Taking away the 2013 Constitution and immediately replacing it with the 1997 Constitution will create a constitutional and administrative vacuum, said Attorney General, Graham Leung.
He said in a social media post, if the Supreme Court found that the 1997 Constitution remained in effect and the 2013 Constitution was void ab initio (illegal from the start), the current Parliament, Government and President of Fiji would not have been validly chosen and would have no legitimacy or legal powers.
“The Government, Parliament and President would be completely reliant on the Supreme Court to confer upon them legitimacy and power for a period of time before elections could be held under the 1997 Constitution,” he states.
“Seeking an order that the 2013 Constitution was void ab initio (illegal from the start) raises complex jurisdictional issues that the Supreme Court would have to confront.”
“It is asking infinitely more of a court for it to overturn a Constitution that has been in operation for over a decade, under which three elections have been held and under which the judges have themselves been appointed.”
Mr Leung added it is even more problematic to ask the Supreme Court to revert to a previous Constitution under which the essential institutions of government – the Parliament and the Executive Government – do not currently exist.
“To then expect it to issue orders which temporarily confer legislative and executive power on institutions and create a regime to manage and restore the validity of appointments, institutions, legislation and executive acts, and to do so under the authority to give an advisory opinion, is unrealistic.”
“It will be big ask to submit to the Supreme Court judges who most likely would have been appointed under the 2013 Constitution and taken an oath of allegiance under it, to declare the entire document as being illegal.”
“For a start, it would place them in a situation of having to consider whether they even have the “jurisdiction” or power to determine such a question.”
“We are in unchartered waters, so to speak. It requires a thoughtful, rational and strategic approach to finding a constitutional pathway moving forward.”
“It is not simply a case of throwing the baby out with the bathwater.”
