2013 Constitution 'deliberately' locked against change — NFP

The National Federation Party (NFP) has backed the State’s submission that the amendment provisions of the 2013 Constitution were deliberately designed to shield it from amendments.

Making submissions before the Supreme Court today, NFP lawyer Jon Apted said his client, supported the State’s position that sections 159(2) and 160 of the Constitution should be declared unconstitutional, even though they appear within the Constitution itself.

“Like the submissions of the state this morning, the National Federation Party's principal submission is that the Constitution, the 2013 Constitution, was imposed on the people of Fiji,” Mr Apted said.

“The amendment provisions in Section 159(2) and 160 were deliberately drafted to shield the Constitution from amendment. They are fundamentally inconsistent with the principle of popular sovereignty, which is enshrined in the Constitution and reflected in both the preamble and section three.”

Mr Apted said that while NFP initially argued for a two-thirds parliamentary majority as a safeguard, the party was persuaded by the State’s submissions that requiring both a three-quarters majority in Parliament and a national referendum was an “impossible provision to meet.”

“We invite the court to hold that those provisions are unconstitutional, even though they are in the constitution,” he said.

He pointed to the Constitution amendment bill already before Parliament which had secured more than a two-thirds majority — although short of three-quarters — as a workable pathway forward if the court were to strike down the contested provisions.

“Should the court accept the submissions of the state that section 159(2) and 160 should be excised as contrary to the spirit and underlying value of the Constitution, we invite the court to advise cabinet that the bill that has already received the assent of more than two-thirds of Parliament may be presented to His Excellency for assent, and thereby amend the constitution so that a two-thirds majority of the House will be sufficient to amend the Constitution without a referendum.”

Mr Apted said referendums had never been part of Fiji’s constitutional amendment processes in 1970, 1990 or 1997, and their introduction in 2013 was deliberately designed to entrench the Constitution against change.

He also offered an alternative argument: that even if the 2013 Constitution had gained legitimacy through practice and the passage of time, the amendment provisions themselves had never been tested or accepted.

Mr Apted concluded that NFP agreed with the State in answering “no” to the court’s first reference question, affirming that the contested provisions were not consistent with Fiji’s constitutional values.

Background:

The Supreme Court of Fiji is hearing arguments this week on the government’s request for an opinion regarding proposed amendments to the 2013 Constitution.

Nine interveners, including the Office of the Solicitor-General representing the State, will present submissions before six judges at the Veiuto Court Complex in Suva.

The six judges are Chief Justice Salesi Temo, President of Court of Appeal, Justice Isikeli Mataitoga, Justice Terrence Arnold, Madam Justice Lowarrd Gordald, Justice William Young and Justice Robert French.

Cabinet is seeking the opinion of the Supreme Court through five questions including:

• Are the provisions of Chapter 11 and 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 effect that none of those provisions can ever be amended, regardless of the will of Parliament or of the people voting in a referendum?
• May the provisions referred to in (1) be amended following the enactment of a Bill in Parliament to do so, in terms thought fit by Parliament?
• Is the approval of any amendment proposed in accordance with (2) effective only if approved by the people of Fiji at a referendum?
• Is any special majority, and if so in what proportion, necessary for an enactment under (2) or approval by referendum under (3)?
• Is the 1997 Constitution still valid and applicable?