Chief Justice Salesi Temo has affirmed that Fiji’s courts recognize the 2013 Constitution as the legally effective constitution of the country, despite acknowledging its controversial origins and lack of public endorsement.
Delivering the ruling, the Chief Justice stated that although Fijian courts have dealt with matters under the 2013 Constitution before, they had not previously addressed whether it is legally valid in the constitutional sense.
That question, he said, must be answered by applying the common law of Fiji — the same foundation that has guided the country’s legal system since the cession in 1874.
“The common law to which we look to develop and apply criteria of recognition to the Constitution has been a constant part of the law of Fiji through all of the upheavals of the last four decades,” Justice Temo said.
As a matter of common law, the court has determined it should recognize the 2013 Constitution due to its continued operation since inception, the passage of laws under it, and the holding of three general elections within its framework.
“The court takes judicial notice that individuals and businesses will have organized their affairs and made their arrangements in reliance on it,” he noted.
However, the Chief Justice acknowledged the Constitution’s democratic shortcomings, stating: “It was imposed on the people, not chosen by them. That is therefore a democratic deficit.”
He further pointed out that the Constitution’s amendment provisions render it “virtually unamendable,” raising further questions about its adaptability and responsiveness to democratic will.