Fiji’s constitution is once again at the center of a high-stakes legal question, as Australian constitutional lawyer Bret Walker told the Supreme Court that the document must reflect the will of the people. Acting as lead counsel for the State in a constitutional reference brought by the Cabinet, Walker outlined two core features of Fiji’s constitutional framework: parliamentary democracy and the rule of law, both of which he said must work together to uphold the legitimacy of self-government.
Walker argued that democracy, at its core, requires the people, through elections and their elected representatives, to have the power to amend their own constitution. Denying that power, he warned, would contradict democratic principles and undermine the voters’ dignity. He noted that Parliament, as the body representing the people, has already demonstrated its role by attempting to pass a Bill with the support of 40 of 55 MPs.
The Australian senior counsel has also argued that the 2013 Constitution’s so-called “double entrenchment” provisions may be incompatible with core democratic principles, describing them as unduly restrictive and lacking democratic legitimacy. Under these provisions, changes to certain constitutional clauses require not only a two-thirds parliamentary majority but also a referendum. Walker suggested that such a two-step barrier is an obstacle to the democratic nature of the constitution, asking why the rule would shift to three-quarters on this occasion.
In his submission, Walker drew a contrast between the final form of the 2013 Constitution and the more participatory process championed by the Yash Ghai Constitutional Commission, which was sidelined by the Bainimarama government. He argued that a constitution designed to be owned by the people should not be effectively hardwired to prevent ordinary constitutional reform.
The government’s legal strategy aligns with ongoing efforts to seek judicial guidance on the amendment provisions, a move that has been discussed in Cabinet circles for weeks. The cabinet’s appeal focuses on interpreting sections 159 and 160 of the 2013 Constitution, which govern the amendment process and have been described as presenting a very high threshold for change. Attorney-General Graham Leung has emphasized the aim of making constitutional reform more accessible and less stifling to necessary changes.
This legal route comes amid a broader push for constitutional reform and a governance framework that better reflects Fiji’s diverse population. Prime Minister Sitiveni Rabuka and Deputy Prime Minister Manoa Kamikamica have both spoken about the need for reforms that align with contemporary needs, and Walker’s involvement signals a serious, internationally informed attempt to clarify the path forward.
Key points and context to watch:
– The Cabinet’s reference seeks judicial clarity on how sections 159 and 160 operate and whether the current amendment rules unduly constrain democracy and popular sovereignty.
– The court process is expected to involve directions on how to proceed, with anticipated participation from a range of political and legal observers.
– The debate continues to hinge on balancing stability with democratic participation, and whether the court can offer a pathway that allows meaningful reforms while maintaining legal safeguards.
Commentary and analysis:
– This case highlights a fundamental tension in Fiji’s constitutional design: how to preserve stability and rule of law while ensuring the people’s right to shape their own constitution. Walker’s arguments underscore a conviction that constitutional change should be a reflection of the people’s will, not an impediment erected by procedural rigidity.
– If the court provides clarity that opens the door to easier amendments, Fiji could see a more participatory path to reform. If not, advocates for constitutional change may push for alternate avenues, including revisiting the overarching framework or the processes by which amendments are proposed and approved.
– The ongoing discussion also reflects broader regional debates about how best to design a constitution that remains responsive to citizens’ evolving needs while safeguarding constitutional integrity.
Summary: The case before Fiji’s Supreme Court, driven by Cabinet-initiated constitutional questions and supported by Bret Walker, centers on whether the 2013 Constitution’s stringent amendment rules—particularly the double entrenchment requiring a two-thirds majority and a referendum—respect the people’s will. With the government seeking judicial guidance under existing constitutional provisions, the proceedings could pave the way for clearer, more inclusive pathways to reform, or reaffirm the current thresholds that some critics argue stifle democratic change. The outcome will influence Fiji’s trajectory toward a governance framework that better embodies the diverse aspirations of its citizens.
Additional value and hopeful note:
– The discussions reflect a constructive national conversation about governance that emphasizes public participation, transparency, and adaptability. A clarified, accessible amendment process could empower Fiji to address evolving social and political needs while maintaining constitutional integrity. This case presents an opportunity for Fiji to demonstrate a commitment to a more inclusive democracy grounded in both rule of law and popular legitimacy.
Leave a comment