The Supreme Court will give their opinion on June 28th on the matter where Cabinet has made a referral to the Court concerning the interpretation of section 105(2)(b) of the Constitution, in particular, whether an Independent Legal Services Commission finding in a disciplinary proceeding instituted against a legal practitioner, is consistent with the intended finding of guilt in the constitutional provisions.
This opinion will determine the interpretation on whether a person found guilty by the Independent Legal Services Commission is disqualified or eligible to take up positions like a judge, the Attorney General and the DPP.
It was heard in the Supreme Court today that Justice Sir Terence Arnold, Justice Brian Keith and Justice William Young will be presiding over the matter, and the hearing will be held on 19th and 20th June.
According to section 105(2)(b) of the Constitution, a person is not qualified for appointment as a Judge unless he or she has had not less than 15 years post-admission practice as a legal practitioner in Fiji or in another country prescribed by law, and has not been found guilty of any disciplinary proceeding involving legal practitioners whether in Fiji or abroad, including any proceeding by the Independent Legal Services Commission or any proceeding under the law governing legal practitioners, barristers and solicitors prior to the establishment of the Independent Legal Services Commission.
Cabinet says 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, including between the Fiji Law Society and the Acting Chief Justice.
The Fiji Law Society had also written to Prime Minister, Sitiveni Rabuka last year expressing its concern regarding the planned appointment of Filimoni Vosarogo as Attorney General of Fiji at the time, and requested the Fiji Government to withdraw Vosarogo’s announced appointment as Attorney General.
The Society noted that it is a matter of public record that Vosarogo, as a legal practitioner, pleaded guilty in a number of disciplinary proceedings before the Independent Legal Services Commission.
There were also questions raised about certain judicial appointments and the appointment of the Acting DPP.
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.
Former Attorney General, Aiyaz Sayed-Khaiyum and former Supervisor of Elections, Mohammed Saneem have applied to be interveners in the case, and the decision will be made on Friday.
Saneem says Acting DPP, John Rabuku has sanctioned a charge against him and he intends to challenge Rabuku’s position in that he has been found guilty by the Independent Legal Services Commission.
He also says there is a risk that this could be seen as an intervention by cabinet in judicial proceedings. Saneem says the cabinet does not deal with the appointment for judges or the DPP.
He adds in the event the court finds the appointment illegal, the validity of his action will also be illegal and so an affected person has the right to appear in the proceedings.
Sayed-Khaiyum's lawyer, Gul Fatima says Sayed-Khaiyum has also been charged where the charges were sanctioned by the Acting DPP but it should not be seen in the same light as Saneem’s application.
She says Sayed-Khaiyum is the former Attorney General and as someone involved in the drafting of the Constitution, can provide the rationale behind the provision.
She says there is no muddying the waters here.
The lawyer from Haniff Tuitoga Lawyers, Feizal Haniff is representing the applicant on behalf of the Solicitor General’s Office, Anil 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.
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