Fiji Supreme Court hearing focused on whether the Constitution can evolve with the people’s will
Australian senior counsel Bret Walker today opened submissions for the State in a landmark constitutional reference before Fiji’s Supreme Court, arguing that the Constitution must reflect the will of the people.
Walker framed the inquiry around two core features of Fiji’s constitutional framework: parliamentary democracy and the rule of law, to be sustained together in the service of self-government. He said democracy hinges on the people’s capacity, through regular elections and their elected representatives, to amend their own constitution. To deny that power, he argued, would undermine not only democratic principles but the voters’ dignity.
“Parliament is the organ under the Constitution for lawmaking on behalf of the people,” Walker asserted, noting that Parliament has already shown its role by attempting to pass a proposed amendment with the support of 40 of 55 MPs. He stressed that it is Parliament, and not a fixed minority, that should shape the proper, non-contradictory position on constitutional change.
A central point of Walker’s submissions was the so-called “double entrenchment” within Fiji’s 2013 Constitution, which requires a two-thirds parliamentary majority to approve changes followed by a referendum. He described the higher, three-quarters threshold now at issue as an obstacle that may be incompatible with core democratic principles. “When I say prohibited, the Constitution says, and you can’t alter that prohibition,” he explained, arguing that such provisions can be antithetical to democracy and the people’s sovereignty.
Walker questioned why the amendment threshold was increased to three-quarters and suggested the rise bears little relation to other constitutional provisions, appearing arbitrary. He also contrasted the final form of the 2013 Constitution with the more participatory approach championed by the Yash Ghai Constitutional Commission, which had recommended against a referendum and was ultimately sidelined. He noted that Fiji has not held a referendum, and cautioned that adding a referendum as a barrier to change is not a decision to be taken lightly.
Throughout the hearing, which was set to run for the day, Walker argued that the proposed three-quarters requirement has been viewed, by many at the time of drafting, as a deliberate hurdle to constitutional change. He urged the court to consider whether such a threshold respects the people’s democratic rights and the constitutional framework’s intent.
The proceedings are taking place as part of a broader, ongoing national conversation about constitutional reform. Interventions from political parties, civil society groups, and legal institutions are expected, with the full bench weighing how the amendment provisions should operate in light of democratic legitimacy and public participation.
Context from related developments shows the government has repeatedly sought judicial guidance to interpret and apply the amendment provisions in the 2013 Constitution, with discussions centered on sections 159 and 160 and the overarching hurdle posed by the supermajority requirement. Senior counsel Bret Walker’s involvement underscores the seriousness with which Fiji is pursuing clarity on how to reconcile a robust democratic process with the legal safeguards embedded in the constitution. If the court finds the current mechanics unconstitutional or unduly restrictive, it could open pathways for reforms that better reflect the people’s will while preserving legal safeguards.
Outlook and value-added notes
– This case could redefine how easily constitutional changes can be pursued in Fiji, potentially affecting the balance between parliamentary authority and popular consent.
– A ruling in favor of more accessible amendment processes might spur broader, more participatory reform efforts and public engagement in constitutional dialogue.
– The proceedings reflect a broader aim to align Fiji’s governance with contemporary expectations of democracy, human dignity, and inclusive participation.
Key takeaways for readers
– The core question is whether Fiji’s 2013 Constitution can be amended through Parliament and referendum in a way that truly reflects the people’s will.
– Walker argues the current three-quarters threshold and referendum requirement may undermine democratic legitimacy and the ordinary understanding of democracy.
– The case continues to unfold with multiple interveners and a schedule that could shape Fiji’s constitutional reform trajectory for years to come.
Overall, the hearing signals a pivotal moment in Fiji’s constitutional evolution, as the courts weigh the tension between strong legal protections and the democratic imperative for meaningful public participation. The outcome could influence how future reforms are framed to better capture the voices of all Fijians, while safeguarding constitutional stability.
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