'Blatant propaganda': Fiji lawyers, civil society push back against proposed National Referendum Bill

Fijian lawyers and civil society are pushing back on a bill that would create the country's first-ever legal framework for a referendum.

The National Referendum Bill 2025 was tabled at the final sitting of the Fijian parliament for year on 4 December.

The bill sets out how a constitutional amendment would work, after the government managed to ease provisions that made Fiji's 2013 Constitution almost impossible to change.

At the beginning of the year, any amendment required a three-quarters majority vote in referendum: not just of the voters, but every registered voter in Fiji.

But that changed after a Supreme Court opinion in August opened the door for a referendum to require only a simple majority of that population.

Now, with this new pathway, the government is seeking to control exactly how those referenda take place.

The bill prohibits a number of campaigning activities during a referendum. Section 22 outright bans any badges, symbols, or other campaign materials from being made and distributed, while Section 23 bans canvassing at the doorstep.

The latter section effectively makes it a criminal offence to communicate to voters on whether they should vote, or how. It covers communication "by word, message, writing, or any other manner", with a one-year prison penalty attached.

The Fijian government said the clauses "are intended solely to ensure the orderly, transparent, and impartial conduct of referendums, including the proper handling of referendum questions".

"It should also be emphasised that scheduling media appearances, such as talk-back shows, without prior notification or confirmation from the Office of the Acting Attorney-General and Minister for Justice can lead to miscommunication and public confusion," a government statement said.

Acting Attorney-General Siromi Turaga told parliament that there is a lack of legal framework to guide the conduct, administration and oversight of referendum.

"[The National Referendum Bill] fills that gap by establishing clear, transparent and accountable processes that will ensure that any national referendum will be carried out with integrity.

He added "what we have done is demonstrate to our supporters and the people of Fiji that we will implement what we've promised them."

'Blanket ban on campaigning'

For the Fiji Women's Rights Movement (FWRM), the bill presents a serious danger to freedom of expression.

Nalini Singh told RNZ Pacific the measures were draconian and capable of silencing large groups of under-represented people.

"We have to raise our voices around what we see as against our fundamental rights and freedoms... and these two clauses are of concern," she said.

"We [are] a society that thrives on discussion and talanoa, they're very visual people, our geography is such that we have rural maritime areas... how are we going to control this?"

Singh said that women, youth, and marginalised groups rely on grassroots organising, community discussions, and accessible communication channels to make their voices heard.

The provisions mirror a "blackout" period, typical of most democratic elections around the world, where ordinary campaign activity is prohibited leading up to when people will be queuing at the ballot box. Its purpose is generally to prevent on-the-day influencing, pressuring, or even intimidation.

Richard Naidu, a prominent Fijian attorney associated with the National Federation Party, regards the bill as attempting to spread that blackout period to the whole campaign when it comes to referenda.

"The drafting is just a bit careless," he said.

"I think all that's really happened is that, we have to hear from the government on what is intended, and I know the matter is going to a standing committee so it will get the scrutiny it deserves."

Fellow attorney Janet Mason said it is a clear attempt by the government to control the debate.

"Obviously, they don't want anybody to embark on a campaign of misinformation... but who's going to put out the material? Is the government going to put out it's own material, and isn't that just blatant propaganda?"

Dialogue Fiji described the text of the bill as containing "some of the most far-reaching and undemocratic restrictions on free expression ever proposed in Fiji".

It said the bill "constructs a referendum process that is state-controlled, speech-restricted and structurally biased, with the Supervisor of Elections becoming the only lawful source of referendum-related expression."

"This is about as undemocratic as it gets. It goes far beyond anything ever imposed by FijiFirst. In fact, it is significantly worse than the restrictions or anything that we saw under the previous government. It shuts down public participation entirely," Dialogue Fiji's executive director Nilesh Lal said.

The reform game

Fiji has long grappled with its constitution, marked by drafting and redrafting again and again since independence.

In 2013, then-Prime Minister Frank Bainarama threw out the country's 1997 Constitution and brought in his own. It ultimately left Fiji with a constitution that was nearly impossible to amend.

Under Section 160, a three-quarters majority in parliament would be required for an amendment, followed by a referendum carrying three-quarters of the entire registered voting population.

Section 159 made sure there was no other way to do it.

In the 2022 election, there were 693,915 registered voters, but only a 68.30 percent turnout. Theoretically, if every single voter in the previous election that turned out and voted 'yes' on an amendment, it would still not have been enough to pass it.

The government attempted a change to both sections in March.

The Constitution (Amendment) Bill sought to kill the need for a referendum at all, while allowing updates to constitutional provisions without a supermajority in parliament.

The bill failed, forcing the government to change tact. They had to challenge whether the 2013 constitution was legally legitimate, and in doing so, prompt the court to reinterpret any section accordingly.

On Sections 159 and 160, the court delivered: "We regard the amendment provisions of the Constitution as rendering it virtually unamendable by requiring three-quarter majorities in parliament and of all registered voters at a subsequent referendum, voting or not" the opinion read.

"[The 2013 Constitution] was imposed on the people, not chosen by them. There is therefore a democratic deficit... This mechanism effectively disempowers the people as a whole from effecting democratic change."

From that point on, an amendment could pass with a two-thirds majority in parliament, and a simple majority at referendum.

In Fiji's 55 seat parliament, 29 MPs belong to the government, but an amendment would require 37 votes.

Strategically, a referendum offers politicians a bargaining chip when it comes to winning support for a bill. By slapping on a referendum, an MP could appear to support a public say on an issue, rather than appear to support it themselves.

The statutory deadline for an election puts the furthest possible date at around February 2027. With time running out before the government is required to call an election, Naidu said the bill's drafting was clearly rushed.

"It probably would have been more sensible to just shop the bill around first, with a few key stakeholders, before introducing it to parliament," he said.

"The question is how the government is going to go about constitutional review. Are we going to have a completely new constitution? The government has already signalled there could be a Constitutional Review Commission, and people would be able to make submissions to it."

Mason said there was enough manoeuvring on the part of Prime Minister Sitiveni Rabuka so that he may have a good enough chance to win those 37 votes when the time came.

"[The March bill] required 75 percent, they had 75 percent, but they were short by one," Mason said.

"If they're short by one on 75 percent of the parliament, then of course they'll make the two thirds."