Exiled Fijian lawyer claims Supreme Court ruling paves the way for a constitutional crisis

An exiled Fijian human rights lawyer believes the Supreme Court overreached its powers in ruling over amendments to the 2013 Constitution

Aman Ravindra-Singh - who fled from Fiji in 2022 to avoid jail for contempt of court - claims the court has paved the way for a long-running constitutional crisis.

Ravindra-Singh was convicted of contempt of court following a series of Facebook posts critical of the then-Prime Minister Frank Bainimarama and the former Attorney-General Aiyaz Sayed-Khaiyum.

"I fled the country to save my life," he told RNZ Pacific.

Fijian Prime Minister Sitiveni Rabuka has hinted that the coalition government may hold its first ever referendum following the landmark opinion, issued on 29 May.

The nation's highest court ruled that thresholds for constitutional amendments should be lowered, requiring only a two-thirds majority in parliament and a simple majority of voters in a referendum.

Currently, the Constitution requires a 75 percent threshold for both.

The ruling followed a three-day hearing last month, after Rabuka's Cabinet had sought clarification on making changes to parts of the Constitution in June.

Ravindra-Singh told Pacific Waves that the government's previous attempts to bring in a constitutional amendment bill were poor.

In March, Rabuka failed to get the 75 percent support needed in parliament during the bill's second reading.

Under previous provisions, an equal proportion of registered voters needed to back changes in a referendum.

"The Constitution impacts us, the people and we have been blindsided. There has been no national dialogue, no constitutional agenda or specifics provided to the people," Ravindra-Singh said.

"Constitutional amendments are meant to be difficult, so that political parties do not come and hijack the process and continue to change the Constitution as and when they please."

He claims the Supreme Court has overreached its authority.

"Where exactly are we headed and which political party is hijacking what part of the Constitution, we have no idea."

"The court has given the government the green light to do exactly as it wishes, with unfettered power.

"To say that a simple majority in a referendum will suffice is unfortunate, with national dialogue and compulsory voting the 75 percent requirement could have been achieved.

However, a Fijian academic, Distinguished Professor Steven Ratuva of Canterbury University in Aotearoa, disagrees.

"The two-thirds majority is the normal threshold for constitutional amendment in many countries, although the actual political mechanisms for amendment differ from country to country," Ratuva said.

Previous Fijian constitutions, such as the 1997 Constitution, had the two-thirds majority provision.

The referendum provided another layer of safeguard and the 50 percent threshold was similar to one used in Australia, although this was done at the state level, he said.

"While the 50 percent referendum requirement may seem low, in a situation of political fragmentation, it may not be easy to get over the line."

"Any constitutional amendment will only make sense if it is done with goodwill and with the national interest in mind, rather than just to satisfy narrow political interests," he added.

Ratuva said it looked like the government was in a hurry, with plans to put through an amendment bill in parliament.

"If it goes through, the question of the referendum will be an interesting one. Will they try to do it before the election next year or do it as the same time as the election?"

Ratuva said a referendum was a great way of directly engaging the people in democratic decision making.

However, because a referendum was basically a simple "Yes" or "No" exercise, the results would not necessarily reflect people's choices during the election, he said.

"Some parties who feel emboldened by the referendum result may be disappointed with the actual national election results," he said.

During last month's hearing, submissions came from the State, seven political parties, the Fiji Law society and the Fiji Human Rights and Anti-Discrimination Commission.

A senior Australian barrister pointed out the state had failed to specify exactly what it wanted to change so urgently.

And the Fijian Labour Party 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," said the FLP's barrister, Jagath Karunaratne.

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

However the prime minister has said that the court's opinion established a "clear and democratic pathway" for his government's constitutional reform efforts.

The Cabinet has set up a special subcommittee, led by Rabuka, to examine the court's findings and recommend the next steps.

A government statement said the subcommittee would consider the view of the people as it moved ahead.

"The court has given important guidance on how constitutional amendments should be interpreted and applied. This is a significant step in helping us understand the best way forward for any changes to the 2013 Constitution.

Rabuka has said he is confident that the two-thirds requirement for the amendment is achievable in parliament.