Australian constitutional lawyer Anne Twomey has emphasized that challenging the validity of the 2013 Constitution may not be the most effective way to enhance its democratic nature and amendability. Her remarks were made during the 26th Attorney-General’s Conference held at the Sheraton Resort in Denarau, Nadi, last week.
Ms. Twomey pointed out that a significant vulnerability in this context lies in how the 1997 revised constitution was revoked and the 2013 Constitution was established. She asserted that neither of these processes adhered to existing legal frameworks or democratic legitimacy.
In her analysis, she referenced a ruling from the Fijian Court of Appeal in 2001, which determined that the 1997 constitution remained applicable, having never been validly revoked. This was further reaffirmed in 2009 when the court continued to apply that constitution in legal cases.
Ms. Twomey raised concerns that invalidating the 2013 Constitution and reverting to the 1997 version could result in numerous practical issues, especially since vital governance actions, including elections leading to the current government, have occurred under the former. Such a reversal might undermine laws and acts that citizens have relied upon in good faith.
Discussing the implications of the 2001 Yabaki case, she noted the complications that would arise from attempting to reverse historical events, stating that it could lead to significant legal and administrative challenges. Moreover, such a move poses an unacceptable risk to the nation’s peace and welfare.
However, Ms. Twomey expressed an optimistic view, arguing that Fiji is not bound to an unamendable constitution indefinitely. She contended that it could be questioned whether section 160 of the 2013 Constitution represents a valid method of amendment, as it may unjustly restrict the constitutional alteration process. She maintained that while making constitutional amendments more stringent than ordinary legislation is reasonable, it should not be rendered impossible. Such rigidity could unduly constrain the democratic process and prioritize the interests of a past minority over the current populace.
In conclusion, Ms. Twomey’s insights advocate for a constructive path forward for Fiji’s constitutional evolution that respects both its historical context and the needs of its present-day citizens.
This thoughtful approach could open doors for future reforms that align more closely with democratic principles and public welfare.
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