Fiji's 2013 Constitution Photo: RNZ Pacific / Kelvin Anthony
Fiji's Supreme Court has declared that the majority requirements for amending the 2013 Constitution should be lowered to require less support from members of parliament and a simple majority of voters in a referendum.
The Court also ruled on Friday that those behind the 1987 and 2000 coups will remain immune from prosecution, in the interests of "stability and continuity".
It delivered its opinion following a week-long hearing brought by the Sitiveni Rabuka-led coalition government to seek clarification on making amendments the 2013 Constitution.
The government was seeking the Supreme Court's view on the interpretation and application of sections 159 and 160, which concern the process of changing the Constitution.
The controversial document currently requires 75 percent of MPs and an equal percentage of registered voters in a referendum to support changes to it.
However, the Court found that the current provisions rendered the document "virtually unnamendable, disempowering the people as a whole from effecting democratic change".
It has changed the majority requirements, to only two thirds of all MPs, plus a simple majority of electors voting at referendum.
"In this way, we have recognised the basic structure of the amendment provisions, requiring approval from both members of Parliament and voters, and have remedially interpreted them only to the extent necessary to make democratic control possible."
"In so doing we do not accept the contention of the State that the Constitution can be amended merely by a simple majority of the Parliament."
The Court's view was that the 1997 Constitution was not valid, given there had been three general elections under the current 2013 Constitution.
"It does not follow that everyone admires or respects it (the 2013 Constitution) however, it was imposed on the people, not chosen by them. There is therefore a democratic deficit."
"It is our view that the qualified recognition we give to the 2013 Constitution empowers the people of Fiji to undertake such changes as they think appropriate - making change feasible but not making it so easy that it can too readily be effected by one interest group or another."
The Court said that the provision for amendment did not extend to the immunity section of the Constitution.
This means that the immunity clause for those who carried out the 1987 and 2000 coups will stay and cannot be changed.
The government is specifically seeking the Supreme Court's opinion on the interpretation and application of sections 159 and 160, which concern the process of amending the 2013 Constitution. Photo: RNZ Pacific / Kelvin Anthony
In response to the ruling Prime Minister Sitiveni Rabuka released a statement saying the coalition government welcomed the opinion of the Supreme Court which has been referred to cabinet.
"This opinion provides clarity on matters of constitutional law and governance. It will now go before Cabinet for further deliberation, after which I, as Head of Government, will announce the way forward.
"The Coalition Government's approach has always been to seek clarity from the Courts rather than impose unilateral change. This outcome reflects our commitment to the rule of law, and to inclusive, democratic decision making," Rabuka's statement said.
Prime Minister Sitiveni Rabuka says the 2013 Constitution was neither formulated nor adopted through a participatory democratic process. 11 March 2025 Photo: Parliament of the Republic of Fiji
A senior Australian barrister challenged the State during the hearing last week, questioning why it wants to urgently alter the country's constitution.
Arthur Moses SC, who was representing the Fiji Law Society said the State had not explained what it wanted to change in the controversial document.
"[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.
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."
The Fijian government is seeking the Supreme Court's opinion on the interpretation and application of sections 159 and 160 of the 2013 Constitution, which concern the process of changing the Constitution. Photo: Screengrab / Fiji Government/YouTube
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 government will be able to trample on those rights. It will be able to do as it pleases, at any given time," he said.
