Parliament may have the power to change Chapter 10 of the Constitution because the Supreme Court’s opinion on the issue is advisory and is not binding on Parliament.
Speaking to the Constitutional Review Commission (CRC), former chief justice Daniel Fatiaki urged commissioners to listen to the views of Fijians and recommend amendments to the Constitution’s immunity provisions.
He argued that the Supreme Court’s opinion only binds the courts – not Parliament or Cabinet.
Mr Fatiaki said Section 91(5), which allows Cabinet to seek the Supreme Court’s opinion on constitutional matters, was “an aberration” and outside the court’s normal appellate function.
He said because the opinion was issued under the court’s original jurisdiction rather than its appellate jurisdiction, it should not be treated the same way as a final court decision.
“Cabinet could reject it because it’s an opinion,” Mr Fatiaki said.
He also argued that Section 98 only refers to the Supreme Court’s “decisions” being binding on other courts and makes no reference to opinions.
“It could have included opinions in that provision. It didn’t.”
He told the CRC that if it believed the immunity provisions should be removed, it should recommend a draft Constitution that excluded Chapter 10.
“Draft an amended Constitution that doesn’t include it. That simple.
“And leave it in suspended animation where it belongs. That chapter belongs in legislation. If Parliament decides to pass an Immunity Act to deal with it, let Parliament do that.
Mr Fatiaki also questioned why the judiciary was included among those protected under the Constitution’s immunity provisions.
He said judges, as guardians of the law, should not require constitutional immunity.
