Fiji’s Supreme Court has ruled that the 2013 Constitution remains the country’s governing law but declared parts of its rigid amendment provisions invalid.
Delivering it’s opinion in Suva today, the court acknowledged that the Constitution has been the basis of law and government since its inception, but said its recognition is “qualified” and carries a “democratic deficit” because it was imposed rather than chosen by the people.
“It does not follow that everyone admires or respects the 2013 Constitution, however, it was imposed on the people not chosen by them. There is therefore a democratic deficit,” the court said.
The bench found the original requirement for amendments — a three-quarters majority of MPs and three-quarters of all registered voters in a referendum — to be unworkable.
The Court said these provisions rendered the Constitution “virtually unamendable by requiring three-quarter majorities in Parliament and of all registered voters at a subsequent referendum, voting or not,” effectively disempowering citizens from effecting democratic change.
Instead, the Court ruled that amendments will be valid if supported by:
- two-thirds of all MPs in Parliament, and
- a majority of voters who take part in a referendum.
Explaining its reasoning, the Court stated: “We will not recognise the amendment provisions as they presently stand. We will recognise them as legally effective when interpreted to reduce the majority requirements to workable levels… In this way, we have recognised the basic structure… and have remedially interpreted them only to the extent necessary to make democratic control possible.”
The Court rejected the State’s position that the Constitution could be amended by a simple majority of Parliament.
It also confirmed that Chapter 10 on immunities cannot be altered, and that transitional provisions in Chapter 12 remain. However, it refused to recognise the clause preventing future amendment of the amendment rules themselves.
Summing up, the Court declared:
“Subject to declaration number two, the Court recognises the 2013 Constitution as the legally effective Constitution of the Republic of Fiji.”
It also ruled that the 1997 Constitution is not valid and applicable.
The case had been referred to the Court by the Cabinet, which sought clarity on whether the Constitution could ever be changed and on the legal effect of its entrenched provisions.
Excerpt from the Supreme Court opinion is outlined below:
The declarations made by the Court and the answers given to the questions asked are as follows:
[1] We make the following Declarations:
1. Subject to Declaration 2, the Court recognises the 2013 Constitution as the legally effective Constitution of the Republic of Fiji
2. In relation to Chapter 11, the recognition of the 2013 Constitution of the Republic of Fiji as legally effetive is limited as follows:
2.1 Recognition does not extend to s159(2)c).
2.2 Section 160(2)b) is recognised, but subject to the reading down of the words “three quarters” to “two thirds”.
2.3 Section 160(6) is recognised, but subject to the reading down of the words “three quarters of the total number of registered voters” to “a majority of those registered voters who vote in the referendum”.
In all other respects, ss 159 and 160 are recognised.
3. By reason of its recognition of the 2013 Constitution as set out in the preceding Declarations, the Supreme Court has the jurisdiction conferred apon it by s98(3)(c) read with s91(5).
2. In the exercise of its jurisdiction under s98(3)(c) of the 2013 Constitution, the Court expresses its opinion on the questions referred to it by Cabinet by way of the following answers.
Question (a): Are the provisions of Chapter 11 and of Part D of Chapter 12 of the Constitution of the Republic of Fiji binding on the people of Fiji, the Parliament of Fiji and the Supreme Court with the effeet that none of those provisions can ever be amended regardls of th will of Pariament or of the people voting in a referendum?
Opinion: The provisions referred to are binding to the extent that they have been declared by this Court to be legally effective.
Question (b): May the provisions referred to in [Question] (a) be amended following enactment of a Bill in Parliament to do so, in terms thought fit by Parliament?
Opinion: Amendment of the provisions of Chapter 11 recognised by the Court may be commenced by enactment ofa Bill in accordance with the procedures set out in s 160(2) and supported at the second and third readings by the votes of at least two-thirds of all members of Parliament.
Question (c): Is approval of any amendment proposed in aceordance with [Question) (b) effective only if approved by the people of Fiji at a referendum?
Opinion: Approval of any amendment to the Constitution by a majority of the registered voters voting in a referendum is necessary to make any amendment legally effective.
Question (d): Is any special majority, and if so in what proportion, necessary for an enactment under [Question] (b) or approval by referendum under [Question] (c)?
Opinion: Two-thirds of all members of Parliament must support an amending Bill at the second and third readings and a majority of voters voting in a referend um in relation the proposed amendment(s) must vote in favour of the amendment(s).
Question (e): Is the 1997 Constitution still valid and applicable?
Opinion: No.
