FIJIANS are currently experiencing an expensive and ill-considered Electoral Reform Commission process right on the heels of over $2 million already spent on the COI Inquiry.
While the idea of electoral reform is not inherently flawed, as most agree that the nation needs a new electoral system, the current review is misaligned with the proper legal procedural steps.
As public interest in electoral reform grows, some politicians making decisions hold the belief that the 2026 elections could be conducted under a new set of rules. While this belief is understandable and rooted in a genuine desire for change, it is both legally and constitutionally misplaced.
It is regrettable that the government of the day lacked sound legal counsel on this matter. These missteps are proving costly to Fijian taxpayers while politicians remain insulated from the financial consequences of their decisions.
Adding to this burden, Fijians will face further costs as additional scrutiny has also been requested by the government in relation to the validity of the 2013 Constitution. All these needless cost to the taxpayer could have been saved, as any competent legal scholar would affirm that challenging the very instrument that underpins the authority of both politicians, and the judiciary is a moot point.
Any reforms proposed by the present Electoral Reform Commission cannot be enacted nor enforced. Their reports will gather dust until a new people’s constitution is written and adopted by the nation.
Only then can the electoral landscape be meaningfully revisited ideally after a robust program of voter education, which has been conspicuously absent from the current process. Most Fijians remain unaware of the various electoral systems used globally, let alone which model would best serve the nation’s democratic needs.
Constitutional supremacy and entrenchment
Fiji’s 2013 Constitution remains in full force as the supreme law of the land. Article 2 explicitly states that “this Constitution is the supreme law of the State” and that “any law inconsistent with this constitution is invalid to the extent of the inconsistency”.
In practical terms, this means that the constitution’s electoral provisions are hardwired into Fiji’s legal framework. Section 2(5) further provides that the Constitution “may only be amended in accordance with Chapter 11” – the entrenchment clause.
Chapter 11, specifically Section 160, imposes a formidable double-lock: a 75 per cent parliamentary majority in two separate readings, plus a nationwide referendum requiring 75 per cent support from the total number of registered voters.
These stringent requirements ensure that the 2013 Constitution – and particularly Section 53 – will govern the 2026 election unless the constitution itself is first amended or replaced. Changes to the present electoral law is inextricably tied to and guided by the 2013 Fiji Constitution.
Section 53 – The electoral system entrenched
At the heart of the matter is Section 53, which prescribes Fiji’s electoral system. It states that the election of members of Parliament is by a multi-member open list system of proportional representation, with one vote per person and a single national electoral roll comprising all voters.
Section 53(3) further entrenches a 5 per cent vote threshold, disqualifying any political party or independent candidate that fails to meet this minimum from gaining parliamentary representation.
Additionally, the Constitution fixes the initial size of Parliament at 50 members and requires the Independent Electoral Commission to periodically review this number in accordance with population changes.
The commission’s mandate – review, not reform
This is where the core misunderstanding lies and must be urgently addressed: the Electoral Reform Commission’s mandate is consultative not legislative. It has no authority to initiate binding legal change.
While its public engagement efforts and stakeholder submissions may inform future reforms, they cannot directly result in any immediate legal transformation.
Any recommendation the commission produces – no matter how compelling or well-received – cannot be implemented through any subsidiary legislation.
This is because the following electoral laws are all subordinate to the 2013 Fiji Constitution: The Electoral Act 2014; The Electoral (Registration of Voters) Act 2012 and The Political Parties (Registration, Conduct, Funding & Disclosures) Act 2013. None of these statutes can override or amend what is entrenched in Section 53 of the Constitution or bypass the entrenchment mechanisms in Chapter 11. Therefore, any expectation that the commission can deliver a new electoral system before 2026 is fundamentally misplaced.
The commission is not a vehicle for reform, but rather an information-gathering and advisory body. Parliament cannot simply pass a Bill to change core electoral rules without violating constitutional supremacy.
Civic education and historical amnesia
Fijian public remains largely uninformed about the various electoral systems used globally. Neither do they understand the present system except that a person with 200 votes can be in parliament and one with 2000 may not be elected-under this system. This is the crux of their talanoa around the grog bowl. Thus, without comprehensive civic education, citizens are unable to make informed contributions to any future electoral reform process and are unable to articulate choices, as for that to happen, they need to understand the various electoral systems to make a choice.
This lack of foundational knowledge was evident during the 2013 constitutional consultation process, where the public was not adequately equipped to understand or evaluate the range of electoral models being considered.
Electoral Acts in conformity
Each of Fiji’s key electoral statutes has been written to conform to these constitutional dictates. The Electoral Act 2014 implements the provisions of Section 53. It provides for a single National Candidates List (Section 36), one unsegmented voter roll, and a nationwide vote count. Its seat-allocation formula (Section 104) uses the D’Hondt method on the national vote totals. While the D’Hondt method promotes proportionality, it is not without its drawbacks. Critics argue that while the method ensures party-level proportionality, it can undermine individual merit and voter intent, especially in a single national constituency model.
Similarly, the Electoral (Registration of Voters) Act 2012 establishes a single national voters’ register as mandated by Section 55 of the Constitution. That provision guarantees every citizen’s right to register and explicitly requires the Electoral Commission to maintain a single, national common Register of Voters.
The Political Parties (Registration, Conduct, Funding & Disclosures) Act 2013 also aligns with constitutional requirements. Chapters 4 and 5 of the Constitution spell out broad party principles (such as inclusivity and upholding the Constitution) and instruct Parliament to regulate parties’ registration, funding, and media access. The Parties Act implements those mandates.
Legislative constraints and legal reality
Fiji’s legal framework makes it plain: legislation cannot override the Constitution. Section 2 of the Constitution leaves no doubt that any law inconsistent with its text is null and void. Thus, any attempt to use a new Electoral Act or other statute to break the single-constituency system would be unconstitutional. Even proponents of reform recognise this legal barrier. Parliament and the Electoral Commission may review laws and discuss changes, but without a constitutional amendment, no substantive alteration to the electoral system can occur.
While Fiji’s legal framework clearly prohibits ordinary legislation from overriding the constitution, deeper concerns persist about the democratic integrity of the current electoral model. Legal scholars and civil society observers have questioned whether the D’Hondt method, especially when applied within a single national constituency, is the most appropriate system for a multi-party democracy like Fiji. Critics argue that it can distort voter intent by disproportionately rewarding larger parties, while sidelining smaller parties and independent candidates, even when they enjoy significant public support. This has led to what some describe as a democratic deficit, where the system’s legal rigidity masks underlying representational imbalances.
The disconnect and political myth
Despite these stark legal facts, public debate in Fiji often ignores them. There is widespread expectation that one can “fix” the election rules by tweaking the Electoral Act, the Voter Registration Act, or the Political Parties Act. Some political voices even call for a formal return to the 1997 Constitution.
Legally speaking, these ideas cannot be implemented without following the procedures outlined in the 2013 Constitution. Even in theory, if all parties united around reform, the double-lock entrenchment – requiring 75 per cent support in Parliament and 75 per cent approval from all registered voters in a national referendum – would still pose an immense barrier. Achieving both in the current political climate borders on the impossible.
This disconnect between public perception and constitutional reality has created a political myth: that electoral reform is just a matter of political will or legislative adjustment. In truth, it is a constitutional challenge of the highest order, one that demands not just consensus, but a complete legal overhaul and the will of all Fijians to unite behind this cause.
Why the 1997 constitution is moot
Fiji is not alone in facing the challenges of entrenched constitutional frameworks. Around the world, when a new constitution is adopted, it supersedes all previous legal instruments. South Africa’s 1996 Constitution repealed its apartheid-era documents. Kenya’s 2010 Constitution replaced its 1963 charter. These examples show that once a new constitutional order is established, the old one loses all legal force.
In Fiji’s case, the 1997 Constitution was officially abrogated on April 10, 2009, by President Ratu Josefa Iloilo. This followed a ruling by the Fiji Court of Appeal on April 9, 2009, which declared the interim government of Commodore Frank Bainimarama illegal. In response, President Iloilo announced the revocation of the constitution and the dismissal of the judiciary. The nation was governed by decrees till the enactment of the 2013 Constitution on September 6, 2013. It was signed into law by President Ratu Epeli Nailatikau and came into effect immediately.
The 1997 Constitution no longer holds any legal standing. Proposals to revert to the 1997 constitution face the same legal hurdles as any other reform: they would require the repeal or amendment of the 2013 Constitution through its own entrenched procedures. Sentimental or symbolic arguments are not enough. Legal restoration demands procedural compliance. Any notion of resurrecting the 1997 constitution without first undoing the 2013 document, is only a political stunt without grounding in legal reality.
Reform by truth, not illusion
The only coherent way to reconcile Fiji’s Electoral Reform, with legal reality, is to start at the beginning. This will start by adopting a new, truly people-driven constitution before reworking the electoral rules, within the proposed document simultaneously. This means starting with a comprehensive people’s civic education, then writing the people’s constitution, is concert with suggested people’s electoral reform.
Reform is possible, but only if we face the truth squarely: there are no shortcuts. Only a new constitution can unlock a better electoral future. Let us not be seduced by illusions of quick fixes or distracted by political theatre. The path to genuine reform is long, deliberate, and often uncomfortable, but it is the only path that leads to lasting legitimacy.
