Announcing when a referendum is expected to be held is not a seizure of power. It has not been a kind week or so for the Prime Minister. Professor Wadan Narsey wrote a brilliant piece in this paper on October 9, “Democratic breakdown: PM Rabuka’s massacre of parliamentary democracy”. I did not agree with all of it, and on the referendum date I parted company with him. But much of what he wrote needed saying. The recent Commission of Inquiry and the fallout from it did the Prime Minister no credit either. And as a lawyer, I deplored last year’s dismissal of the Attorney-General, Graham Leung. That, more than a year on, we still have no substantive Attorney-General, and that the Prime Minister cannot swallow his pride, apologise and invite Mr Leung back, makes my blood boil. Even so, I always come back to the Charlie Charters test (and I paraphrase): the Rabuka Government on a bad day is still better than the Bainimarama Government on its best. I say all this so that no one mistakes what follows for the work of an apologist.
SO when I read in The Fiji Times that Aiyaz Sayed-Khaiyum had accused the Prime Minister of usurping powers over the referendum process, I nearly fell off my chair, and not from laughing. Rarely has the pot called the kettle black with such confidence.
Fiji has a long and painful acquaintance with the word “usurpation”. The Prime Minister himself led the coups of 1987, has publicly apologised and asked forgiveness for them, and has since become Prime Minister only through the ballot box.
On May 19 2000, armed men walked into Parliament and held the Prime Minister and members of his government hostage for 56 days. On December 5, 2006, the military removed an elected government.
In 2001, when the Court of Appeal ruled that the 1997 Constitution had survived the 2000 coup, the interim government accepted the judgment and the country went back to the polls.
In 2009, when the same court declared the post-2006 interim government unlawful, the Constitution was abrogated the next day, the judges were dismissed and the country was governed by decree for more than five years. Those were usurpations.
Power was taken and the people lawfully entitled to exercise it were pushed aside.
The word should therefore be used with care. The usurpation Mr Sayed-Khaiyum complains of is the Prime Minister’s announcement that the national referendum will be held on December 9, which he says takes over the powers of the Speaker and the President.
With respect, the charge does not stand up to a reading of the Constitution. As for who is entitled to make it, I will come to that.
Section 160 sets the path. A Bill to amend the Constitution must pass Parliament. There must be 30 days between the second and third readings, and the relevant committee must report before the third reading.
Following the Supreme Court’s advisory opinion of August 2025, the Bill needs the support of two-thirds of all members of Parliament at the second and third readings, and the approval of a majority of those who vote in the referendum.
Once Parliament has passed the Bill, the Speaker “shall” notify the President, who “shall then refer” it to the Electoral Commission to conduct the referendum.
Nothing the Prime Minister has said performs any of those steps.
The Speaker has notified nobody, because there is nothing yet to notify. The President has referred nothing. The Government’s own statement is that the President is expected to issue the writ on 9 November.
If the Bill fails at its third reading, there will be no referral and no writ, and the date falls away. Saying what the Head of State is expected to do is not the same as exercising his power for him.
There is a further difficulty with the usurpation argument.
The duties in section 160(3) are mandatory. Once the Bill has passed, neither the Speaker nor the President has any choice about whether to act, and I struggle to see how anyone can usurp a discretion that does not exist.
Heads of government routinely announce dates for votes that are formally triggered by someone else. On January 28 2020, New Zealand’s Prime Minister announced a general election for September 19, although the election could only lawfully be started by the Governor-General’s writ.
When COVID-19 returned to Auckland in August, the date was moved to October 17. Nobody suggested the Governor-General had been usurped, and the change of date showed, if anything, that an announced date binds no one.
In the UK, the EU Referendum Act 2015 left the date of the Brexit referendum to be fixed by regulations approved by both Houses of Parliament. On February 20 2016, the Prime Minister stood outside Downing Street and announced that the vote would be held on June 23. Parliament then approved the regulations.
Parliament was not bypassed; it was told what the Government planned and asked to give that plan legal effect, which is how section 160 is meant to work here too.
Here, the Bill has passed its second reading and is before the Special Parliamentary Committee.
Thirty days from the second reading takes the earliest possible third reading to about the start of November, ahead of the expected writ. The timetable is tight, but it complies with the Constitution.
Planning ahead is also common sense. Fiji has never held a constitutional referendum. The Electoral Commission and the Fijian Elections Office need time to print ballots, train officials and educate voters. Mr Sayed-Khaiyum says voters must have adequate voter education before they cast their ballots.
He is right. But I do not see how he can demand thorough voter education and at the same time object to the electoral bodies being given early notice of the date. Had the Government kept the date to itself until the night of the third reading, it would rightly have been accused of an ambush.
The second complaint concerns the Prime Minister’s letter asking that general election campaigning be suspended until the referendum is over. Parliament has already decided who makes that call. Section 15(2) of the National Referendum Act gives the decision to the Electoral Commission, and the Commission has said so publicly. It has confirmed that it will decide the question independently and that preparations for the general election will continue alongside the referendum.
An independent body that publicly declares it will make its own decision is not taking orders from the Prime Minister.
In passing section 15(2), Parliament clearly contemplated that a suspension might be appropriate.
Asking the Commission to consider a power the law has given it is a legitimate representation, one any political party or citizen is free to make.
The Irish courts have shown where the line on executive influence should be drawn. In McKenna v An Taoiseach (No 2) in 1995, the Irish Supreme Court held that the Government could not spend public money promoting one side of a referendum.
That is the kind of conduct that really does compromise a fair vote: Using the resources of the State to affect the outcome.
Setting a timetable and writing a letter to an independent commission do not come close.
If this Government ever crosses the McKenna line, its critics will be entitled to say so loudly, and I will be one of them. So far it has not.
What, then, is usurpation? John Locke, in his Second Treatise of Government (1689), put it precisely: “As usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which nobody can have a right to.”
The test is whether someone has taken a power the law gives to someone else. By that test, a Prime Minister announcing an expected date does not come close, though Fiji’s recent history offers plenty of examples that do.
Mr Sayed-Khaiyum was appointed Attorney-General on January 8 2007 by the interim government installed after the coup of December 5 2006. On April 9 2009, the Court of Appeal held that this government was unlawful. The next day, the 1997 Constitution was abrogated, every judicial appointment was revoked, and the same Prime Minister and Cabinet were reinstated. Mr Sayed-Khaiyum continued as Attorney-General.
Public Emergency Regulations were then imposed and renewed month after month. Government censors were placed in newsrooms to remove criticism before publication, journalists were detained, and public meetings were restricted. Fiji was governed by decree for the next five and a half years, until the election of September 2014.
The decrees of that period were the instruments of the usurpation. A raft of them prevented the courts and the Human Rights Commission from hearing challenges to the government’s laws, appointments and decisions. The Administration of Justice Decree 2009 put the regime’s decrees beyond the reach of the courts, and the 2013 Constitution kept that protection alive. Section 173(4) bars any challenge to the decrees of the period, and section 173(5) expressly continues the ouster provisions of the 2009 Decree, as the Supreme Court noted in its advisory opinion of August 2025.
The Limitation of liability for prescribed political events Decree 2010 granted immunity for the events of May 2000 to April 2009. The Constitution confirms those immunities, declares them beyond review and purports to place these provisions beyond amendment forever.
The legal profession was not spared either. In May 2009, the Legal Practitioners Decree took the licensing of lawyers away from the Fiji Law Society and gave it to the Chief Registrar, a court official. I remember only too well the day officials raided the Society’s offices and removed its files. A separate decree allowed pensions to be withdrawn from former parliamentarians, judges and senior public servants who criticised the government. The Media Industry Development Decree 2010 then made control of the press permanent.
Even the Constitution was imposed. In December 2012, police seized printed copies of the Ghai Commission’s draft constitution at the Government Printer and, on Professor Yash Ghai’s account, burned some of them in front of him. The 2013 Constitution that replaced it was promulgated by decree, without a parliamentary vote and without a vote of the people. It also made itself almost impossible to change: Any amendment needed three-quarters of all MPs and the approval of three-quarters of every registered voter, not just those who turned out. The Supreme Court has since lowered those thresholds. The Court also observed that the Constitution’s democratic language sits uneasily with the way it was imposed.
This is the record of the government in which Mr Sayed-Khaiyum served as Attorney-General and Minister for Justice from January 2007 until the 2014 election. It replaced Parliament with decree, silenced dissent, put its own actions beyond the reach of the courts and conferred immunity on itself. It usurped power, wrote the usurpation into law and then made that law immune from challenge. So when I see Mr Sayed-Khaiyum accusing the Prime Minister of usurpation, I need to take deep breaths to calm myself.
I even reach for my Shakespeare at moments like this as he had a phrase or two to describe this whole situation.
In The Merchant of Venice, Antonio warns, “the devil can cite Scripture for his purpose.” Or take King Lear’s advice: “Get thee glass eyes, / And, like a scurvy politician, seem / To see the things thou dost not.”
Every citizen is entitled to insist that the Constitution be followed, and that includes Mr Sayed-Khaiyum. But when someone with that record accuses an elected Prime Minister of usurpation for announcing a date, while Parliament sits, the courts are open and the Electoral Commission speaks freely, readers are entitled to weigh the charge against the record of the person making it. Fiji knows what usurpation looks like and some of us remember who held the pen.
As for the referendum itself, the real tests are still to come: Whether the committee consults properly and reports honestly, whether the Bill wins two-thirds of all members at the third reading, whether the writ is issued only after that vote, whether any suspension of campaigning is proportionate and applies evenly to every party, and whether the Government keeps public money out of the yes campaign.
On those questions this referendum will stand or fall, and the Government should be held to every one of them.
In the meantime, a date on the calendar is no threat to parliamentary democracy. We have lived through the real thing, and this is not it.
AZEEM SAHU KHAN is a lawyer working in Ba. The views expressed herein are his and not of this newspaper.
