SO last week the Coalition Government lost a round in Parliament on amending the Constitution.
The Constitution (Amendment) Bill was aimed at amending a small, but critical part of the Constitution – Chapter 11. It passed its first reading with 41 out of 55 votes. However it fell at the second reading, gathering only 40 of the 42 votes it needed (three-quarters) to go on.
I doubt the Government will see it like this, but in one way, its loss is actually a win for everybody, including its supporters.
Because, to my mind, the loss meets one of the acid tests of a democracy – that those who are in power do not win all the time.
Fiji’s citizens have plenty to complain about (and they are certainly doing that). But it is hard to imagine the FijiFirst Party, in a similar situation, simply accepting its failure and returning to its corner to consider its next step.
Remember, that was a government that, when the voting numbers in Parliament got tight, decided to change the rules to “voting by acclamation” – that is, “let’s just not count the votes at all.”
In fact, the last time a Bainimarama government lost anything (well, before it lost the last election) was when the Fiji Court of Appeal, in Easter 2009, told the military government that its coup was unlawful and that the President must appoint a caretaker Prime Minister and get Fiji ready for new elections.
The Court of Appeal ruling seemed to surprise the military government (it seemed pretty obvious to most of us). Unaccustomed to losing anything, the military government then threw out the whole Constitution – Court of Appeal and all – and then wrote itself another one.
It is important to remember how the 2013 Constitution came about. It just appeared from nowhere. No one had the chance to debate it or change it. No one voted for it. And there was certainly no referendum on it.
The 2013 Constitution begins, rather grandly, with the words “We, the people of Fiji…establish this Constitution.” We, the people of Fiji, did no such thing.
Senior judges rarely say more than they need to. But in 2024 the Supreme Court of Fiji was asked to rule on whether the appointment of two senior public officials was lawful (call that case a draw – the Government, in the form of the Judicial Services Commission, won one and it lost one).
Along the way, however, the Supreme Court made a pointed note that the 2013 Constitution “was the work of a relatively small group of officials.” A few lawyers’ eyebrows went up. Was that a hint, maybe, that the Supreme Court didn’t think much of this Constitution either?
Changing the rules
For many years we were told that this was not just Fiji’s best Constitution ever – it was one of the best in the world. We had “transparency and accountability”. We had “equal citizenry”. We had “true democracy” – and if we all parroted these words for long enough, the FijiFirst Party thought, we might all end up believing it.
In fact, as constitutions go, the 2013 Constitution is not a very good way to build a transparent and accountable democracy. There are plenty of reasons to say that – whether it is the strange and unrepresentative electoral system (certainly a weird form of “true democracy”) or the control it gives to the Government over – well – everything, including the judiciary.
And then (and now we come to the point) there is the way the Constitution allows itself to be changed. That is what we find in Chapter 11 of the Constitution.
These are the rules that the Government wanted to change in the Bill that was defeated.
It is not very clear to most of us what the Government was trying to do with its Constitutional Amendment Bill, because it did not explain itself very well.
From what I can tell, the Government wants to open up the debate on the Constitution – what the Constitution should say, how we should vote and how the Government should work. Since nobody voted for the current Constitution, that is not a bad idea.
And, says the Government, to manage that, we will appoint a constitutional review committee (and in our history, we have had a few of those).
The constitutional review committee will listen to what people have to say and issue a report on what the people think should be in the Constitution, on the way to getting us to a new one.
All of that seems reasonable. But somewhere in the debate over the last 10 days, that idea seemed to get a bit lost.
All we could see was the Government putting the Bill into Parliament. More than a few lawyers’ eyebrows went up. How were they going to pass it? Did they have the numbers? And what was the plan after a Parliamentary vote?
Because, of course, as most of us know, the 2013 Constitution has set its own rules about how it can be changed.
First, three-quarters of Parliament (42 out of 55 MPs) must vote for it. Then, three-quarters of all of Fiji’s voters must turn up in a referendum to vote in favour.
And, as we all know, three-quarters of Fiji’s voters don’t even turn out to vote in the elections. In 2022 only 68 per cent of the voters turned out. So, even if 68 per cent of the voters turned out to vote in a referendum, and even if they all voted yes, the Constitution says that it could not be changed.
It is only when you dive deeper into the Constitution you come across more – and sillier – rules.
For example, the Constitution also says that the Chapter 10 immunity provisions – giving legal protection to those who overthrew the Government in 2006 – can never be changed, three-quarters referendum or whatever.
And just in case you wanted to change the rules in Chapter 11 about changing Chapter 10, you can’t change those Chapter 11 rules either – never, ever. Nor can you change all the rules that prevent you from challenging all the laws that the military Government passed – never, ever.
Now at this point, perhaps some of you may be wondering, what the…
Let’s accept that the three-quarters referendum rule is impossible to meet. That means we are living in a legal system that says: “Two of us made the rules – and the first rule is that nobody is allowed to change the rules.”
You might hear of this in a primary school playground. But it makes no sense anywhere else. And it is certainly not a law that a democracy should tolerate.
Super-majorities
It is right, most legal scholars agree, that, before you change a country’s constitution – the country’s supreme law – you need more than a simple majority in Parliament to do it. The Constitution is supposed to be something that, broadly speaking, all the people agreed to – usually through their representatives in Parliament.
So to make any changes you need more than just the government of the day – those who happened to win the last election – to vote any changes through. You need what is sometimes called a “super-majority”.
In past Constitutions – 1970, 1990, 1997 – the “super-majority” was either three-quarters or two-thirds of all Parliamentarians. In 1997 the rule was two-thirds (although remember there were two Houses of Parliament who had to vote, the House of Representatives and the Senate). A referendum was never required.
The Government seems to be thinking that if it can get the law changes through the three-quarters vote in Parliament, it will go to the Supreme Court to say “please advise that the rest of the rules are ridiculous and undemocratic and we don’t have to follow them”.
And that, to me, seems a reasonable way for the Government to go. It is following, the rules set out under an undemocratic constitution to which no one agreed – but only to the point where those rules might be regarded as reasonable. Then it is saying “it is not fair for us – or for anybody – to be bound by unreasonable rules”. It is not making that decision by itself. It is asking the courts to rule on it.
And it is also worth adding that these are not courts that just do what the Government tells them to do. While we all grumble about the water and the hospitals and the Parliamentary salaries, the Government deserves credit for giving us a stronger, more independent judiciary than was ever allowed under the FijiFirst Party. So the Government may not get everything it wants.
So the current changes are about “changing the rules about changing the rules”. This, I think, is not a bad idea. It gets us all attuned to the idea of Constitutional change, and it means that, once we have gone through a constitutional review process (which will probably take many months) the pathway will be clearer to give ourselves a constitution that the people really want – not some random document with a label on it that says “true democracy”.
Back to 1997
One more thing for now – there seems to be a school of thought that says “stop all this hand-wringing about the 2013 Constitution, it was never legal, so just throw it all out and go back to the 1997 one.” That idea is attractive in its simplicity.
Unfortunately that’s where the attraction ends because then the idea collides with reality. The current Constitution has been in force for 12 years (“force” might be the correct word). Laws have been made under it, people have been appointed under it – and, of course, governments, including the current one, have been elected under it.
To suddenly say “that rulebook is out, the old rulebook is in” would create legal chaos. What rules would Parliament operate under? Who would have been validly appointed? What about processes that are only half-way through? Which rules apply?
There are a slew of situations where a “2013 history” would not support a “1997 present”.
But as for the future – there is still a long way to go before we even begin talking about what will go into a new constitution.
Some Opposition politicians are muttering darkly about a future of racism, the end of the secular state, and more. But the fact remains that, even if the Government gets the voting changes it wants, two-thirds of Parliament (that is, 37 MPs) would have to vote in any new Constitution.
All of this is complicated and controversial, for sure. But so far – and in contrast to what we saw under the long years of the previous Government – it is democratic.
