So it’s on. The Coalition is going to the Supreme Court to interpret the provision of the 2013 Constitution relating to appointments it has made that the Constitution declares unlawful .
Cabinet is using Section 91 (5) that says: “Cabinet may seek an opinion from the Supreme Court concerning the interpretation or application of this Constitution”. And it is presumably a specific request whether it can ignore the constitutional provision that it has violated with the appointment of Alipate Qetaki as a judge. Because it specifically mentions the section in the Constitution relating to judicial appointments in its announcement.
This provision – Section 105 (2) – is unambiguous in specifically barring Justice Qetaki from holding office. It says “ A person is not qualified for appointment as a judge unless he or she… 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”.
The Independent Legal Services Commission specifically found Alipate Qetaki guilty of professional misconduct, which axiomatically bars him from being a judge under Section 105 (2) of the Constitution. It’s all there in black and white. But the Coalition government doesn’t accept this provision and wants the Supreme Court to make a ruling that legitimises its violation of the supreme law.
While the announcement today doesn’t specifically refer to an appointment beyond that of a judge, the same provision applies to the illegal appointment of the Acting Director of Public Prosecutions, John Rubuku. He is also barred from holding the position of DPP under the terms of the Constitution. Because he too has been found guilty of professional misconduct. Precisely the same wording as in Section 105 (2) applies to him. He cannot lawfully hold the position.
And the same provision applied to Filimoni Vosarogo when the Prime Minister bowed to pressure from the Fiji Law Society to reverse his appointment as Attorney General last October because he had been found guilty of professional misconduct not once but three times by the Independent Legal Services Commission.
The Coalition wants a Supreme Court ruling that would enable it to get around the 2013 Constitution and appoint people to these senior offices of state who have been found guilty of professional misconduct. Yes, that’s the level to which public standards of probity have sunk in Fiji under the Coalition. And now that Cabinet has signed off on it, the Attorney General, Siromi Turaga, has the backing of the Prime Minister, Sitiveni Rabuka, the NFP leader, Biman Prasad, and the SODELPA leader, Viliame Gavoka, in pursing this course of action.
Under normal circumstances if the supreme law is to be obeyed, it would require a 75 per cent vote in the Parliament and a 75 per cent vote of the electorate to get Section 105 (2) changed. But these guys are going in the back door using Section 91 (5) that allows “cabinet to seek an opinion from the Supreme Court concerning the interpretation or application” of the Constitution.
What is likely to happen when the application comes before the Supreme Court in April? Be afraid, Fiji, be very afraid. Because in the same way that the Coalition has thumbed its nose at the Constitution and unlawfully appointed Justice Qetaki and John Rabuku, it has waged a full blown assault on the independence of the Judiciary.
The Acting Chief Justice, Salesi Temo, is a handpicked appointment of both Siromi Turaga and Sitiveni Rabuka. We know for a fact that he has been in regular communication with Siromi Turaga and has carried out his instructions in relation to the removal of the suspended DPP, Christopher Pryde. Both men are defying the Constitutional stipulation that a judicial tribunal be convened to hear the allegation of misbehaviour against Christopher Pryde for talking to the ousted AG, Aiyaz Sayed-Khaiyum, at a Japanese Embassy function last February.
We also know for a fact because the late Acting DPP, Ratu David Toganivalu, said so to a meeting of his staff that he was under intense pressure from Siromi Turaga and Salesi Temo to fast-track the prosecutions of those associated with the previous government, including Khaiyum. Justice Temo will be giving his ruling on March 14 on the application by John Rabuku – the illegal Acting AG – to overturn the acquittals of Frank Bainimarama and Sitiveni Qiliho by Magistrate Seini Puamau. (see Friday’s Fiji Times story below).
How confident can we be that the Acting Chief Justice – who is also President of the Supreme Court – is genuinely independent? How confident can we be that the Supreme Court will carry out its deliberations on the Constitution in April independently and free of undue influence or pressure from the executive? The answer – on the evidence thus far – is that we can’t. And that is deeply disturbing for anyone who believes in the independence of the judiciary and is already concerned about the current state of the rule of law in Fiji.
We are entering uncharted waters as a nation with a great deal of potential hazards just below the surface. Is the Coalition government going to all this trouble just to install a gaggle of miscreants in the offices of state? Why should it? If the Supreme Court backs it on this, it is much more likely to be the initial stages of a full blown assault on the Constitution, which we know that the Coalltion wants revoked altogether.
Does this include the provisions of a common and equal citizenry, a common identity and the secular state? You bet.
The answer – on the evidence thus far – is that we can’t. And that is deeply disturbing for anyone who believes in the independence of the judiciary and is already concerned about the current state of the rule of law in Fiji.-unquote
It took a while to decide, but here we are. The private lawyers/company the coalition pays top dollars to have finally completed the research, and decided let’s do this. Let’s fleece more dollars making a constitutional argument in what ordinarily be a futile rabbit hunt, but hey, we have a friendly partision judge. And either way there’s money to be made.
And the keepers of the constitution are cool with all the legal violations, constitution schemstitution.
Coalition seem oblivious to the suffering of common populace living in poverty and high inflation -the very people who put them there expecting a real change for the better. Violent crime, threats of roads and water supply shut down, land lease challenges, stagnating economy, nationalism, ethnic cleansing, overt racism, misplaced sense of entitlement (gcc) –the list is endless–are more important than the welfare of the people.
As to your above quoted poser GD, the answer from the legendary sage from New York, who sang: the answer my friend is blowing in the wind.
Far out….it won’t take much for all that Climate Finance to dissappear if the International Community even smells a dodgy Govt..even the UNDP won’t give the FDB more than 100k… And in walks the IMF to take over….first thing they will do is devalue the FJD…just ask anyone who was in PNG in the late 80s…
Baiman is the main culprit, he has sold out the Indians. Never trust this man and NFP.
They are only there for themselves, their families and friends.
Total 360 degree turn from your manifestos NFP and PAPI. You sure hoodwinked people that you were for everyone.
Politicians should be held to account for lying and misleading public. You don’t deserve to be holding office – it’s the people who put you there and now that you’re there you have forgotten about the people and too busy fulfilling your own agendas.
A true test of judicial independence and integrity in Fiji. I’m not feeling an A+ coming on.
Get ready. Pigs are about to fly in a Fiji and the supreme Court is about to rule that the appointment of the CJ, Qetaki and Rabuku are all legal.
Only in Fiji!!!
Fiji established the Supreme court in 1990. t’s comical to see Fiji make the transition. Lots of confusion for the laymen and even the local legal minds. Too hilarious for me.
Fiji has a long and winding road ahead. Fiji don’t have a generation that exists that’s trained in the way ithis Judicial system is heading. Not even for the Chief justice. Au sa loloma vakalevu. Most of us probably be six feet to see anything good come out if it..
Ignorance of the law is usually no excuse but in Fiji it seems like it’s required to govern.
Conflicts of interest abound, leading lawyers have failed and set their reputations more brightly ablaze than the Defence Club with a mixture of incompetence, greed and poor decisions not even the National Fire Authority could manage.
There is urgent need for grown ups to provide impartial non-conflicted legal advice to the government. As a proud Fijian I don’t think it’s too late. They just need to start governing for all and stop wasting time on “revenge” or perceived wrongs.
Indigenous Fijians have not had their rights or landowning diminished and the approach should now be:
1. Govern for all on an equitable basis meaning reversing the laughable decisions of the Fiscal Review Committee. It tried and it failed big time causing the government to look like a laughing stock. VAT should go down especially.
2. Kick SODELPA to the curb for being the complete shower of incompetents everyone knows they are, hold an election as required and PAP will win and sadly NFP will pay the price for listening to bad advice
3. Work separately on good systems that improve the economic well being of iTaukei without compromising the governance of the country for all
All of these things are achievable but only if they stop the incessant look backwards and trying to “fix up” the last lot. FFP are done there is no point in kicking a dead horse.
Move on people, there’s a country to govern and Fiji needs leaders to govern for all, as well as good governance.
God bless Fiji.
A good move by the Coalition Government to test the independent of our Judicial System – nothing wrong with that.
If the Supreme Court findings is against the appointments then the Coalition Government should reverse the appointments accordingly.
The main thing is to get the TRC done asap to heal the people of Fiji and our beautiful Fiji Islands
You don’t seem to understand that there is EVERYTHING wrong when the independence of the judiciary has been compromised. There is no impediment on the power of the executive and the rule of law is being violated. And again, on the basis of the Coalition winning government with just ONE VOTE on the floor of the parliament. That’s not democracy but an abuse of power that is ultimately a threat to every Fijian.
what will the TRC do? From memory, the last time the Qarase government was in power, they were trying to use the TRC as a means to free Speight and his associates.
Is the TRC going to be used this time to free all the pro-nationalists and Speight under the guise of “forgiveness” while those who were victims to these terrorists back in 2000 continue to suffer today?
And it is left to only a few unelected, dubious government court appointments to determine the legality of the outcome? And how old is this bloody constitution? Hahaha no wonder! Just call the dogs!