National Federation Party (NFP) lawyer Jon Apted has urged the bench to consider what he termed the “blue pencil approach” in determining the validity of constitutional amendment provisions under the 2013 Constitution.
Mr Apted, representing the NFP, submitted that while the Constitution as a whole may be recognised, the court has the authority to invalidate specific provisions that are inconsistent with fundamental democratic principles.
“Our principal submission is that the court can recognize the Constitution as a whole,” Mr Apted said.
“But treat a provision as enacted as invalid, in light of the democratic principles guaranteed under Section 3.”
Mr Apted submitted that if the court gives recognition to parts of the Constitution, it should apply principles derived from customary international law, especially democracy and self-determination.
“The court must balance rigidity with flexibility to meet the changing needs of the people.”
While Mr Apted noted earlier reservations about the requirement of a referendum for constitutional change, he acknowledged that allowing a two-thirds parliamentary majority alone might be too weak a safeguard.
“We would accept, if the court so decides, a blue pencil rule that maintains the referendum, but with a simple majority, striking out the three-quarters requirement,” he concluded.