrew Tokley QC from Australia appeared for the SDA College.