Lawyer Feizal Hannif (left) and Suva attorney Richard Naidu head to the courtroom

The Supreme Court has refused an application by former Attorney General, Aiyaz Sayed-Khaiyum and former Supervisor of Elections, Mohammed Saneem to intervene in a case.

This is in relation to a matter where Cabinet has made a referral to the Court concerning the interpretation of section 105(2)(b) of the Constitution.

This is 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.

The context in which that opinion was sought relates to the appointment of John Rabuku to the office of the Director of Public Prosecution and Alipate Qetaki to the office of the Judge of Court of Appeal.

At a previous hearing the Court ordered the Reference to be served on Rabuku and Justice Qetaki as well as on the Fiji Law Society and the Fiji Human Rights and Anti-Discrimination Commission.

Aiyaz Sayed-Khaiyum

Sayed-Khaiyum and Saneem had applied to join in the proceedings as interveners.

Lawyer, Feizal Hannif is representing 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.

Sayed-Khaiyum and Saneem are being represented by Gul Fatima.

Saneem made submissions stating that he has recently been charged with a criminal offence which he claims was sanctioned by Rabuku in his capacity as Director of Public Prosecution.

He contends that a finding that Rabuku was not eligible to hold that office would have an impact on his own criminal proceedings.

The Judges said that this argument raised two different issues, one is whether Rabuku was eligible for appointment and other relates to the validity of any decisions he made following his appointment but before any ruling that he had not been eligible for appointment.

They said that the real question is whether someone in Saneem’s position as a person affected by a decision made by Rabuku during his tenure as DPP has anything in particular to contribute to the debate.

Aiyaz Sayed-Khaiyum

Sayed-Khaiyum’s application to be joined as an intervener was based on several ground.

This includes his background as former Attorney General and Minister for Justice under various governments from 2007.

He has extensive experience of both Judicial Services Commission appointments process, drafting and adopting 2013 constitution

Sayed-Khaiyum submitted that the court would be assisted by his legal submission in relation to the philosophy, background, drafting, purpose, application and intended interpretation of the Constitution.

He also submitted that because he is facing criminal charges sanctioned by one of the public officers referred to in the Reference, the Director of Public Prosecutions, he has a particular interest in the issues raised by the Reference.

The Supreme Court Judges in the ruling stated that they do not see Sayed-Khaiyum as being in any different position from Saneem or indeed anyone else affected by decisions made either by Rabuku personally or in his name while acting as Director of Public Prosecutions.

Supreme Court Judges Justice Brian Keith and Justice Terence Arnold in their ruling highlighted that there has been an increasingly benevolent approach to standing in recent years.

The judges stated that it is nowadays less important for a prospective intervener to show that they are directly affected by the outcome of the case.

The Judges in their ruling stated that there are several reasons why such an approach would not be appropriate in this case.

They said that they are concerned in the Reference with a specific aspect of the constitution namely the interpretation and application of Section 105(2)(b) of the constitution.

They said that they acknowledge that the constitution requires for appointment as a judge and that there may well be some background as to why that requirement applies in relation to those offices but that does not bear on the fundamental issue of interpretation raised by the Reference.

The Supreme Court Judges also said that as they understand the 2013 constitution was not the result of the type of public process that proceeds the adoption of the United States constitution.

They said rather it was the work of a relatively small group of officials of which Sayed-Khaiyum was one.

They said that if they were to grant him leave to assist the court with matters of background they would also have to seek the input from other members of the group.

They said that this is because no matter how hard he tries Sayed Khaiyum cannot be dispassionate given his personal interest in the outcome of the Reference.

They said allowing evidence of this type would be inconsistent with the nature of the Reference.