Amicus cautions against striking Chapter 11: Fiji’s constitutional order at stake
An amicus curiae told Fiji’s High Court that declaring Chapter 11 of the 2013 Constitution invalid would strip the document of its status as supreme law and unravel long-standing constitutional protections that have guided the country’s legal history. Andrew Butler contended that the State’s proposal to declare Chapter 11 inoperative is not plausible and would carry both macro and micro risks.
On the macro level, Butler explained, scrapping Chapter 11 could cause the Constitution to cease to be the supreme law in the traditional constitutional sense. He noted that the core provisions declaring the Constitution as supreme and invalidating laws that conflict with it would be undermined, fundamentally altering Fiji’s legal order. He also argued that such a move would contravene Fiji’s constitutional history, which has long embedded entrenchment and supermajority requirements, reflecting the framers’ intent to preserve that tradition.
At the micro level, removing Chapter 11 could eliminate an explicit mechanism to amend the Constitution. If Sections 159 and 160 were rendered ineffective, there would be no clear authority to amend the rest of the document. Additionally, the removal could render Section 2(2), and particularly Section 2(5), meaningless, undermining the practical functioning of constitutional safeguards. Butler urged the court to reject the State’s suggested outcome as untenable.
The remarks come amid a broader, ongoing conversation about constitutional reform in Fiji. Legal scholars and practitioners have warned that attempts to invalidate or reverse the 2013 framework could trigger significant legal and administrative uncertainties. Observers note that elections and governance actions conducted under the 2013 Constitution have shaped present institutions, and reverting to earlier arrangements would require careful consideration of legitimacy and practical governance.
Background discussions in Fiji have repeatedly highlighted the tension between entrenchment and reform. Some experts have suggested examining whether particular amendment provisions remain workable or require recalibration, while others have cautioned that any pathway to change must balance historical safeguards with the evolving needs of society. The questions before the court touch not only on the mechanics of amendment but also on the broader trajectory of Fiji’s constitutional settlement.
Takeaway for readers is that Fiji’s constitutional debate remains highly consequential for governance and the rule of law. The outcome of this formal challenge could influence how easily the constitution can be updated in the future, how entrenched protections are preserved, and how the public participates in major constitutional decisions. Legal voices have consistently stressed the importance of reform that respects both history and current demands, rather than abrupt reversals that could destabilize governance.
Summary: The case highlights Fiji’s delicate balancing act between preserving entrenched constitutional protections and enabling thoughtful reform, with the Supreme Court’s guidance and expert analysis playing pivotal roles in shaping the path forward. A cautious, participatory approach that aligns constitutional change with contemporary needs appears increasingly central to Fiji’s democratic trajectory. A hopeful note remains that future reforms can strengthen governance while maintaining legal stability and public trust.
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