Supreme Court to look at disqualification criteria

The Supreme Court will hear a miscellaneous action, referenced by Cabinet for an opinion from the Supreme Court on matters concerning the interpretation and application of Sections 105(2)(b), 114(2), 116(4) and 117(2) of the 2013 Constitution of the Republic of Fiji.

The motion seeks further direction on how the parties should present facts and issues for the determination of the court; any other directions which the court deemed necessary; and costs of and incidental to this reference be borne by each party to the application.

The circumstances giving rise to this reference are:

1. The Constitution provides for the qualification of certain persons to hold certain offices. The constitution also establishes a shared disqualification criterion in respect of appointments to certain offices. Essentially, the disqualification stipulates that individuals cannot hold office if found guilty in disciplinary proceedings concerning legal practitioners, whether conducted by the Independent Legal Services Commission (ILSC) or any other relevant body. This disqualification is mentioned explicitly in sections 96(2)(b), 104(1)(d)(ii), 1 05(2)(b) and 105(3)(b) of the Constitution. It also extends to officers where the qualifications of a Judge are required for appointment as seen in sections 45(2)(b), 114(2), 116(4), 117(2) and 120(3) of the Constitution.
2. The ILSC, established under the Legal Practitioners Act 2009 (LPA), is entrusted with the function of adjudicating disciplinary matters involving legal practitioners, although there is no explicit authority to pronounce guilt.
3. On 18 April 2023, Justice Alipate Qetaki was appointed as Judge of the Fiji Court of Appeal. However, on 18 April 2017, Justice Qetaki was recorded as having “pleaded guilty” to two charges of professional misconduct contrary to section 3(1) of the Trust Accounts Act 1996 and sections 83(1)(h) and 82(1)(a) of the LPA leading the ILSC to find both counts proven.
4. On 10 October 2023, John Rabuku was appointed Director of Public Prosecutions. However, on 30 July 2013, Mr Rabuku was charged with professional misconduct contrary to section 81 (1)(g) of the LPA. The ILSC found the charge established.

The motion also stated that according to the affidavit of Susan Kiran, Secretary to the Cabinet, filed with the motion, established that the Cabinet had complied with the procedural requirements of Section 91(5) of the Constitution.

The Office of the Solicitor-General has retained the services of Feizal Haniff of Haniff Tuitoga to represent the Government.

The matter will be called for mention at the Supreme Court in Veiuto Court Complex on April 24.