Judge Justice and Acting DPP Appointments Under Fire

The appointment of Fiji Courts of Appeal Judge Justice Alipate Qetaki and Acting director of Public Prosecutions, John Rabuku is ineligible.

This is the argument made by the Fiji Law Society (FLS) and the Government in court yesterday.

Representing the office of the Solicitor General, Feizal Haniff and FLS lawyer Martin Daubney, yesterday questioned the validity of the two appointments.

Judge Justice Qetaki was appointed as a Fiji Courts of Appeal Judge on April 17, 2023, while Mr Rabuku was appointed as Acting DPP on October 10, 2023.

A miscellaneous action was filed by the government at the Supreme Court seeking an interpretation of the appointment made by the Judicial Service Commission.

The commission is made up of: 

•  Chief Justice
•  Fiji Courts of Appeal’s President
•  Solicitor-General
•  A legal practitioner and one that is not a legal practitioner; both appointed by the President on the advice of the Chief Justice following consultation by the Chief Justice with the Attorney General.

All parties appeared before Supreme Court Judge Justice Terence Arnold, Justice William Young and Justice Brian Keith who joined the hearing from England via zoom at the Supreme Court in Suva yesterday.

According to action before the court, Justice Qetaki’s appointment did not correspond with Section 105 (2) (b) of the 2013 Constitution and Section 114 (2) while Acting director of Public Prosecution’s John Rabuku appointment did not correspond with Section 117(2) of the 2013 Constitution.

During the proceedings, Mr Haniff told the court that there was a broader definition to Section 105 (2) (b) of the Constitution and that there is an overarching requirement for the appointment of judicial officers.

He reiterated that sub section (2) (a) (b) provided the bare minimum requirement, however there were other requirements apart from these that candidates needed to fulfill in order to be given the position.

According to Section 105(2) (a) (b) of the Constitution: - 

A person is not qualified for appointment as a Judge unless he or she-

(a) holds or has held a high judicial office in Fiji or in another country prescribed by law or;

(b) 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.

He argued ‘guilty of disciplinary proceedings’ meant they were found guilty of a disciplinary offence in a disciplinary proceeding which brought in to question why Legal Service Commision did not write Justice Qetaki’s names in the Register after they were found guilty of their sanctions.

Mr Daubney sharing the same sentiments said the two men have only been admitted for eight years.

Justice Qetaki’s lawyer, Anil Singh argued that his client’s appointment was indeed credible given that his offenses were not serious matters but that of a mistake.

The same sentiments was shared by Independent Legal Services Commission (ILSC) lawyer, Semi Leweniqila and Fiji Human Rights Commission lawyer, Pravesh Sharma.

He agreed with Justice Arnold who said Justice Qetaki’s conviction was a trivial matter as he opened a bank after being told to do so.

He said a statement was given by the bank who actually verified it and apologised as it was their fault.

He said Section 105 (2) (b) was an ambiguous one as it was based on the Commissioner’s findings.

Mr Singh has also argued in court that so far, the other parties have not challenged the competency of his client.

This was set out in Section 105 (1) of the 2013 Constitution which states: -

The making of appointments to a judicial officer is governed by the principle that judicial officers should be of the highest competence and integrity.

He said nowhere in any of the written or oral submissions made by the other parties has it challenged his client’s competence, which means he is well qualified, competent and ethical individual.

He also said that the government and the Fiji Law Society have hung their head on the Commissioners findings.

Mr Leweniqila argued that both men had satisfied the process requirement under Section (2) (b).

Mr Sharma raised in court that Section 7 (5), 20 and 32 of the 2013 Constitution indicated that they should not be removed just because of their trivial conviction.

He said if in criminal matters, which are more serious offenses, have rehabilitations offered to them, why not these two men.

After all parties made their submissions, the court was then adjourned to next Friday where a ruling will be heard.

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