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In re Application for admission as a Barrister and Solicitor by Shahin Rafique Ali [2014] FJHC 39; Miscellaneous Proceedings 15.2014 (6 February 2014)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Miscellaneous Proceedings No. 15 of 2014

IN THE MATTER
of the Legal Practitioners Decree 2009

AND IN THE MATTER
of the Barristers and Solicitors (Admission) Rules

AND IN THE MATTER
of an application for admission as a Barrister and Solicitor by
SHAHIN RAFIQUE ALI
PETITIONER

Date of Hearing : 3rd February 2014
Date of Judgment : 6th February 2014
Counsel for the Petitioner : Ms B. Narayan
The Objector [Ms A. Chand] : In person

Counsel for the Legal Aid Commission : Ms P. Prasad
Counsel for the Chief Registrar : Mr. A. Chand

JUDGMENT

[1] The Petitioner seeks admission to the Bar. The objector, Ms Anishini Chand, says he should not be admitted. She and the petitioner were fellow students at the University of the South Pacific following the Professional Diploma in Legal Practice course in the Final Semester of 2013. She makes certain allegations against him concerning his conduct during the course and as an employee of the Legal Aid Commission. He denies impropriety.

[2] Apart from the factual resolution of the allegations, these proceedings raise the question as to how far the admitting authority should delve into matters not yet resolved by other courts or authorities and which, depending on the outcome of the factual inquiry, may form the basis for an allegation that a petitioner is not a fit and proper person to be admitted.

[3] On 15th January 2014 the Petitioner filed his petition for admission in the High Court of Fiji. He filed with it an affidavit verifying the petition. On 17th January 2014 he filed a further affidavit in which he confirmed the placing of an advertisement, the notice of his application for admission. The contents of the petitioner’s affidavit verifying and petition are unremarkable. They comply with the Barristers and Solicitors (Admission) Rules and the qualification criteria of the Legal Practitioners Decree. No objection is made to any evidential or procedural matters arising from those filed papers.

[4] On 27th January 2014, 10 days after the advertisement appeared, that is within the time specified for the making of an objection, the objector filed with the High Court a statement of objection together with a verifying affidavit.

[5] On the 29th January 2014 the petitioner swore and filed an affidavit in response to the objector’s affidavit verifying and statement of objection.

[6] I had directed the Director of the Legal Aid Commission [LAC] to appear at the first call of these proceedings on 30th January 2014. He did so by counsel and has been represented throughout. On 29th January 2014 Mr. Sharvada Sharma the Chairman of the LAC swore and filed an affidavit in response. The Director, Mr. Sunil Sharma, did likewise.

[7] At first call, leave was granted for the objector to file an affidavit in response to those affidavits. The objector then filed two further affidavits, one in response to the petitioner and one to the Director LAC, both filed on 31st January 2014.

[8] Application was made at the hearing on 6th February 2014 to permit a late filing of the objector’s affidavit in response to the Chairman’s affidavit. After some argument, it was eventually agreed with counsel no objection would be taken to the late filing. Exhibited to the objector’s affidavit was however a video recording of an interview she had been granted by the Chairman on 9.12.13. At that interview the objector did not inform the Chairman that she was video recording their meeting on that day.

[9] Whilst disapproving of such a technique and the deception practised, Ms Prasad, counsel for the LAC stated that she would not object to the video recording being admitted into evidence. That was fair-minded of her. She said this course was taken in the interests of transparency and to permit the objector to articulate her case.

[10] In view of this concession I am not concerned in this proceeding to consider the admissibility of the evidence gained from such surreptitious harvesting. It must be remembered the inquiry is as to the suitability and fitness of the petitioner to be admitted to the status of legal practitioner. It is not an inquiry into the conduct of any other witness in the proceedings. It is not immediately obvious why the objector should have wished to video record her report to and discussions with the person who was the authority to whom she had gone for redress.

[11] In view of the Admission Ceremony fixed to take place on Friday 7th February 2014, at which both the petitioner and objector hope to be admitted, these proceedings had to be expedited. I am therefore grateful to counsel for their assistance in providing argument at short notice and for their consideration of, and submissions on, the issues arising.

Governing Procedure
[12] I had set out the procedure to be followed in these applications in the last such case – Brian Brijan Singh Misc. Proceedings No. 120 of 2012, 28th August 2013 at paras [4] to [6]. I set them out again here:

“[4] This is a show cause proceedings in which it is for the objector to establish on a balance of probabilities that the objection is made out and that the application for admission should not be granted [section 37(1)]. Without the grant of admission, a would-be practitioner is not entitled to practice [section 38]. He or she must first be admitted and have his name enrolled in the Roll of Legal Practitioners [formerly Barristers and Solicitors]. On the other hand it is for the Petitioner to establish that he is a fit and proper person and duly qualified to be admitted. The body to decide these issues is the Chief Justice as persona designata [section 34(1)].

[5] Section 35 of the LP Decree sets out the necessary qualifications for admission. I set out the section:

“35. A person shall be qualified for admission as a practitioner if that person is a fit and proper person to be admitted to practice as a practitioner in the Fiji Islands, and –

(a) has satisfactorily completed a course in the study of law approved by the Board and a programme or course of practical legal instruction and training approved by the Board; or

(b) that person has obtained from the Board a certificate that his or her educational qualifications are sufficient to qualify him or her for admission as a practitioner; and

(c) in addition to the requirements specified under paragraph (a) or (b), before making his or her application for admission as a practitioner in the Fiji Islands that person has resided in the Fiji Islands for a period of at least three months immediately prior to making his or her application for admission unless the Chief Justice for good reasons shall dispense with such residential requirements.”

[6] Putting aside the consideration of “fit and proper” for the moment, the Petitioner has satisfied (a), (b) and (c) of section 35.”

[13] Section 34(1) provides power to the admitting authority to admit to practice as a practitioner any person duly qualified in accordance with the provisions of the Decree. “Duly qualified” here must refer to the qualifications set out in section 35 (a), or (b), and (c) and also to the fulfillment of the requirement that the admittee is a “fit and proper person” to be admitted. As I have said earlier the objector is not suggesting section 35 (a), or (b), and (c) are not met. Her challenge is to the “fit and proper” requirement.

[14] The objector has filed her material making objection in a comprehensible form [section 37(2)]. The legislation does not insist upon the objection evidence being put into an affidavit, though such a form may lead to greater accuracy in that such evidence is contained in a statement on oath. It is anticipated that objections may be acceptable even if informal. Here the statement was verified by an affidavit, and subsequently there were several affidavits sworn and filed by the objector.

[15] The objector appeared at all of the court proceedings and was able to clarify several issues of fact. She was permitted to interject at times so to do and invited to make an address in summarizing her case at the conclusion. However she did not comment on the issues of law raised by other counsel.

[16] By virtue of section 38(1) the Chief Justice “shall ... admit the applicant”, “upon proof of the qualifications and suitability of the applicant.” The only impediment to the mandatory instruction to admit is where a qualified applicant fails to satisfy on the suitability, or where an objector is able to demonstrate to the standard “unless cause to the contrary is shown to his or her satisfaction...”

The Allegations of the Objector

[17] In the objector’s statement, 3 allegations emerge. I set them out in ascending order of significance.

Allegation 1

The Petitioner was still working that is carrying out work for his employer the LAC during the period of the USP Professional Practice course. An extract of a letter from USP was exhibited by the objector in her affidavit in reply to that of the Petitioner. This letter set out some of the conditions or expectations of the course staff. Under the heading “other PDLP Programme Matters” the following was stated:

“2.1 Employment

As this is an intensive programme, students are not permitted to engage in any form (of) employment, either full-time or part-time.”

Allegation 2

The objector stated [at para 12]:

“However, he had (been) using Government vehicle registered as “LACOM” for 21 weeks of PDLP. He has no right to be using a government vehicle for personal use such as coming for class. This is clearly an act of misusing government resources.”

Allegation 3
The Petitioner is the Business Operations Manager for the LAC based at Suva. It is alleged he was in conflict of interest in sitting on an interview panel for candidates seeking posts at the LAC. The objector gave reasons as to why this was unethical:

(a) he sat on the panel when on study leave;

(b) the persons to be interviewed were his classmates and friends;

(c) “Mr. Ali being close friends with Ms Krishlyn Chetty and her boyfriend Mr. Saif Shah short-listed and subsequently, interviewed them and gave them both a job at Legal Aid despite the fact that Mr. Shah’s academic performance is below average.”

(d) he personally delivered employment contracts to selected candidates on 6.12.13.

Allegation 1

[18] The nub of this allegation is that the Petitioner was in breach of the university course rule that students not undertake work full time or part time whilst pursuing the course.

[19] The course lasted 21 weeks. Once the breach came to the objector’s attention, why was this not reported to the university authorities, that is if the objector felt it was so serious and merited a report?

[20] Counsel for the petitioner has addressed me on the reason for this omission. It is said the objector would have made no complaint had she been successful in gaining a job with the LAC. When she did not obtain one, she then turned on the petitioner and levelled these accusations against him, hoping to prevent him from being admitted or at the very least to delay his admission and thus affect his seniority on the Roll of Legal Practitioners.

[21] Neither the Petitioner or the objector refer to any enmity or bitterness between them arising during their time together as students on the course.

[22] In his affidavit the Chairman stated that the Commission [LAC] gave its approval for study leave to allow the Petitioner to attend the course. A condition was made however that the Petitioner had still to undertake official duties either before or after classes including weekends. There were important projects to be handled which required the petitioner’s handling. They included the construction of the Sigatoka office and the preparation of the 2014 National Budget. The Chairman mentioned the opening of new offices also.

[23] An Administrative Officer as senior as the petitioner could not easily be spared in a rapidly expanding office such as the LAC, and one as heavily burdened with increased public tasks.

[24] No complaint was ever made to the university authorities. I have no idea whether a dispensation to the rule would have been granted if they had been informed officially. Weighing the matter up and assessing where the public interest might lie, it is impossible to say that permission would not have been granted. But it is more likely that the university staff would have been aware of the petitioner’s predicament and of the heavy
public service demands on the petitioner’s time. His situation was not that of the usual full time undergraduate or diplomate student.

[25] From this I cannot conclude that it has been shown to my satisfaction that the petitioner on this allegation is thereby not a fit and proper person.

Allegation 2

[26] Apart from the broad allegation of the petitioner coming to classes by Government vehicle, there was little detail provided. There were some obvious errors.

[27] The objector may have erred in the registration number. There is no vehicle registered with the LAC numbered LACOM as she insisted, though there is one numbered LACOM1. She said the vehicle was used throughout the 21 weeks. But what of the 4 weeks attachment away from campus, and what is her evidence on this?

[28] The complaint should not come as a primary, first instance, complaint to the Chief Justice. The complaint should have been made either to the Director LAC or to the Chairman. This would have caused a thorough detailing of the initial complaint to be taken down and then been followed by an appropriate investigation. Again, no complaint came in during the 21 weeks of the course. Complaint was only made after the objector had failed to secure one of the new posts at the LAC.

[29] It is clear from the affidavits of the Chairman, the Director, and of the Petitioner himself that realistically he could not be a full time student. For he was expected to carry on as Business Operations Manager, which included Human Resources at a time of significant expansion.

[30] If it were felt, based on a full complaint to the LAC, that the Petitioner had abused the use of the LAC vehicle, that is a matter for the LAC Board to investigate and to determine. At this stage there is no finding by the Board and it is not for myself the authority for admissions under the Decree to tell an independent commission how to run its
organization. That is not the jurisdiction accorded to the person designated to decide the admission of lawyers.

[31] As the evidence shows, both the Chairman and Director approved the taking of urgent official matters to the petitioner at his place of study, and averred in their affidavits to that effect.

[32] In the case of Franz Georg Keil, 8th January 1975, which I had referred to with approval in Christopher Thomas Pryde HBM30.08S 7th May 2008, Grant CJ had this to say of the role of the Chief Justice in these applications:

“I do not propose to recite the addresses in full, but it has been suggested on behalf of the Objector and I quote: “Once an allegation is made – no matter how frivolous – your Lordship must adjudicate on it”: and that; “Once the petition is challenged the Petitioner’s affidavit is not enough. He must go into the box and be cross-examined on it”. It has also been suggested on behalf of the Objector, and I paraphrase, that the Chief Justice should set himself up as a general inquisitor and court of inquiry and investigate all or any matters raised by the Law Society or any objector, however far-reaching or far-fetched, including the activities of the immigration authorities. I have also been asked to read into the Legal Practitioners Ordinance non-existent provisions regarding localization, citizenship and reciprocity, thereby usurping the functions of the legislature.”

[33] I am similarly not satisfied by the evidence in Allegation 2 or that it has been shown by the objector that the petitioner is not a fit and proper person.

Allegation 3
[34] The allegation that the petitioner sat on the interviewing panel when he was on study leave is of no merit and is to be disregarded.

[35] The allegation that the persons to be interviewed were his classmates and friends is not as straightforward. He was approached by the Chairman of the LAC Board to sit with 2 other panelists. The panel no doubt makes recommendations to the Board. But it is the
Board that has the duty of sifting the written applications, scrutinizing qualifications, and considering these along with the recommendations of the panel. The Board then makes the appointments. The Petitioner was in no position to promise anybody anything. This was wishful thinking.

[36] When the interviews were re-conducted, this time by Board Members, only one change was made in the appointees offered, that is that 5 of the 6 were again offered employment. The objector, for the second time, was not offered one of those posts.

[37] I do not propose to go into any of the arguments on applicant’s merits. If the Board had been in error that is not for challenge in these proceedings. It was agreed by the objector with the Chairman that points alone do not necessarily indicate the best candidate. Other matters, one of which would be the candidates performance in interview, could tip the balance one way or the other.

[38] It is not enough that a member of the panel selects a candidate who is a fellow barrister from the Bar. They may be known to each other professionally. Judges or Magistrates on interviewing panels may know the candidates who have appeared before them. That is not a ground for disqualification or recusal from the process. If that were so, the member of the Bar sitting on the Judicial Services Commission could never take part in the appointment process for Judicial Officers.

[39] (c) is not made out. The Petitioner denies close friendship and in any event he is not the appointing body. Delivery of contracts to USP students at the end of the semester cannot be described as being unethical. If the contracts were not delivered swiftly, candidates might look elsewhere for employment. It was convenient that the person in charge of Human Resources informally deliver the offer letters prior to break up and dispersal.

[40] This complaint is still with the Chairman. His inquiry is not complete. The objector was unable to meet the Chairman on 2 separate occasions, for not very satisfactory reasons given her keen interest in these allegations, and the limited availability of an official such as the Chairman who is also the Solicitor-General.

[41] The Chairman might conclude that in the circumstances existing at that time to avoid any complaint of too close a proximity to the candidates that he would not invite and appoint the Business Operations Manager to the advisory panels. But that is a matter for him.

[42] As matters stood, as they did for Lord Hoffman in Pinochet, when recusal was thought upon reflection to be right, it was not expected that Lord Hoffman would be found to be no longer a fit and proper person for judicial office. I cannot anticipate which way the full investigation might lead the Chairman.

[43] But whatever the outcome, I do not find that this last allegation is established either. The objection is rejected.

Conclusion

[44] It follows that I will grant the petition of the petitioner that he be admitted as a legal practitioner, and that I dismiss the objections filed.

[45] I was asked to make an order of costs against the objector. I find no powers to do so in the Decree. There was some naivety in the bringing of these objections. They were of course disturbing and should have been more carefully thought through. A great deal of work had to be brought to bear to respond. Allegations against reputation should never be lightly made not least because they bring much unnecessary distress to those wrongly accused.

[46] I admit the petitioner who will be formally sworn tomorrow.

A.H.C.T. Gates
Chief Justice

Solicitors for the Petitioner : Messrs. Lateef & Lateef
Solicitors for the Chief Registrar : Legal Practitioners Unit