A Fiji Supreme Court constitutional reference hearing heard competing views on how the 2013 Constitution should be interpreted and amended, with constitutional expert Andrew Butler warning against interpretations that would weaken the protections surrounding constitutional amendments. Butler argued that adopting a more permissive approach to amendments could undermine the document’s legal and democratic integrity, remarks delivered in response to submissions from State Counsel and the National Federation Party during the hearing.
Butler cautioned that the State’s suggestion to interpret the Constitution as allowing a simple parliamentary majority to amend it would bypass other protections meant to safeguard the system. He also dismissed the National Federation Party’s proposal to replace the current three-quarters majority plus referendum requirement with a two-thirds parliamentary majority and no referendum, contending that such a change would weaken safeguards compared with Fiji’s earlier constitutions. He noted that the Ghai Commission’s 2012 recommendation for greater citizen involvement—including the idea of a National People’s Assembly to participate in constitutional amendment processes—shouldnot be undermined, and he argued that referring to referendums as non-traditional or non-Commonwealth practices overstated deviations from regional and international norms.
As the court weighs reform options and the legitimacy of the 2013 Constitution, Butler stressed the need to uphold the rule of law, maintain historical continuity, and ensure meaningful public involvement in constitutional matters.
In parallel submissions, National Federation Party lawyer Jon Apted proposed a “blue pencil” approach, arguing the court could recognize the Constitution as a whole while invalidating specific provisions that conflict with fundamental democratic principles. Apted suggested that, if the court recognizes parts of the Constitution, it should apply principles drawn from customary international law—especially democracy and self-determination—and strive for a balance between rigidity and flexibility to meet the people’s evolving needs. He acknowledged concerns about removing the referendum requirement but suggested that, if the court decides otherwise, a two-thirds majority with a retained referendum might still be acceptable, and he floated a version of the rule that would strike out the three-quarters threshold.
Meanwhile, Simione Valenitabua, representing the People’s Alliance Party, urged the court to scrutinize the 2013 Constitution’s legitimacy and to consider restoring the 1997 Constitution. Valenitabua argued that the Party’s collaboration with the 2013 framework could be misread as legitimate support, and he suggested invoking constitutional remedies under Section 91(5) to challenge the document’s validity. Quoting a Fijian proverb, he pressed the court not to allow the state to “sink” under what he termed an illegitimate constitution, saying the cabinet’s procedural path did not legitimize the 2013 framework. He asserted that the entire document could be void from inception and urged the court to restore the rule of law by reviving the 1997 Constitution, citing precedent in Fiji v Prasad and Fiji v Qarase to support the view that the 1997 framework remains the lawful supreme law.
The hearing, part of a broader, ongoing dialogue about Fiji’s constitutional future, continues to attract attention from legal scholars and political actors who seek a governance framework that better reflects public will, accountability, and contemporary needs.
Context and outlook
– The case sits within a wider debate on whether Fiji’s amendment process should be made more accessible or remain tightly guarded by supermajority and referendum requirements.
– Related discussions in the public and legal sphere have highlighted proposals such as lowering thresholds for amendments and preserving public involvement, while others emphasize stability and continuity with past constitutions.
– Observers note that the proceedings reflect a push and pull between reform-minded voices and those urging caution to safeguard the rule of law and democratic legitimacy.
Summary
The Supreme Court is weighing whether to preserve the higher thresholds and public referendum requirements for constitutional amendments or to adopt reforms advocated by some parties that would streamline amending the 2013 Constitution. Key arguments center on protecting democratic principles, ensuring public involvement, and considering the potential re-emergence of the 1997 Constitution as the lawful framework.
Potential value for readers
– Provides insight into the core legal and constitutional questions driving Fiji’s reform debate.
– Highlights positions from prominent legal figures and political parties, offering a sense of the arguments shaping the country’s constitutional discourse.
– Signals that the path forward remains under active judicial consideration, with implications for governance, accountability, and citizen involvement.
Editorial note
Please emphasize the ongoing nature of the hearing and the broad spectrum of viewpoints, from preserving strict amendment safeguards to exploring more flexible, citizen-inclusive approaches. The discussion underscores the central tension between reform and stability in Fiji’s constitutional evolution.
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