'Nullify 2013 Constitution, 1997 must return'

People’s Alliance Party lawyer Simione Valenitabua has told the Supreme Court that the 2013 Constitution should be recognised as invalid and urged the court to advise Cabinet to reinstate the 1997 Constitution with interim arrangements.

Making his submissions to the Supreme court today, Valenitabua said the 2013 Constitution “was not by public participation and that it was by a small number of people,” calling its legitimacy a “significant challenge” to Fiji’s democratic framework.

He argued that the abrogation of the 1997 Constitution in 2009 amounted to “an assault on the judiciary,” noting that the 2013 Constitution had been in force for over a decade without full public consent.

The matter before the supreme court involves a Cabinet reference requesting an opinion of the Supreme court on the interpretation and application of sections 159 and 160 of the 2013 Constitution.

Valenitabua told the court: “For us as I submitted in my submission, the 1997 constitution, we are submitting with respect, is the bridge and everything that has happened from 2009 until now is included in the water under the bridge. The 1997 constitution needs to take us across and which is why we are proposing, my Lord, that we retain the 1997 constitutional framework.”

He proposed that an interim administration be put in place while the 1997 Constitution is reinstated, and suggested that Parliament and the people decide whether to return to bicameral structures or maintain the current unicameral system.

“Our solutions, my Lord, we are suggesting we submit with respect practical solutions where your Lordships declare the 97 constitution applicable and valid and nullify the 2013 constitution,” Valenitabua told the court.

He also stressed the court’s role in upholding democratic values: “Any person interpreting or applying this constitution must promote the spirit, purpose, and objects of this constitution as a whole and the values that underlie a democratic society, based on human dignity, equality, and freedom.”

Valenitabua said the Supreme Court’s guidance is crucial for Cabinet to make a final decision, emphasizing the need for closure on what he described as “the first challenge ever on the validity of the 2013 constitution in the last 16 years since the first parliament since 2009.”

He concluded: “We need closure, my Lord. In Fiji, this issue keeps coming up, especially my client as a political party has been asked questions about this. So the court will need to put these rumours to rest and decide whether in 1997 constitution still remains in accordance with the question that was posed by Cabinet.”

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 Ribert 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? 

The State has been allocated one hour to argue its case and respond to five key questions referred by Cabinet.

Each of the nine interveners will have 40 minutes to present their arguments.