In the lead-up to the 2022 general election, the possible review of the 2013 Constitution attracted public support.
Public interest revolved around the Fiji Court of Appeal’s decision in 2009 that Bainimarama’s 2006 coup was unconstitutional and illegal.
This article examines the question of whether the 2013 Constitution is amendable or indeed reviewable.
Despite the court decision, the Constitution was declared to be abrogated and Bainimarama continued ruling (in my view illegally) by decree until 2013.
Absolute control is no substitute for democracy and legitimacy through the will of the people, thus the endeavour for public acceptance through the “People’s Charter” and the Ghai draft constitution.
After the failure of these two projects, the 2013 Constitution was forced upon the people of Fiji without due process.
With the change of government in Fiji, public interest in the status of the 2013 Constitution is emerging.
Among the calls for a constitutional review is the belief that the court’s 2009 ruling against Bainimarama’s interim government as unconstitutional continues to validate the 1997 Constitution.
Furthermore, the legitimacy or the genesis of the 2013 Constitution may be deficient and open to judicial challenge.
However, any test on the legality of the 2013 Constitution will have to be considered with the concept of “acceptance” as justification for its legitimacy.
After all, we, the people of Fiji, have voluntarily participated in three general elections and accepted a change of government under the 2013 Constitution.
Whether the argument is legally sound is a matter of opinion, but a judicial challenge as a viable option remains to be seen.
The 2013 Constitution begins with the proclamation by the preamble that “we, the people of Fiji”, recognise various ethnic groups, declare equal citizenry, the supremacy of the Constitution and our commitment to human rights, justice, national sovereignty, security, economic and social wellbeing.
This preamble illuminates democracy as a powerful ideal.
It implies the source or the essential ingredient that provides legitimacy to the Constitution.
The Constitution includes provisions for amendment.
Under this process, parliament must pass a Bill to amend the Constitution, which must be supported by the votes of at least three-quarters of the members of parliament.
During parliament’s consideration of the Bill through its three stages, there must be 30 days between its second and third readings.
In addition, the relevant parliament committee must report to parliament on the Bill before the third reading stage.
Once the Bill is passed by parliament, it is sent to the President, who shall refer it to the Electoral Commission.
The Electoral Commission then conducts a referendum on the Bill.
The referendum is for all registered voters of Fiji to vote on the Bill.
On its face, the constitutional provision for amendments would be an exercise in futility.
Achieving the required three-quarters of parliamentary votes in the context of ethnic party lines which permeate Fiji politics is farfetched.
This requires a vote of 41 from 55 parliamentarians.
Upon fulfilling this first hurdle, the matter will go through a referendum which requires the support of three-quarters of the total registered voters.
Again, this is a tall order, given the voter turnout of 84 per cent in 2014, 71 per cent in 2018 and 68 per cent in the 2022 elections.
As complex as it is, the above provides the only means of a constitutional review or amendments to the 2013 Constitution.
This raises the question of the motive behind the entrenched provisions in the Constitution, or what is the provision protecting?
Is the Constitution inadvertently advocating coups through the immunity clause?
Section 159 is explicit that any provision of the Constitution can only be amended following prescribed procedure and not any other way.
Then you have the requirement that no amendments may ever repeal Chapter 10 (immunity) and Part D of Chapter 12 (transitional).
Here we have the supreme law of Fiji, a sovereign democratic state founded on the rule of law, an independent justice system and good governance, amongst others, protecting those who perpetrated the overthrow of elected governments and abolished the Constitution.
The dilemma is that a supreme law with a questionable origin purports to uphold democracy and the rule of law while providing immunity to those who ousted elected governments and abolished previous constitutions.
Simply, it is contradictory for the Constitution as the supreme law to uphold democracy and the rule of law while protecting inherently illegal and criminal acts from prosecution.
The power to amend the supreme law is limited to the procedure, which depends on a vote in parliament.
If the law is supreme, how can it be limited?
Or if it is limited, how can it be supreme?
Arguably we can return to the cradle of legitimacy – we, the people of Fiji to ascertain the highest authority.
Comprehending the limitation on the amendment power must consider the nature of the constitutional power as supreme law – the difference between constituent power and constituted power.
In modern democracies, a constitution receives its normative status from the bottom up; the will of the people provides constitutional authority through which the political and legal order is manifested.
That is constituent power, and it is independent of any constitutional forms and restrictions.
On the other hand, constituted power is created by the constitution; power is limited to functions, forms and modes granted in the constitution.
As such, contrary to constituted powers, constituent power is free from any formal bonds created by the constitution.
Arguably the constituent power established the Constitution, which regulates the constituted authorities of the executive, legislature and
judiciary.
And if constituent power cannot be bound by the Constitution or constituted powers, then “the people” who control the government through the Constitution form the highest power in the nation’s political life, including amending power.
Presumably, it is legitimate for “the people” to reshape the Constitution, amend or review the Constitution as part of the people’s ultimate constituent power.
Whatever the government adopts, reviewing the 2013 Constitution is necessary if Fiji must progress as a democratic state upholding the rule of law.
Besides core democratic governance principles, everything else, including immunity, should be amendable.
• DR JALESI NAKARAWA graduated from the University of Waikato with a Doctor of Philosophy in Law. He served as Senior Assistant Secretary (Defense) Ministry of Home Affairs and was Assistant Commissioner of Prisons. He was also an Assistant Professor (Law) at the Fiji National University. He was a PAP candidate in the 2022 general elections. The views expressed in this article are his and not necessarily of this newspaper.
