Justice Qetaki eligible to be Court of Appeal Judge, Rabuku ineligible to be DPP - Supreme Court

The Supreme Court of Fiji has concluded that Justice Alipate Qetaki is eligible for appointment as a Judge of the Court of Appeal but John Rabuku was ineligible to be appointed as Director of Public Prosecutions.

This is in regards to where Cabinet had 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.

Supreme Court Judge Justice Terence Harnold says in 2023, Rabuku was appointed as the DPP and Qetaki was appointed as a Judge of the Court of Appeal.

He says their eligibility for appointment was questioned in some quarters.

Justice Terence says whether they had been eligible for appointment depended on the proper interpretation of a particular provision in the Constitution.

Justice Terence says the Constitution sets out the conditions for eligibility for appointment on a number of important offices and persons may be appointed to those offices if they are qualified to be appointed as a judge.

He says that includes the Office of the Director of Public Prosecutions.

He says the route to be eligible for appointment as a judge is that the person has been in practice as a legal practitioner for at least 15 years and that the person have not been found guilty of any disciplinary proceeding involving legal practitioners whether in Fiji or abroad.

The judge says Justice Qetaki had practiced as a legal practitioner for not less than 15 years and there was no suggestion that it did not apply to Rabuku as well.

He adds however, they had both admitted professional misconduct in disciplinary proceedings before the Independent Legal Services Commission.

He says Rabuku's conduct had been described by the Commission as very serious indeed and he was publicly remanded, suspended from practice for three months and fined $500.

Justice Terence says the view which the Commission took of Justice Qetaki's conduct was very different.

He says Justice Qetaki failed to ask the Attorney General's approval to open a trust account in connection with his legal practice as required by the Trust Accounts Act but the bank to which Justice Qetaki had applied for a trust account, opened the account before that approval had been obtained.

He further says the Commission had said that Justice Qetaki would not have contravened the Trust Accounts Act at all if the bank had not opened the account prematurely.

Justice Terence adds in the light of that, the Commission decided that this was not a case for any sanction to be imposed on Justice Qetaki.