The Court of Appeal has today allowed the appeal filed by the State against the decision of the High Court with respect to the appointment of the Head of School at Vatuvonu Seventh Day Adventist College (“SDA College”).
The Court of Appeal has wholly set aside the decision of the High Court which had 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 effect of this High Court decision was that Government was unable to appoint the most meritorious candidate at the SDA College, given the insistence of the trustees of SDA church that only a person of SDA faith must be appointed by the State, as well as be funded by the State.
In this landmark judgment, 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 State must protect equality, human rights, secularism and democracy which includes religious liberty. These are all legitimate State goals in the pursuit of the vision which the Preamble sets.
The Court of Appeal 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. …
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. That would be tantamount to a denial of their equal worth… the Constitution, in essence, is the beacon which steers the State clear of evolving in either of the above two directions.
In welcoming the judgment of the Court of Appeal, the Honourable Attorney-General, Mr Aiyaz Sayed-Khaiyum said, “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. 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.”
In overturning the decision of the High Court, the Court of Appeal held as follows:
-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 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. 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;
-If the State provides teachers to any school, then it must select and appoint those teachers on merit only and without regard to any religion or religious belief;
-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;
-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; and
Consequently, the Court of Appeal has 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.
Mr David Bennett QC and Mr Andrew Tokeley QC from Australia appeared for the SDA College, while the State was represented by the Solicitor-General, Sharvada Sharma and his team.