“I spend a fair amount of time defending the Rabuka Government because on their worst day they are still better than Bainimarama’s on their best day.
“Rabuka’s misfortune is that, unlike Bainimarama’s treasonous regime, the media have been free to report what they see since December 2022.”
I didn’t say that. That’s in a recent post from Charlie Charters, ex-Fiji journalist, sports personality and high-profile Facebook commentator, now famous for forensically (and humorously) dissecting the catastrophic FICAC Commission of Inquiry and its consequences.
But I am in that camp, for sure.
I have spent some of 2025 lugging my beaten-up old court briefcase past clicking cameras into various court or COI rooms. The year began with the Commission of Inquiry. The Constitution amendment case was somewhere in the middle. And now there are some high-profile FICAC prosecutions that will spill over into 2026.
One of the major, and often forgotten, achievements of the Coalition Government has been a significant strengthening of the judiciary. Commenting on courts can be hazardous (I know a little bit about that) and lawyers with live cases are probably best not to do it. But stop and think about it. Can you imagine a case on amending the Constitution going to the Supreme Court under Frank Bainimarama and Aiyaz Sayed-Khaiyum?
Frank and Aiyaz, of course, would say there was no need because the 2013 Constitution was perfect and delivered “true democracy” (a phrase that they wore out so thoroughly in their speeches that the phrase became a joke).
The Supreme Court didn’t agree. In its judgment four months ago the Supreme Court “read down” the parts of the 2013 Constitution that made it impossible to amend. So now a two-thirds majority of Parliament may vote through a change. But it must then go to a referendum – a vote of all Fiji citizens – to get a simple majority vote.
Fiji has never had a referendum. But if we want to change the Constitution, we will have to learn how to do it. And (as was pointed out in the Constitution case), we will need a referendum law to guide us on how.
At first sight a referendum is just an election where, instead of voting for people, we vote for an idea, usually involving a significant law change.
In 2024 Australians voted against a concept called “The Voice”, a mild constitutional change to improve recognition of its indigenous people. Eight years earlier, in 2016, 52% of British voters elected to leave the European Union (“Brexit”). This was a self-inflicted gunshot wound to their economy and global standing that has led to what pollsters now call “Bregret” – a consistent majority now wishing they hadn’t done it.
So, be careful what you wish (and vote) for.
A referendum, like an election, will be expensive. Fiji elections now cost around $30 million a time. So it saves money to hold a referendum at the same time as an election (it is also a way of getting better turnout – many people won’t bother turning out just to vote for a law change).
So now things are starting to get a bit more complicated. There seems to be strong support for changing the Constitution. That may be mostly about getting rid of the 2013 Constitution, disliked more for the way it was imposed than what is actually in it. So what should be changed? And when are we going to start talking about that? And when are we going to vote for it?
The Bill
In the meantime the National Referendum Bill has been presented to Parliament. Because I have a day job, I gave it little more than a glance. So it was only when the NGO Dialogue Fiji went public to blast certain parts of it that I paid attention.
You can find the Bill on Parliament’s website. It’s not very long (10 pages) so for those of us with short attention spans it doesn’t take long to read.
Most of the Bill is mechanical, inoffensive – and unimaginative. It does what you would expect it to. It sets out when we must have a referendum, it gives to the Supervisor of Elections the job of running it and basically says it will run like an election.
The Bill does not change the sterile and boring way Fiji elections are conducted these days. No party sheds or bright party banners allowed near polling stations like in the old days. No one motioning you into their corner to drink yaqona and talk politics (or rubbish). No busy traffic as faithful party drivers drive in the voters they’ve picked up from home (and praying they haven’t delivered a vote for the other side).
Instead, one day before the elections all the banners come down and we must all stop talking politics. On election day we all just stand quietly in regulated queues, do our voting and go away. We don’t celebrate the fact that we have a valuable democratic right denied to many of our fellow humans. We don’t bring our kids to socialise and learn how it all works. We can’t catch up with people in the sheds who we haven’t seen in years.
Maybe there is a certain mind-cleansing purity to all of this, but it’s just – boring.
I am pretty sure that most of us know before we get to the polling station who will get our vote, and we are not trading it for a paper plate of palau. And if you’re a party which foolishly thinks it can score a few extra votes that way, I say good luck to you.
Anyway, back to the Referendum Bill, because now it starts to get a little bit crazy.
Clauses 22 and 23 of the Bill are just strange. Read them for yourself (and put aside the inelegant drafting where the word “must” seems to be confused with “shall” or “may”).
Clause 22 seems to say that it is a crime ($1,000 fine or a year in prison) for anyone to (among many other things) publish an advertisement or a poster or wear a badge or do virtually anything “in connection with any referendum.”
You can’t do these things “at any time before, during or after such referendum.” (I’m not sure what the point is of stopping anyone after the referendum, but that’s what it says).
That’s surely not what was intended.
Curiously, section 22 doesn’t seem to stop you from merely talking to someone else “in connection with any referendum.” So I suppose you could hold a public meeting about it. You just couldn’t put up a notice telling anyone when you were going to have the meeting.
Was this rule intended to be only for the “blackout period” before the vote? But the Bill doesn’t even talk about a “blackout period” (that’s logical in its own way. No need for a blackout period if you’re not allowed to campaign at all).
Clause 23(1), however, seems to stop you from talking to people about some things. It seems you can talk about whether they should vote to change the constitution or not. But you can’t ask them to turn up to vote (surely this would be a good thing to do?). Equally, you can’t ask them to stay away.
Other silliness
There are other equally silly clauses. Under clause 25, five people wandering around on polling day causing “intimidation, alarm or annoyance” to any voter is deemed to be “unlawful assembly”. Where does that get us? Surely if even one person is threatening you over your vote that’s a crime right there?
Under clause 27, nobody under the age of 18 may take part in any “referendum activity”. So don’t bring your kids to a meeting, I guess, even your teenagers.
So what exactly is this Bill meant to do? What does it mean?
It’s surely obvious to most of us that if you tried to pass a law including clauses 22 and 23 a court would strike them down as breaching our basic rights of free expression (we can go to court for all of that stuff now).
So what is the Government thinking? Has someone just messed up?
Well – on that. Last week a curious statement came onto the Government Facebook page. The laws, it said, were intended to “ensure the orderly, transparent and impartial conduct of referendums, including the proper handling of referendum questions.”
Under the Constitution, the Government said, it was allowed to restrict freedom of expression within “reasonable limits.”
Finally, the Government said, it wouldn’t be a good idea to do interviews or talkback about all of this “without prior notification of confirmation from the Office of the Attorney-General”. This could lead to miscommunication and public confusion.”
I think we are already quite far down that road.
So now we have a Bill which seems to shut down any effective debate on referendum issues and, when questioned on it, the Government seems to be doubling down. The Government also seems to be saying to the critics “don’t speak out without checking with us first.”
This is sounding a lot like the FijiFirst Government (but without the menaces).
In fairness, it’s not quite like the days of Fiji First. After all, this is not a Bill that is going to be rammed through Parliament on two days’ notice, Fiji First-style. It is now in front of a committee of Parliament which is going to hear from the public on the changes that are needed – and after that it will, I hope, tell the Government to fix this mess.
