TWO intervening political parties in the landmark constitutional reference case have declared their intent to challenge the legitimacy of the 2013 Constitution by questioning the legality of its foundation.
Yesterday, legal representatives from the Unity Fiji party and The People’s Alliance party (PAP) confirmed they would focus their submissions on whether the 1997 Constitution remains valid and enforceable.
The core of their argument is centred on what they call the unconstitutional exercise of “prerogative powers” by former President Ratu Josefa Iloilo in 2009 when he declared the 1997 Constitution abrogated following a Court of Appeal ruling that the post-2006 coup government was illegal.
Unity Fiji party lawyer Naomi Raikaci said their submission would address reference point 5(e) in the court’s agenda, the validity of the 1997 constitution.
“We will focus on that because that will impeach the making of the 2013 Constitution and the constitutional processes that have been formed,” Ms Raikaci said.
“If they are not followed, then the 1997 Constitution might still be valid.”
PAP lawyers Simione Valenitabua and Nemani Tuifagalele confirmed the party would make similar arguments.
“In our view, the question about number 5(e) will have to be determined first,” Mr Valenitabua said.
“If the 1997 constitution remains, then the other questions fall out.”
He said their submission would include a review of constitutional law across jurisdictions and emphasise the legal and democratic legitimacy of the 1997 Constitution, which was developed following public consultations and endorsed by both houses of Parliament.
Mr Valenitabua also signaled PAP would rely on the precedent set by the Qarase v Bainimarama Court of Appeal decision” which found that prerogative powers did not justify the 2006 coup or the constitutional changes that followed.
“We will argue that decree number one is invalid and therefore the unified constitution (of 2013) is void from the outset.”
Chief Justice Salesi Temo welcomed the proposed focus of the submissions, calling it “quite interesting” and expressing his anticipation for their legal arguments in August.
