Case Law: Can Legal Practioners in Fiji who have been Sanctioned Qualify to Hold the Office of a Judge or Judically Appointable Public Office?
By Feizal Haniff, Tomasi Tuitoga and Ruth Garry
Ref: The Matter of Section 91 (5) of the Constitution of the Republic of Fiji [2024] Miscellaneous Action No. 0001 of 2024.
Introduction
Haniff Tuitoga appeared in the Supreme Court in Fiji on 19 June 2024 to argue this important constitutional case. The firm partners, Feizal Haniff and Tomasi Tuitoga, represented the Attorney General's Chambers in this matter.
Justice Alipate Qetaki was appointed as a Judge of the Court of Appeal by the Judicial Services Commission on 17 April 2023. Mr John Rabuku was appointed the Director of Prosecutions by the Judicial Services Commission on 10 October 2024.
Prior to their respective appointments, both Justice Qetaki and Mr Rabuku were the subject of separate disciplinary proceedings before the Independent Legal Services Commission.
The validity of their appointments were questioned by various groups including the Fiji Law Society taking into account Sections 105(2), 114(2),116(4) and 117(2) of the Constitution of the Republic of Fiji.
The panel of judges included the Honorable Mr. Justice Brian Keith, the Honorable Mr. Justice Terence Arnold and the Honorable Mr. Justice William Young.
Questions before the Supreme Court
The questions before the Supreme Court were as follows:
Whether a legal practitioner who has been found by the Independent Legal Services Commission to have engaged in unsatisfactory professional conduct or professional misconduct under section 121 (1) of the Legal Practitioners Act 2009 is ineligible:
to be appointed as a Judge under s 105 of the Constitution; or
to hold any of the various public offices to which the judicially appointable requirements applies.
Whether in light of the findings of the Independent Legal Services Commission in Chief Registrar v Alipate Qetaki [2017] FJILSC 9, Justice Alipate Qetaki is qualified to hold office as a Judge of the Court of Appeal?
Whether in light of the Independent Legal Services Commission’s findings in Chief Registrar v John Rabuku [2013] FJILSC 6, Mr John Rabuku is qualified to hold the office of Director of Public Prosecutions?
Opinion of the Supreme Court
The Supreme Court delivered its Opinion on 18 June 2024 stating that section 105(2)(b) of the Constitution was ambiguous and that the words, “found guilty of any disciplinary proceeding involving legal practitioners whether in Fiji or abroad” in that section should be interpreted to mean “sanctioned for professional misconduct in any disciplinary proceedings involving legal practitioners whether in Fiji or abroad”.
The Supreme Court accepted that both Justice Qetaki and Mr Rabuku, were subject to and pleaded guilty to disciplinary proceedings before the Independent Legal Services Commission. However, the Supreme Court interpreted Section 105 (2) b) of the Constitution as applying if a legal practitioner was sanctioned for the misconduct; in other words, a penalty was imposed after the finding of guilt. In the case of Justice Qetaki, although he pleaded guilty no sanction was imposed up him by the Independent Legal Services Commission whereas for Mr Rabuku, he pleaded guilty and the Independent Legal Services Commission imposed a sanction of suspension and fine against him.
The Supreme Court opined as follows:
Answer to Question 1:
“A legal practitioner who the Independent Legal Services Commission is satisfied has engages in unsatisfactory professional conduct or professional misconduct under section 121 (1) of the Legal Practitioners Act 2009 will be disqualified from judicial appointment by the disciplinary proceedings disqualification in section 105 (2) (b) of the constitution only if sanctioned for the misconduct.”
Answer to Question 2.
“Justice Alipate Qetaki is qualified to hold office as a Judge of the Court of Appeal in terms of section 105 (2) (b) because he was not sanctioned for professional misconduct.”
Answer to Question 3
“Mr John Rabuku is not qualified to hold office of Director of Public Prosecutions because he is not qualified to be a judge, as required by section 117 (2) of the Constitution. He is not eligible for judicial appointment by virtue of the disciplinary proceedings disqualification in section 105 (2) (b) because he was sanctioned for professional misconduct in a disciplinary proceeding.”
For any questions regarding this case, please contact us.
Haniff Tuitoga is a proud member of Pacific Legal Network, the leading provider of legal services in the Pacific region.
Comentários