Senior Australian barrister Arthur Moses, appearing for the Fiji Law Society, has told the Supreme Court that the State’s request in the constitutional reference case threatens to undermine the supremacy of the Constitution.
He added this risks reducing democracy by removing the people’s voice from the amendment process.
In a forceful submission, Mr Moses said the Court must not entertain legal arguments based on political promises or hypotheticals, nor insert implied powers that do not exist in the constitutional text.
“By accepting the invitation of the State, the Constitution loses its supremacy,” Mr Moses said.
“The Court cannot determine matters of construction and application based on a promise from the bar table.”
He warned that the State is asking the Court to “pick up the blue pencil”, a term used in contract law to modify text, and effectively rewrite the Constitution to allow amendments without public consent.
“What my learned friend (State counsel) is asking in order to enhance democracy, we are going to minimize democracy by taking the people out of the vote.”
The State wants the amendment process under the 2013 Constitution to be altered to allow a two-thirds parliamentary majority to replace the requirement for a public referendum.
“What are we doing here in a court of law, grappling with such submissions?”
“They are inherently nonsensical. This Court is being invited to go into an area that is political, not judicial.”