Over the last two weeks we have had at least two commentaries on the Supreme Court “Opinion” on questions posed to it by the Coalition Government.
The first (“That Constitution case”, September 6, 2025) was by Munro Leys lawyer Richard Naidu, his law firm also the lawyer for National Federation Party to the Supreme Court sittings. While Richard is usually clear in his writings, his latest article meanders as he delicately avoids revealing his personal views on tricky issues, except for a sentence or two at the end, supporting the Supreme Court Opinion.
The second interesting commentary was by Professor Jon Fraenkel (“The sad death of Fiji’s 1997 Constitution”, September 9, 2025), pretty clear and to the point about the origins of Fiji’s constitutions. While mourning the death of the 1997 Constitution, he asked could Fiji still retain its “multi-racial” co-operation while correcting the existing electoral faults?
Neither article addressed the elephant hiding in the room that Nilesh Lal (CEO of Dialogue Fiji) has cogently pointed out in his article “Fiji’s Parliament, does it still reflect the will of the people?” (Fiji Times August 24, 2025).
Nilesh asks the Fiji public: can the currently constituted Fiji Parliament make constitutional changes with genuine democratic legitimacy that is at the heart of the Supreme Court Opinion?
I would further ask: should not constitutional changes therefore be left till after the 2026/27 election based on the new Electoral System which was recommended two months ago by the independent Fiji Electoral Laws Reform Commission, chaired by former Chief Justice Daniel Fatiaki and comprising Fatiaki, Professor Narsey, Nabou and Brookes?
To recap the Supreme Court Opinion
The Supreme Court fully recognised that in 2006, the Bainimarama coup treasonously removed the Qarase Government democratically elected under the 1997 Constitution, approved by both Houses of Parliament and the GCC.
The Bainimarama government imposed its 2013 Constitution without the extensive public consultations that had been undertaken for the 1997 Constitution or the Yash Ghai Draft Constitution (rejected by the Bainimarama government), without any Parliamentary approval or Referendum.
The 2013 Constitution stipulates rigid rules for amendments: that any change to the 2013 Constitution must require a 75 per cent majority in Parliament and the approval of 75 per cent of registered voters in a referendum.
What the public know is that while the Bainimarama government controlled Parliament for eight years from 2014 to 2022 it never submitted its 2013 Constitution to Parliament for approval.
What the public know is that while the Bainimarama government oversaw elections in 2014, 2018 and 2022, it never implemented a referendum on the 2013 Constitution.
Nevertheless, FFP had a clear pattern of reducing voter turnouts and reducing voter support.
FFP in the elections of:
2014 59 per cent of votes with 85 per cent turnout (i.e support of 50 per cent of registered voters)
2018 50 per cent of votes with 72 per cent turnout (i.e. support of 36 per cent of registered voters)
2022 43 per cent of votes with 68 per cent turnout. (i.e. support of 29 per cent of registered voters).
So while FFP formed government after the 2014 and 2018 elections, they had nowhere near 75 per cent of the MPs in Parliament.
Also it was virtually impossible for FijiFirst party to ever obtain the support of 75 per cent of registered voters: since the best it got was 50 per cent in 2014, and reducing thereafter to 29 per cent in the 2022 elections.
There was therefore no way that the FFP could have obtained approval of the 2013 Constitution according to its own rules for any amendments — requiring three quarters of the MPs in Parliament and 75 per cent of all registered voters.
So the creator of the 2013 Constitution (you know who) told the people of Fiji: “to change a single line of the Constitution I am giving you, you must follow two rules which I never followed myself. Ha ha ha.”
What a sick joke. Except it is no joke for the people of Fiji.
The Supreme Court Opinion
The Supreme Court ruled that:
(a) it could only give an opinion on the questions posed to it if they assumed that the 2013 Constitution was still “effective” i.e. conversely, that the 1997 Constitution was not effective.
(b) despite the “democracy deficit” in the 2013 Constitution, the Supreme Court must respect the “common law of Fiji” — which comprised judge-made law stretching back in time, guiding all of Fiji’s relations in contract, tort, property, trusts, equity and statutory interpretations- the foundations of a “lawful” society.
(c) the people of Fiji had not mounted popular objections to the Bainimarama military government between 2006 and 2014.
(d) on the contrary, the people of Fiji had taken part in three general elections in 2014, 2018 and 2022, with Multinational Observer Groups concluding that the elections were generally credible, despite many deficiencies.
(e) the people and businesses of Fiji and the “Government of the Day” had conducted their business for 13 years (eight under the Bainimarama government and three under the Coalition Government) without any protest against the 2013 Constitution. The Supreme Court opined that these would all be thrown into disarray if the 2013 Constitution were now to be declared as not in existence.
The Supreme Court therefore ruled that the 2013 Constitution had to be recognised as being the “effective” “common law” of Fiji. Pragmatism had reigned supreme over purity of origin.
But it was only because of this victory of pragmatism over idealistic purity, that allowed the Supreme Court to declare that it could now give its opinion on the other questions posed to it by the Coalition Government, particularly the conditions ss 159 and 160 for amendment by parliament.
The conditions for amendments
Following extensive discussions, the Supreme Court concluded that “the right to self-determination of the people of Fiji … includes the right to shape their own constitution as they see fit from time to time”.
While it should not be “easy” for Parliament to amend the constitution, neither should it be totally difficult. The Supreme Court therefore ruled that any amendments could be made with
(a) two thirds (66 per cent) of the Parliament
(b) 50 per cent of a referendum vote conducted by the Electoral Commission.
The Supreme Court decided not to recommend the removal of the “immunity” provisions of the 2013 Constitution that stretched back to the events of the 1987 coup, the 2000 coup and mutiny and the 2006 coup. Hmmmm. Was there any conflict of interest for any of the Supreme Court judges giving the Opinion?
The “Democracy Deficit” in current Parliament
It is surprising that despite the Supreme Court Opinion on the need for parliamentary approval by a majority of two thirds of all MPs, there has been no discussion of the current less than “democratic” representation in Parliament.
The one exception has been an excellent article “Fiji’s Parliament, does it still reflect the will of the people?” (Fiji Times August 24, 2025) by Nilesh Lal (CEO of Dialogue Fiji.
Nilesh Lal points out the fine balance in Parliament after the 2022 elections, between the FFP (26 seats out of 55/with 43 per cent of vote) and the other three parties (PAP, NFP and SODELPA) who just managed to form government by 1 vote on the floor.
But then following the deregistration of FFP and departure of Bainimarama and Khaiyum from Parliament, the then Speaker (current President) made the astonishing ruling allowed the 26 FFP MPs to join any party. Nine of them gave their support to Rabuka, giving Government a totally inflated and artificial majority.
As Nilesh notes, “Fiji’s current Parliament no longer reflects the will of the people as expressed in the last election … without any new election to justify it. The Rabuka-led government today wields power far beyond its electoral mandate … a power obtained through backroom deals and opportunism rather than the ballot box …. [it] can even push through profound changes (like constitutional amendments or major policy reversals) that voters never consented to at the polls. This disconnect strikes at the heart of democratic legitimacy.”
The Fiji public must therefore ask: should this current Parliament be allowed push through constitutional changes or should there be fresh elections first, as are supposed to happen in any case in 2026/2027 under a reformed Electoral System?
Luckily for Fiji, the 2013 Constitution also defined a new electoral system with one national constituency, with proportionality and a 5 per cent rule for parties to qualify for Parliament, greatly criticised by the public. The Coalition Government rightly set out to reform this badly flawed electoral system, with its many democratic deficits.
Electoral Law Reform 2025 and a more democratic Parliament?
In February 2025, Rabuka’s Coalition Government through the Ministry of Justice and the Fiji Law Reform Commission appointed a four-person commission to advise on reform of the much criticised electoral system.
The website of the FLRC today states:
“The final report, titled Fiji Law Reform Commission Electoral Law Review 2025: An Electoral System FOR the People FROM the People, was officially presented to the Acting Attorney-General, Hon. Siromi Turaga, on 8 July 2025. The report marks a significant milestone in Fiji’s journey toward electoral reform and democratic enhancement.
The review was conducted with support from the Ministry of Justice, Electoral Commission, Ministry of Women, Ministry of Rural and Maritime Development, Ministry of iTaukei Affairs, Ministry of Information, and the Fijian Elections Office. It included a four-month nationwide consultation across all four divisions and Rotuma.
The process featured simulations with political parties, outreach in places of worship, villages, and universities, and materials translated into Vosa Vakaviti, Hindi, and Rotuman — demonstrating Fiji’s commitment to inclusive and participatory policymaking.
The Final Report will be made publicly available in due course.”
While I am not at liberty to reveal the report’s details, there have been many media reports on views expressed at these nation-wide consultations (all fully documented in the report with appendices of the Verbatim records) which clearly hint at the contents.
Throughout the country there were many criticisms of the existing one constituency electoral system with its “sudoku” style ballot paper with just hundreds of numbers, not names or pictures or party symbols.
The salient criticisms were: there was no direct link between voters in any area with their MP; the “Superman” effect allowed MPs into parliament with minimal votes while far more popular candidates could not enter parliament because of the 5 per cent threshold; local candidates could not get votes because they were effectively competing with every other candidate in the election (thank you Sukha Singh); effectively no MP could be rejected at the next election for not serving their “constituency”; effectively thousands of voters were disenfranchised, representing more than four MPs in Parliament (the current PM was elected by a margin of one); there was a general desire for more women MPs; and many others (such as removing the climate of fear at election time, all addressed in the detailed changes to the legislations”.
Many sensible voices from the public called for throwing the 2013 Constitution into the dustbin of history, given its dastardly origins.
But the Supreme Court Opinion very pragmatically ruled that the 2013 Constitution is effectively in existence.
While the Electoral Law Reform Commissioners had no inkling of the Supreme Court’s likely Opinion in September, I can reveal that the proposed Electoral System 2025, is in fact abiding by the 2013 Constitution requirements while making radical changes wanted by the Fiji public to strengthen democracy at all levels. In other words, the proposed new 2025 Electoral System is within the bounds of the 2013 Constitution.
Genuine democracy to come?
The proposed system will have numerous “open” constituencies as in the 1997 Constitution in which all ethnic groups will vote and stand as candidates equally.
This draws on Professor Jon Fraenkel’s astute observation that the LITERAL text of the 2013 Constitution only requires ONE ELECTORAL ROLL, NOT ONE CONSTITUENCY.
The FELRC saw the possibility that each local constituency can be easily defined by the Elections Office allocating “polling venues” which are stated in the Voter ID Cards, so no re-registration will be required. This exercise has indeed been easily conducted by the Fiji Elections Office technical staff with the assistance of FELRC Commissioners Daniel Faitiali and Seini Nabou.
What will the current MPs think?
I suspect many of the current MPs in Parliament will be relieved if they can go and campaign with their personal local constituencies for the next election, instead of relying on some “Superman” who is no longer allowed to stand or simply does not get the hoped for support at the next election.
With no ethnic constituencies, the Proposed 2025 Electoral System will maintain all the benefits of strict proportionality through a List for “popular losers” at the constituency level, with the proportionality complementary to the constituency results.
This proportionality is of course one of the benefits of the current 2013 Electoral System (bar the 5 per cent threshold effect).
One crucial benefit of proportionality in coup-prone Fiji is that given Fiji’s population composition, 63 per cent of the MPs in Parliament will be elected by the iTaukei voters (63 per cent of the total number of voters); likewise, 33 per cent of the MPs in Parliament will be elected by Indo-Fijian voters (33 per cent of the total).
Neither of the major ethnic groups can be marginalised as they were under the 1997 Electoral System, certainly not the iTaukei. I suspect that the 33 per cent of the Indo-Fijian elected MPs will be “king-makers” as currently.
The regionally distributed constituencies will also ensure that all local communities (even small island groups) will have their local MPs in Parliament to serve and be accountable for their local needs or pay the price at the next election. Voters will not have to depend on some distant “Superman”.
While there will be no ethnic constituencies there will be many constituencies reserved for women (but voted for by both men and women) satisfying Fiji’s international CEDAW commitments (reflecting the calls by women’s organisations).
The proposed 2025 Electoral System will not have the “Superman Effect” which Nilesh Lal (CEO of Dialogue Fiji) has correctly (but only lately) criticised since the 5 per cent threshold (which is in the 2013 Constitution) will apply only at the constituency level, with minimal effect.
Government needs Parliamentary Approval
With the Report of the Fiji Electoral Law Reform Commission completed and delivered on 8 July 2025, it would seem that it has every chance of being implemented by the Rabuka Government before the next election which is due in 2026 or before February 2027.
With a totally democratic freshly elected Parliament, the parties will in all probability comprise the same current ones (probably with increased numbers) plus those of the parties of Mr Mahendra Chaudhry and Mr Savenaca Narube (who have been previously unfairly excluded by the 5 per cent threshold rule).
The next Government will then have every democratic authority to propose any amendments to the 2013 Constitution.
I hope that one amendment, also popularly called for by the public, can be the re-establishment of an Upper House in which the GCC could be properly represented.
That would provide a very necessary “checks and balance” mechanism for the elected House of Representatives (the Lower House in the 1997 Constitution), which the current younger generation of voters (post 2006) have no inkling of the value of.
Sitiveni Rabuka will have then come full circle, again, as he did with the assistance of Mr Jai Ram Reddy with the 1997 Constitution.
n PROFESSOR WADAN NARSEY is a former Professor of Economics at The University of the South Pacific. The views expressed are his and not of the three other FELRC Members (Daniel Fatiaki, Seni Nabou and Deidre Brookes) nor does it reflect the views of this newspaper.
