Australian constitutional lawyer Anne Twomey has expressed concerns about the effectiveness of challenging the validity of Fiji’s 2013 Constitution as a means to enhance its democratic nature or facilitate amendments. During her address at the 26th Attorney-General’s Conference at the Sheraton Resort in Denarau, Nadi, she pointed out the weaknesses in the legal process surrounding the revocation of the 1997 revised Constitution and the subsequent implementation of the 2013 version.
Twomey highlighted that neither of these processes adhered to established legal protocols or ethical democratic standards. She referenced a 2001 Court of Appeal decision, which affirmed that the 1997 Constitution remained in force and had not been lawfully revoked. This ruling continued to hold sway in legal matters even in 2009.
She cautioned that attempting to invalidate the 2013 Constitution could lead to significant challenges, given that numerous actions, including elections, have taken place under its framework. Reversing the constitution would not only undermine laws that individuals and organizations have relied upon but could potentially create severe legal and administrative complications.
Citing the 2001 Yabaki case, Twomey indicated that reverting to the past could disrupt the stability and security of Fiji. However, she stressed that this does not mean that the nation is permanently hindered by an unchangeable constitution. Twomey argued that provisions within the 2013 Constitution, such as section 160, might be considered ineffective in this regard as they could represent an unlawful renunciation of the power to amend the Constitution.
While she acknowledged that it is prudent for constitutional amendments to be more challenging than altering ordinary laws, it should not be entirely impossible. Such a restriction would unfairly impose outdated perspectives on contemporary society, thereby undermining the democratic process intended to serve the current generation of Fijians.
In summary, Twomey’s remarks suggest a path toward addressing constitutional issues in Fiji through careful examination and necessary reforms, rather than through outright rejection or reversal, promoting a future that respects both history and the evolving needs of society.
This article sheds light on an ongoing constitutional debate in Fiji, highlighting the importance of a balanced approach to governance and legal structures, ultimately aiming for a democratic future that is adaptable to its people’s needs.
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