Court to rule in Constitution matter in June

The Supreme Court will rule and give its opinion in a miscellaneous action, referred by Cabinet for an opinion, 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 later in June

The matter was called before Justice Sir Terence Arnold and Justice Brian Keith yesterday.

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 with respect to 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.

Cabinet stated the provisions of the 2013 Constitution on the disqualification from office for potential members of the Judiciary, and holders of the position of Director for Public Prosecutions and other constitutional offices have been a matter of public discussion and disagreement.

Also, the Fiji Human Rights and Anti-Discrimination Commission and the Fiji Law Society have been served at the direction of the court in this case.

In the Supreme Court yesterday, former Attorney General, Aiyaz Sayed-Khaiyum and former Supervisor of Elections, Mohammed Saneem applied to be interveners in the case.

Feizal Hannif is representing the applicant (Office of the Solicitor-General), senior lawyer Anil Jason Singh is representing Justice Alipate Qetaki, Parvesh Sharma is appearing for the Human Rights Commission and Richard Naidu is appearing for the Fiji Law Society.

The Supreme Court will rule to include Sayed-Khaiyum and Saneem as interveners in the case tomorrow at 9.30 am.

The Court has also scheduled to hear the matter on the 19^th and 20^th of June to provide its opinion 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 matter will be called before Justice Sir Terence Arnold, Justice Brian Keith, and Justice William Young for a hearing, later in June.