It would be difficult to revert to past constitutions, said Constitutional lawyer Jon Apted at the Attorney-General’s Conference at the Sheraton Fiji Resort and Spa in Nadi yesterday.
“There’s too much water under the bridge,” Mr Apted stated, referencing proposals to return to the 1997 constitution. He explained that logistical and institutional challenges, such as determining the composition of Parliament, Senate, and judiciary under the restored framework, render such a move impractical.
“There’s been proposals that we return to 1997 either by going to court and saying, we go back to 1997 because of the Qarase case and the Chandrika Prasad case and get the court to declare it, but it’s too late, there’s too much water under the bridge if we go back, who is the parliament, who is the Senate, who are the judges, who are hold all of these positions? There’s just too much water to go there. How does a restored constitution work? How would an election be organised? All of that is just too difficult.”
Mr Apted described Fiji’s current situation as a “unique moment for change,” noting that the political landscape has shifted, creating new opportunities for reform.
“FijiFirst has disappeared. Its remaining MPs in the House – miracle of miracles – have expressed a view that maybe there’s room for change in the Constitution. The obstacle in terms of consensus within the House has kind of disappeared a little bit.”
He referenced a recent Supreme Court judgment on judicial qualifications as evidence of a judiciary willing to adopt a “creative, purposive approach” to constitutional interpretation.
“There is an indication that the Supreme Court is willing to listen creatively and come up with a judgment that meets needs,” he added.
Mr Apted also highlighted various reform proposals, including reverting to the 1997 constitution, holding a referendum, and challenging the 2013 Constitution’s validity based on procedural grounds.
“For a referendum, the problem is: What’s the question? What’s the threshold? What’s the framework? What happens if some provisions are accepted, and others are not? Does the whole thing get rejected?” he asked.
“Another proposal has been made that we just have a referendum. But the problem with just having a referendum is, what’s the question? What’s the threshold, what’s the framework? So, you need to determine all of that first, if you’re going to do a wholesale proposal for a change to the Constitution, and you have a referendum. What happens if some of the provisions are acceptable when others are not? So, does the whole thing get rejected? So that’s not really a workable one.
Mr Apted’s remarks come amid growing calls for constitutional reform and a re-evaluation of governance structures in Fiji.
