Fiji Law Society challenges State to clarify intent behind push for constitutional amendments

An Australian barrister challenged the Fijian State in the Supreme Court this week, questioning why it wants to urgently alter the country's constitution.

Arthur Moses SC, who was representing the Fiji Law Society during a constitutional case hearing, said the State had not explained what it wanted to change in the controversial document.

The hearing was brought by the government to seek clarification on making amendments to the controversial 2013 Constitution.

The government is seeking the court's opinion on the interpretation and application of sections 159 and 160, which concern the process of changing the document.

"Not a word has been said by counsel for the State as to what it is in the Constitution that they want to amend," Moses said.

He questioned why the matter was rushed to court after Prime Minister Sitiveni Rabuka failed to get enough support from parliament during the Constitutional Amendment Bill's second reading in March.

"They were practically tripping over themselves to get to court, claiming the Constitution was impossible and needed rewriting.

"What exactly do they want to change in it? They haven't told us. I am not imputing bad motives to the State, but you have to look at the consequences of what you do when proposing an amendment like this.

"[The State] basically want us to reduce the Constitution so it can be amended like any other piece of legislation. And that's what they are doing," he said.

He said the 2013 Constitution, the supreme law of the country, was designed to enable change, and although that might be difficult, it was not impossible.

'True mother of Fiji'

Simione Valenitabua, who appeared for the ruling People's Alliance Party (PAP), took the opposite view.

"The 2013 Constitution is illegitimate, it was invalid from the beginning. The 1997 Constitution must be declared as valid and applicable," Valenitabua said.

"Fiji is torn between two constitutional claims, but the 1997 Constitution was born of unanimous parliamentary approval, approved in both houses, after public consultation and approval."

The constitutional amendment provisions within the 1990 Constitution were followed to the letter and there was a constitutional review committee, he said.

"The 1997 Constitution is the true mother of Fiji. By contrast the 2013 constitution was imposed by decree after an unlawful coup, in defiance of our judiciary's rulings through the Court of Appeal."

"We say that the 2013 Constitution is the impostor, but it is up to the Court to determine which Constitution deserves Fiji's allegiance."

The 2013 Constitution did not include a clause granting the court explicit power to invalidate it; in fact, it was protected from judicial scrutiny, he said.

Parliament was the law making body, but it was up to the court to tell parliament what the law was, he said.

"The 2013 Constitution was done in secret, its commission disbanded, its draft burned, then it was imposed upon us by decree, not even a pretence of a referendum."

"When the Court of Appeal ruled the 2006 coup unlawful, the regime responded by abrogating the Constitution, they committed the ultimate contempt," Valenitabua said.

Meanwhile, the Fiji Labour Party's barrister Jagath Karunaratne issued a warning.

"[The State] seeks to make it easier for them to change the Constitution, so that they do not have to abide by the concept of equality in a liberal democracy.

"So they do not have to respect human or minority rights, if it becomes inconvenient for the majority," Karunaratne said.

"Democracy is not about having an electoral mechanism to elect members into parliament, it is scalable, based on the level of protection of human rights, human dignity and an independent judicial system."

"If this court lowers the bar and allows the state to pass a simple bill in parliament to amend the Constitution, the govenment will be able to trample on those rights. It will be able to do as it pleases, at any given time," he said.

Australian barrister Bret Walker SC, appearing as lead counsel for the Cabinet, said the Constitution must reflect the will of the people.

He said parliamentary democracy and the rule of law had to work in tandem to uphold the legitimacy of self-government.

"There are at least two fundament features of the Fijian polity reflected in its Constitution,'" Walker said.

"First democracy through parliamentary government, free and fair elections and equality of votes and second, the rule of law, given effect by judicial enforcement."

One of Rabuka's deputies, Manoa Kamikamica, told Pacific Waves soon after the bill flopped that the 2013 Constitution "legalised dictatorship".

In May, Fiji's Great Council of Chiefs - the highest ranking body of indigenous Fijian leadership - unanimously rejected the 2013 Constitution, declaring it unfit for purpose.

On Thursday, police refused to grant a permit for a public march against the document, citing national safety concerns.

The march was organised by former MP Niko Nawaikula, who is president of the SWN (Stand with Niko) Advocacy Group.

Nawaikula is claiming the refusal to march was a "violation of constitutional rights" under the 2013 Constitution.

The Supreme Court is expected to deliver its formal opinion on 5 September.