'No jurisdiction for Supreme Court on Constitution'

The Constitutional Amendment hearing took a dramatic turn yesterday after the Fiji Law Society (FLS) and Fiji Labour Party (FLP) strongly objected to the Supreme Court of Fiji having any role in the matter.

The two parties were among the last interveners to make oral submissions before the six-member bench at the Veiuto Court Complex.

The full sitting was broadcast live on the Fiji Government YouTube channel and the FBC Walesi platform.

Fiji Law Society

FLS King’s Counsel Arthur Moses told the court the Supreme Court did not have the jurisdiction to hear the case, warning that the State’s proposal would strip Fijians of their democratic rights.

“What the State is asking is to excise from its people; so, to enhance democracy, we’re going to minimise democracy by taking the people out of the vote and reduce it to two thirds,” Mr Moses said.

“Your honour’s views are your views as to what the Constitution should be, but that’s not your role. That is the role of the people; and we must be very careful and take a step back.”

He stressed that accepting the State’s request would be “a perversion of judicial power.”

Fiji Labour Party

FLP counsel Jagath Karunaratne echoed the concern, telling the court the process was “plainly inconsistent” with sections 159 and 160 of the Constitution.

“The Supreme Court of Fiji has no lawful jurisdiction to lend its opinion in support of a constitutional amendment process,” he said.
“To do so would undermine both the supremacy of the Constitution and the rule of law. The State is attempting to attack the rule of law – one that has governed and protected human rights and enforced the Constitution.”

He described the State’s stance that Fiji was “a nation in transition” as “appalling,” warning it risked creating fear and distrust.

FLP assisting counsel Siddarth Nandan added: “The State should do the work first and get the Bill passed in Parliament or by a referendum, after which it should then be tested out in the High Court of Fiji. They have a constitutional and democratic responsibility to engage in a meaningful dialogue with the opposition and other political parties… it has not done so.”

Fiji Human Rights and Anti-Discrimination Commission

By contrast, Human Rights and Anti-Discrimination Commission director Alefina Vuki urged the Supreme Court to intervene, arguing the 2013 Constitution was imposed under military rule and “never reflected the will of the people.”

“Unlike the 1997 Constitution, which was born of widespread and meaningful consultation through the Reeves Commission, the 2013 Constitution was imposed without consent,” Ms Vuki said.

She said the abolition of the Great Council of Chiefs was carried out in a way that was “very humiliating” for the iTaukei.
“As an indigenous person, I must say I understand the feeling of humiliation in the manner in which they were removed very publicly. It really hurt a lot of the indigenous people.”

Unity Fiji Party

Unity Fiji representative Naomi Raikaci told the court the 1997 Constitution was still the supreme law of the land as it was never lawfully abrogated.

She argued the 2013 Constitution was tied to the 1997 version and still awaited judicial determination. Chief Justice Salesi Temo challenged that view, saying the 2013 Constitution had guided Fiji for the past 16 years.

As of yesterday, all nine interveners had completed their oral submissions. Today, the amicus curiae (assisting counsels) are expected to present before the State responds to the Court’s two questions.