Fiji Labour Party lawyer Siddharth Nandan told the Supreme Court today that the State has jumped the gun in asking the Court to rule on the constitutionality of the amendment process without even attempting it.
Appearing before the full bench during oral submissions in the landmark constitutional reference case, Mr Nandan argued that the Court should not be asked to speculate on hypothetical outcomes of a referendum that has not occurred.
“How do we know it is possible?” Mr Nandan asked.
“You try and pass the legislation through Parliament, and then you try and do a referendum and see what the results of it are.”
“There has only been one attempt at that so far. Let the State do the work first and then test whether the result of that work is constitutional and lawful or not. They’ve put the cart before the horse and come here to this Court.”
Justice Isikeli Mataitoga asked Mr Nandan on the practical challenges of achieving a supermajority in a referendum, given low voter turnout trends in Fiji.
“Even in previous elections, turnout has never gone as high as 75%,” Justice Mataitoga said.
“How do you think it will magically change just because it’s a constitutional referendum?”
In response, Mr Nandan said the “double supermajority” required by the Constitution does not mean 75% of all registered voters, but rather 75% of those who actually vote in the referendum.
“There is a distinction, My Lord. You don’t need to achieve 75% of all registered voters voting in it. The requirement is 75% of the votes cast in the referendum,” Mr Nandan said.