Valenitabua Disagrees With Fiji Law Society, Says Supreme Court Opinion Not Binding on Rabuku

Suva Lawyer Simione Valenitabua has waded in on the debate on whether Acting DPP John Rabuku should step down following the ruling by the Supreme Court that he was ineligible to hold the position.

Yesterday Attorney General Graham Leung and the Fiji Law Society President Wylie Clark called on Rabuku to honour and respect the ruling and step down.

However, Valenitabua says that since the Cabinet sought the opinion of the Supreme Court, the opinion merely assists the Cabinet in making decisions based on the interpretation and application of the 2013 Constitution.

“In my view, the Constitution is silent on the effect of such opinion given by the Supreme Court on a person like Rabuku who is aggrieved by the opinion. My opinion is different from the Supreme Court. In my view, Rabuku qualifies to be a Judge under s 105(2)(a) of the Constitution being a former Magistrate which qualifies as a high judicial office. Any previous disciplinary convictions would be irrelevant as a previous guilty finding is only a bar to appointment as a Judge under s 105(2)(b) of the Constitution.”

“The proceedings in Cabinet are confidential and I am of the view that the JSC has made a decision to appoint Rabuku as Acting DPP according to its interpretation of the Constitution. The correct constitutional procedure now would be for any person aggrieved by the decision of the JSC to appoint Rabuku (like the FLS) to apply for constitutional redress under s 44 of the Constitution alleging that the JSC has contravened the provisions of the Constitution in appointing Rabuku as Acting DPP according to the Supreme Court’s opinion,” Valenitabua argues.

“The Supreme Court opinion will only be used as part of the evidence in support of the redress application submitted by solicitors for the FLS because it is an opinion of mere evidential value and will need to be tested at trial provided Cabinet permits the use of the opinion by the Supreme Court by the FLS in court. As it stands, in my view, the opinion is relevant only to the Cabinet, is confidential and should not have been publicised, as it is an opinion sought by the Executive from the Judiciary, whose processes and proceedings are highly classified, privileged and confidential.”

“The JSC is a constitutional body that is not subject to the control of any other person or authority except a court of law. That court of law has not been moved yet to question whether the JSC contravened the Constitution on appointing Rabuku as Acting DPP. Its opinion is not a judgment with orders or declarations binding on anyone including the JSC. The JSC needs to be steadfast and not allow its procedures and processes to be mocked by the FLS or any other person,” Valenitabua added.

The Fiji Law Society disagrees.

“That kind of case is itself a rare event when the Cabinet of the country asks the Supreme Court to guide it on a matter of law. The reference reminds all of us that even the most powerful people in the land respect and defer to the expertise of the Supreme Court on the rules that govern all of us,” read a statement signed by President Wylie Clarke.

“The Supreme Court ruled that Mr. Rabuku was disqualified from appointment as acting Director of Public Prosecutions under the Constitution. In light of the Supreme Court’s clear opinion, the Fiji Law Society is deeply concerned that Mr Rabuku remains in office.”

“In a society governed by the rule of law, all must obey it. High public officials such as Mr. Rabuku, who is legally qualified and whose office is central to the administration of justice, have a consequently higher duty to obey the law and not to try to frustrate it. It is not acceptable for him to stand on some official process to avoid meeting his clear duty to obey the law. He must know what his duty is and he should immediately take the steps which are required to leave office.”

Valenitabua disputes this and says that the Supreme Court disqualified Rabuku from holding the substantive DPP position under section 117(2) of the Constitution and not as Acting DPP. On a literal interpretation of the constitutional provision, neither s 117(2) nor s 105(2)(b) applies to Rabuku. It applies to Pryde as incumbent (but suspended) DPP but not Rabuku as Acting DPP.

“In my view Rabuku can remain in office. The opinion of the Supreme Court makes no directory orders for Rabuku to step down as Acting DPP. It also did not follow normal judicial due process of being tested through evidence with facts and the application of relevant laws to the facts at trial leading to a pronouncement in Court. It should have been a closed court yet it was open to the public and the media. In my view the opinion emanating therefrom is not binding on anyone let alone Cabinet or the JSC. It is an opinion until affirmed and pronounced by a Court of competent jurisdiction dealing with a constitutional redress application under the Constitutional Redress Rules. It is a convention of Cabinet that no member of the public or media is allowed in Cabinet meetings where various experts are permitted to give their opinion. For the Supreme Court opinion to be publicised is a serious breach of that convention and protocol,” Valenitabua added

“I ask the question; what is the motive of FLS? From its latest barrage of criticism levelled against Rabuku and the JSC, it is fair to say that FLS wants everyone to religiously adhere to the Rule of Law and the 2013 Constitution. FLS should put their money where their mouth is, comply with the law and file a case in the High Court. It is not a political movement to be commenting on the appointment of Rabuku! In my opinion, Rabuku qualifies to be acting in the position of DPP until Pryde relinquishes the position,” Valenitabua said.

The Fiji Law Society maintains that the rule of law must be followed.

“Just as it was with Justice Alipate Qetaki (whose appointment was ruled lawful by the Supreme Court under the reference) the Society has no animosity against Mr Rabuku and it bears him no ill will. The Society’s only interest in this case is to ensure that Mr Rabuku, like everyone else in Fiji, honours and complies with the law,” the FLS said.

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