IT may seem sometimes that it is only Commissions of Inquiry and Constitutional court cases that have been getting all the attention.
Many people ask why there seems to be so much attention on these lawyer-led issues than those that affect our everyday lives — health, education, drug addiction, high prices. Those are not unreasonable questions.
That Commission of Inquiry is a topic for another day. There is a lot more to play out on that. The Fiji Independent Commission Against Corruption – which has spent most of its existence being not very independent – has created a toxic legacy in national life that will take a long time to clean up.
Last month, the Government and an assortment of differently-striped politicians gathered for that Constitution case. Two dozen lawyers representing 10 different groups crowded onto the Supreme Court benches.
There was a good deal of mind-bending legal argument – and an equal quantity of political grandstanding from lawyers keen to make the most of the live stream. But on 29 August the 66-page opinion of the Supreme Court emerged.
If you are interested but a bit intimidated, there is good news. First, if your attention span doesn’t run to 66 pages, the Judges issued a four-page summary of their opinion (I have stolen from it for this article). Second, both the summary and that 66-page opinion are written in admirably plain English.
The opinion also spends more than 10 pages covering the major events in Fiji’s constitutional history, from 1874 onwards, including the 1970 Constitution and many of our legal and political twists and turns since then. Some of today’s political players might do well to refresh their memories.
There is a reason why legal judgments take more than a page to write — so what you read here is a very simplified version of what the case was about.
A constitution is generally regarded as a nation’s “supreme” law. It sets the rules for all the other laws, including how they are made. The Constitution creates the Parliament and sets the rules on how it is elected and how it legislates. It creates the Courts and what they can decide upon.
The Constitution creates and regulates other independent offices — those who lead the Police, the Elections Office, the military, the Reserve Bank and others. Government, it turns out, is quite a complicated thing to make rules for.
But who makes the rules on how to change the Constitution itself?
Well, since it is the supreme law, the answer is – it’s in the Constitution.
Most of us know that one of the (many) issues with the 2013 Constitution was how hard it was to amend. It required the votes of three-quarters of all Parliamentarians, and then three-quarters of all of Fiji’s voters in a referendum (everyone on the roll, not just those who turned up) to make any change – even to move a comma. And, the Constitution said, you must never do anything to “repeal, infringe or diminish the effect” of those rules.
Although a few people argued otherwise, the intent of this formula was to lock in the rules of the Constitution forever. A three-quarter vote of Parliament might be possible, but it is hard to get even three-quarters of our people to the polls to vote, let alone all vote in the same way. While many Constitutions require a referendum of some kind to achieve constitutional change, none in any democratic country set the vote for changing the Constitution that high.
We have a right to be offended by this. An unelected government wrote that Constitution. It did not submit its own document to such a test. It didn’t submit it to a vote at all. So why should we follow its rules? I will come to that.
Testing the limits
The Coalition Government set out to test the limits of the Constitution. In March this year it decided to try to change a small part of it – the amendment rules. First it attempted to get a three-quarters majority in Parliament. To cut a long story short, they didn’t get that majority.
So the Government decided to go to the Supreme Court for an opinion. The Constitution claimed to have democratic values. And yet, said the Government, its own amendment rules were not democratic. By making it so hard to change the Constitution, the Constitution itself took away from the people the power to change their own rules.
The Government asked the Court to interpret the “three-quarters” amendment rules as so undemocratic they should not be recognised as lawful. And if those special amendment rules came out, the Constitution could be changed just like any other law – by a simple Parliamentary majority.
Other parties, however, pushed back. They took different positions. Some said that the amendment rules should stay as they were.
Others said that Government had not tried hard enough to make the 2013 Constitution work; it could not come to court complaining just because it had lost a Parliamentary vote once. Others rejected as dangerous the idea that the Government should have the right to change the Constitution by a simple majority, as it wanted to do.
Then there were the arguments that the 2013 Constitution should be ignored altogether in favour of its predecessor: “Bring back the 1997 Constitution.” A surprising number of litigants seemed to think this was a good idea.
But you don’t vote in a courtroom. You have to persuade (in this case) six senior judges on what the law is – based on logic and precedent – that is, the decisions of courts in other cases, in Fiji and elsewhere.
Lawyers learn, as court cases proceed, to “read the room”. It was clear that the Supreme Court was unimpressed with how the 2013 Constitution had been made. One lawyer paused to find a polite way to describe it. New Zealand judge Sir William Young bluntly helped him out: “It was imposed on the people by an unelected government.” So that was that.
But it is not just the lawyers who must follow the rules in court. Judges, too, must apply logic and precedent – as they were reminded by some of the lawyers in the courtroom. Judges cannot just do anything they want. Strong arguments were made to them that it was the Court’s job to read and interpret the Constitution – it was not the Court’s job to rewrite it.
What the court did
Ultimately, the Court decided to interpret the Constitution in a way that it believed reflected the democratic values that should be in it. That meant recognising that the 2013 Constitution was “effective” (and I will come back to that) because, whether the people of Fiji liked it or not, we have been abiding by its rules for the last 12 years.
However, the Court recognised that the 2013 was “an imposed Constitution”. The people had not voted for it. So the Constitution had, in the Court’s words, a “democratic deficit.”
The Court agreed that the “three-quarters” rules made the Constitution “virtually unamendable”. That meant that it “disempowered the people from effecting democratic change”. For that reason, the Court gave the 2013 Constitution only “qualified” recognition. In other words, there were parts of the 2013 Constitution that it would not accept.
So, the Court said, no three-quarters majority in Parliament was required to change the Constitution. Two-thirds of MPs (that is, 37 out of the current 55 MPs) was enough. There must still be a referendum. But the referendum would need only a simple majority – 50% plus one of the voters who turned out – to succeed.
Was that “re-interpreting” or “re-writing” the 2013 Constitution? You be the judge.
But it’s done. That is how, the Supreme Court says, the Constitution is now to be read.
What we do now
It is important to understand that the opinion only concerned the amendment provisions of the Constitution. The other parts of the Constitution remain. They can only be changed by those (newly-interpreted) amendment rules.
Many people see constitutions as only about two things – the voting system and protecting the rights of the iTaukei to their land and customary rights. Some iTaukei commentators criticise the Supreme Court opinion that the Constitution is still in place. They demand that the 1997 Constitution should return (and grumble about overseas judges telling us what to do – but that too is a topic for another day).
First of all, that outcome is not possible under the law – the legal precedents that guide us. The law of Fiji requires the courts to recognise a constitution when it is effective – that is, we are following it, holding elections under it and doing business under it, whether we like it or not. That’s to recognise the reality we live in. It’s like the weather. If the sun is shining, a court is not going to rule that it’s raining.
Many people, however, have forgotten what was actually in the 1997 Constitution. The 1997 Constitution was made for the 1990s in the aftermath of 1987. Fiji is a very different place today.
For example, the 1997 Constitution had a government power-sharing rule. The rule was that the party with the most MPs must invite the party with the next-greatest number of MPs to join the Government. How would we make that work in 2025?
And many people who say that the 1997 Constitution better protects indigenous rights forget that the 1997 Constitution, too, was criticised for not being protective enough.
Other politicians predict darkly that now the Constitution can be so easily amended, Fiji’s minority communities will lose their rights.
So we can look forward to a lot of political posturing in the near future.
Here is the point – thanks to the Supreme Court, we have finally regained our rights as citizens to make the Constitution we want.
This will not be easy – and the Court has not made it easy. To get a new Constitution we will have to get through a referendum, a huge, multimillion-dollar exercise that is as big as an election.
The Government is talking about wide consultation and a constitutional commission, which is of course the right way to go. We now need to focus our efforts on a constitution for the 2020s, not the 1990s.
But some of us probably would not mind if, just for a little while, we now took a break from the law and focused on some of our many other challenges.
RICHARD NAIDU is a Suva lawyer. He was a lawyer for the National Federation Party in the Supreme Court case on the Constitution. The views expressed in this article are not necessarily the views of The Fiji Times.
