Fiji’s Electoral Commission says a Referendum Act is necessary to complete any attempt to amend the 2013 Constitution, following the Supreme Court’s August ruling.
Electoral Commission Chairperson Justice Usaia Ratuvili made the comments during the presentation of the 2022 General Elections Joint Report by the Electoral Commission and the Supervisor of Elections before the Standing Committee on Justice, Law and Human Rights this week.
“The commission has also alerted the Acting Attorney and the Minister for Justice, after the decision of the Supreme Court, we will need a referendum act to be passed, because without that, without that, any constitutional amendment process will be incomplete,” Justice Ratuvili said. “You might have the numbers in Parliament, but it requires a constitutional endorsement, referendum endorsement, basically by the people. And the Constitution is very clear. Referendum must be conducted under an Act. So basically, all these discussions would be academic, without a referendum constitutional process to be complete.”
A Referendum Act is required because the 2013 Constitution mandates that any amendment approved by Parliament must also be endorsed by voters in a nationwide referendum. However, no local laws currently exist to guide the conduct of referendums, leaving the constitutional process incomplete.
The Electoral Commission is constitutionally responsible for conducting referendums, notifying the President of the outcome, and publishing the results. Without enabling legislation, the Commission cannot legally carry out these duties.
Justice Ratuvili’s comments follow a Supreme Court ruling in August 29 this year, which clarified that amendments to certain constitutional provisions require both a two-thirds parliamentary majority and approval by a majority of voters in a referendum.
Earlier this year, a government attempt to amend the Constitution stalled. In March, a Constitution Amendment Bill proposed reducing parliamentary supermajority requirements and removing the referendum requirement. The Bill failed narrowly to secure the necessary three-quarters majority in the House of Representatives, prompting the cabinet to seek the opinion of the Supreme Court on the matter.
Legal experts note that Fiji currently has no local laws to facilitate referendums, raising doubts about the practical implementation of constitutional amendments.
Justice Ratuvili said the Electoral Commission’s advice to the Ministry of Justice reflects these realities, pointing out that without a Referendum Act, any discussion of constitutional amendments is only theoretical.
The Coalition Government has not yet indicated when it might introduce a Referendum Act, but since the August ruling it has established a subcommittee chaired by Prime Minister Sitiveni Rabuka to guide the next steps, taking into account practical and political considerations. Rabuka said the government will not dictate the content of the amendments but will adopt a consultative approach, engaging political parties, Parliament, and the public, drawing guidance from both the 1997 Constitution and the Yash Ghai draft.
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