2013 Constitution ‘never reflected the people’s will’

The 2013 Constitution was forced on the people under a military regime and never reflected their will, the Human Rights and Anti-Discrimination Commission has told the Supreme Court.

Commission lawyer Alefina Vuki said unlike the 1997 Constitution, which was born of widespread and meaningful consultation through the Reeves Commission, the 2013 Constitution was imposed without consent.

“Participation must be active. It must be free. It must be meaningful, and it must be accessible,” Ms Vuki said.

“There was no substantial evidence to confirm that active, accessible, genuine and meaningful consultations were carried out with the people of Fiji.”

She argued that Fiji’s rigid amendment rules were undemocratic, breached international human rights obligations, and undermined Indigenous representation by dismantling the Great Council of Chiefs.

“The 2013 Constitution was imposed and did not embody the will and sovereignty of the people of Fiji,” Ms Vuki told the court.

On indigenous rights, Ms Vuki said the abolition of the Great Council of Chiefs (GCC) in 2012 was carried out in a manner that was “very humiliating” and left many iTaukei feeling wounded.

“As an indigenous person, I must say I understand the feeling of humiliation in the manner in which they were removed very publicly,” she said.

“It really hurt a lot of the indigenous people.”

The GCC has since been revived, she noted, but the Commission argued its removal under the 2013 framework highlighted the way indigenous voices were sidelined.

Ms Vuki said Fiji’s participation in the 2014, 2018 and 2022 elections could not be seen as an endorsement of the 2013 Constitution.

“Political parties saw elections as the only pathway to restore democracy, not so much as an endorsement of the Constitution. People were under duress,” she said.

The Commission said sections 159 and 160, which make the Constitution virtually unamendable without an almost impossible threshold, lacked democratic legitimacy.

It urged the Supreme Court to intervene and open a pathway to reform.

As a way forward, Ms Vuki proposed that any future constitutional amendments be subject to a national referendum requiring only a simple majority of votes cast, rather than the current near-impossible three-quarters majority and referendum hurdle.

"The referendum in our view should simply require a simple majority of actual votes cast at the referendum, rather than 75% of registered voters in Fiji."

The commission proposed a two thirds and not the three quarters referendum.

She also offered an alternative option — the establishment of a citizens’ assembly, representing the full diversity of Fijian society, to deliberate on and decide reforms in a way that better reflected the people’s sovereignty.

“The way forward must protect the human rights of a great majority of people in this country,” Ms Vuki said.

“We cannot support any pathway where human rights would be endangered, threatened, violated or suspended.”

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 Sikeli 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?