Fiji’s Chief Justice Salei Temo has called for a fundamental shift in how the nation manages its judicial workforce, arguing that current retirement rules are discriminatory against local judges. In a formal submission to the seven-member Constitution Review Committee, Justice Temo contended that the mandatory termination of contracts for citizens upon reaching age 75 creates an unfair disparity when compared to the treatment of foreign judicial appointees.
The proposal seeks to amend the Constitution of Fiji to allow judges who remain capable of performing their duties to continue serving beyond the traditional retirement age. This move is framed not merely as a professional courtesy, but as a necessary correction to ensure that the wisdom and experience of Fijian jurists are not prematurely lost to the bench.
At the heart of the dispute is a perceived double standard in how the law treats citizens versus non-citizens. Under existing provisions, foreign judges often operate under flexible contract terms, while local judges face a hard ceiling. Justice Temo suggests that this creates a systemic disadvantage for the local legal fraternity, particularly as the judiciary strives to balance international expertise with homegrown judicial leadership.
The Legal Friction of Section 110
The current tension stems from Section 110 of the Constitution, which outlines the tenure and appointment of judges. The rules differ significantly based on the citizenship of the appointee and the level of the court they serve.
For non-citizens, Section 110 (1) stipulates that appointments are for terms not exceeding three years, as determined by the Judicial Service Commission, with the possibility of reappointment. This structure allows for a rolling renewal of contracts, effectively permitting foreign judges to serve well beyond the age of 75 if their expertise remains required.
In contrast, subsection (2) mandates that other judicial appointments—primarily those of citizens—continue only until the judge reaches a specific retirement age. This creates a rigid exit point for local jurists regardless of their health or mental acuity.
| Judicial Position | Mandatory Retirement Age |
|---|---|
| Chief Justice / President of Court of Appeal | 75 |
| Supreme Court &. Court of Appeal Judges | 75 |
| High Court Judges | 70 |
Justice Temo pointed out that while Section 110 (3) allows a retired High Court judge to be appointed to the Supreme Court or Court of Appeal if they are under 75, the overall framework still limits the longevity of local careers. He argues that this is a violation of the spirit of Section 26 of the Constitution, which explicitly forbids discrimination on the grounds of age.
Addressing the ‘Wisdom Gap’ and Foreign Influence
The Chief Justice’s submission also touched upon the composition of Fiji’s superior courts. He noted that prior to his tenure as acting Chief Justice and subsequently Chief Justice, the superior courts—including the High Court, Court of Appeal, and Supreme Court—were heavily dominated by judges from Sri Lanka.
Upon taking office, Justice Temo shifted the recruitment strategy to align with traditional partnerships, bringing in retired judges from New Zealand, Australia, and the United Kingdom. While these international appointments provide essential stability and expertise, they also highlight the disparity in tenure. Many of these foreign judges are already retired in their home countries and are brought in on contracts that can be extended, regardless of whether they have passed the 75-year mark.
Justice Temo challenged the notion that academic credentials alone are the primary marker of a judge’s value. He argued that academic brilliance and multiple degrees do not always equate to the wisdom required to benefit society, suggesting instead that the lived experience and institutional memory of seasoned local judges are indispensable assets to the Fijian legal system.
“However, when it comes to a citizen of Fiji, we have to inform them at 75 you have to go by virtue of Section 110 (2). Now we tend to see that as a discrimination against us pursuant to Section 26 of the Constitution, which forbids discrimination on the grounds of age.”
Proposed Reforms and Future Implications
To resolve this, the Judiciary is recommending a specific amendment to the Constitution. The proposal suggests that, notwithstanding the current rules in subsection (2), any person who has reached the retirement age but remains capable of performing their duties should be eligible for reappointment.
This change would effectively align the tenure of local judges with the “spirit” of subsection (1), allowing the Judicial Service Commission to evaluate judges based on competence and health rather than a calendar date. By removing the automatic termination of contracts at 75, Fiji could retain its most experienced legal minds while continuing to recruit the necessary international talent.
Beyond the senior bench, Justice Temo also used the submission to look toward the future of the local judiciary. He urged young local High Court judges to continue proving their capabilities, signaling that while he is fighting for the longevity of senior judges, the ultimate goal is a robust, self-sustaining local judiciary that does not rely solely on foreign expertise.
Disclaimer: This article is provided for informational purposes only and does not constitute legal advice.
The Constitution Review Committee is expected to evaluate these submissions as part of a broader assessment of Fiji’s governing documents. The next step in the process will involve the committee’s deliberation on which recommendations will be formally proposed for constitutional amendment.
We invite readers to share their perspectives on judicial independence and retirement ages in the comments below.
Related reading
