Certain amendment provisions in Fiji’s 2013 Constitution were described as “illusions” during the oral submissions before the Supreme Court this week.
The arguments by legal experts are centred around sections 159 and 160, which prescribe how the constitution may be amended.
The State referred these sections to the Supreme Court, seeking clarification on the interpretation and application of key constitutional provisions.
Section 160 requires that any constitutional amendment must first pass in Parliament with a three-quarters majority and then be approved by three-quarters of all registered voters in a national referendum.
Section 159 (2) goes further saying that certain parts of the constitution, like the rules for changing it, the immunity given to people involved in past coups, and transitional arrangements, can never be changed or removed, no matter what.
The full bench hearing the case is presided over by Chief Justice Salesi Temo, and includes Justices Terence Arnold, Lowell Goddard, William Young, Robert French, and Isikeli Mataitoga.
The ‘illusion’ of change
The court heard of the ambiguity of Section 160(4), which states that a national referendum for constitutional amendments must be conducted by the Electoral Commission “in such manner as prescribed by written law”.
“I was very puzzled when I read section 160 subsection 4,” Justice Arnold said in the midst of oral submissions by the National Federation Party’s counsel, Jon Apted.
“So I searched everywhere. I couldn’t find a written law.”
Mr Apted then replied there was no law explaining how a referendum should even be run and that was proof the process was never meant to be used, making the amendment process unworkable by design.
“There isn’t one, my lord,” Mr Apted said.
“They never got around to prescribing one because it’s never supposed to happen.
“All of these amendment provisions are illusory because they were designed to make amendment impossible, at least.”
At the same time, Mr Apted argued that Sections 159 (2) and 160 of the constitution are “illusory” in that they formally allow for amendments, but in practice make such amendments almost impossible to achieve.
These provisions require:
- A three-quarters majority of all Members of Parliament at two separate readings of a Bill;
- A referendum conducted by the Electoral Commission; and
- Approval from three-quarters of all registered voters nationwide.
In Mr Apted’s view, and that of the State’s legal team, these thresholds were designed not to encourage democratic engagement, but to prevent meaningful constitutional reform.
A history without referendums
Mr Apted also said referendums have never been part of Fiji’s constitutional tradition.
Since independence in 1970, constitutional changes were carried out through Parliamentary processes, with no public referenda ever held.
This, he argued, makes the 2013 Constitution’s referendum requirement a “break from precedent” and potentially an undemocratic one.
He pointed to historical drafts and expert commissions, notably the Yash Ghai Commission, which recommended a two-thirds supermajority for constitutional amendments, not a referendum or three-quarters voter threshold.
“The framers of the 2013 Constitution sought to create permanence, not flexibility.
“The people were effectively deprived of their own sovereignty.”
Chief Justice Salesi Temo then posed a question asking Mr Apted how principles like freedom and human dignity should influence the court’s interpretation of the constitution, especially regarding the amendment provisions?
“The referendum had no precedent… It was inserted to make the constitution permanent,” Mr Apted said in response.
“The people were effectively deprived of their own sovereignty.”
He argued that provisions 159(2) and 160 should be declared invalid, either for being internally inconsistent or for contradicting the overarching principle of popular sovereignty as enshrined in Section 3 of the constitution.
Three routes for the court
Mr Apted outlined three alternative paths the Supreme Court could take:
- Declare sections 159(2) and 160 invalid;
- Ignore or reinterpret the provisions, especially the three-quarters requirement; and
- Replace them with a more realistic two-thirds supermajority, in line with Fiji’s 1997 Constitution and the recommendations of the Yash Ghai Commission.
If the court found it lacked power to “read in” a new threshold, Mr Apted urged the justices to accept a simple majority requirement, especially given the current Bill in Parliament that had already passed one reading.
Constitution validated by efficacy?
Supreme Court judge Justice Robert French asked whether the 2013 Constitution could be seen as validated through its practical operation over time.
Mr Apted acknowledged that, while some might argue the constitution has gained legitimacy through successive elections and the absence of alternative institutions, the amendment provisions had never been accepted or tested.
“The 2013 Constitution is in place.
“But the court can find that the amendment provisions have never been accepted and should be unenforced.”
Answering the court’s questions
He aligned with the State on the Supreme Court’s guiding questions and they were as follows:
Question 1: Are sections 159 and 160 binding? – No.
Question 2: Can Parliament amend the Constitution by Bill? – Yes.
Question 3: Does amendment require referendum approval? – No.
Mr Apted again stressed the absence of referendum tradition in Fiji and warned that any national referendum would be “expensive and divisive.”
A changing Fiji
In one of the most reflective moments of the hearing, Mr Apted referred to Fiji’s political evolution.
“This society has changed dramatically and is continuously changing.
“The same issues as in 1987 don’t exist to the same extent.
“The most important issues, the demographics, inter-ethnic relations, have completely changed.”
He argued that Fiji’s constitution needs flexibility to meet future challenges, including issues like climate change, migration, and social transformation.
“We’re in a very difficult situation.
“We are hoping that the benefit of the State submissions and the interveners will assist the people of this country with an opinion that helps us move forward, a constitution that we can draw together.”
NFP’s stand
Over the years NFP has consistently opposed Fiji’s 2013 Constitution, criticising it as an imposed document lacking democratic legitimacy and public consultation.
It has described the constitution as “illegally imposed” and fundamentally flawed, particularly for entrenching immunity provisions and centralising power.
The 2013 Constitution, it said, was forced upon the people without their consent and “cannot be the foundation for genuine democracy.”