Supreme Court of Fiji Hears Landmark Reference on Constitutional Amendment Provisions

By Ruth Garry

From 18 to 20 August 2025, the Supreme Court of Fiji sat in an extraordinary sitting broadcast live to the nation. The proceedings, which drew wide public interest, arose under sections 91(5) and 98(3)(c) of the Constitution of the Republic of Fiji, which empowers the Cabinet to seek an advisory opinion from the Supreme Court on questions of constitutional interpretation and application.

The matter, registered as Miscellaneous Action No. 01 of 2025, concerns the proper construction of sections 159 and 160 of the Constitution, provisions that govern the amendment of Fiji’s supreme law. The panel comprised the Honourable President of the Supreme Court, Chief Justice Salesi Temo, together with Justices Terrence Arnold, Lowell Goddard, William Young, Robert French, and Isikeli Mataitoga.

The State and nine interveners participated in the proceedings, each advancing sharply contrasting views on Fiji’s constitutional framework.

Issues before the Supreme Court

Cabinet referred several questions to the Supreme Court for its opinion, summarized as follows:

1. Amenability of Certain Provisions - The Court was asked whether specific parts of the 2013 Constitution - particularly those governing how the Constitution can be amended - are themselves amendable.

   
   

2. Thresholds and Processes for Amendment – The Court was asked to clarify the required thresholds and procedural steps needed to amend the Constitution - whether a simple majority, a two-thirds majority, or binding referendum is necessary.

   
   

3. Validity of the Abrogation of the 1997 Constitution - Closely related, the Court was asked to consider whether the 1997 Constitution was validly abrogated, and more fundamentally, whether the 2013 Constitution itself is legally valid or void.

   
   

4. Legal Status of the 1997 Constitution – Another question put to the Court was whether the 1997 Constitution remains legally valid and applicable, or whether it has been effectively superseded or abrogated.

   
   

5. Binding Nature of Transitional Provisions - The reference also asked the Court to examine whether the amendment provisions and transitional clauses of the 2013 Constitution are binding on all parts of Fiji’s legal and governmental system - namely the people, Parliament, and the judiciary (including the Supreme Court).

These questions strike at the heart of Fiji’s constitutional order, requiring the Supreme Court to grapple with the tension between legality, legitimacy and democratic authority.

The State

The State, represented by Senior Counsel Brett Walker SC, urged the Court to fulfil its constitutional duty and “determine” the issues, notwithstanding their political and historical complexity.

Mr. Walker argued that the rigid amendment process outlined in section 160 cannot reasonably be applied to altering section 160.  According to Mr Walker, section 159(2)(c) never posed an obstacle, and there was no need to strictly observe section 160 in this context.

Moreover, Walker cautioned the Supreme Court against imposing judicial constraints on the will of the parliamentary majority, warning that such interference could undermine the democratic process.

National Federation Party

Appearing for the National Federation Party (NFP), prominent lawyer Jon Apted called for a broader constitutional review. Mr Apted challenged the ambiguity of section 160(4) where it reads that “a referendum for the purposes of subsection (3) shall be conducted by the Electoral Commission in such a manner as prescribed by written law”. He stated that there is no written law explaining how referendums should be run – this being sufficient proof that it was not meant to happen in the first place. Mr Apted argued that the sections 159 (2) and 160 were “illusory” in nature in that they allow for amendment but in reality it would be near impossible to amend the 2013 Constitution.

Mr Apted submitted that the present constitutional order had led to a diminution of human rights protections and weakened the separation of powers. The NFP also expressed concern that the electoral system entrenched by the 2013 Constitution fosters a “ruler-centred, not “people-centred” style of governance, warning of the dangers of concentrating too much authority in the executive.

People’s Alliance Party

Simione Valenitabua, counsel for the People’s Alliance Party (PAP), advanced perhaps the most uncompromising position. He described the 2013 Constitution as illegitimate from inception, arguing that it was imposed by decree in the aftermath of an unlawful coup and bolstered by so-called ouster clauses designed to insulate it from judicial scrutiny.

The PAP submitted that the 1997 Constitution remains the true and valid Constitution of Fiji, having been the product of democratic consultation and due legal process. Mr. Valenitabua invoked the biblical story of King Solomon, likening the 1997 Constitution to the “true mother” and the 2013 Constitution to an “imposter.”

Fiji Human Rights & Anti-Discrimination Commission

The Fiji Human Rights & Anti-Discrimination Commission, represented by Alefina Vuki, aligned itself with arguments questioning the legitimacy of the 2013 Constitution. The Commission emphasized that the 1997 Constitution reflected the will of the people, whereas the 2013 text did not embody popular sovereignty.

Particular emphasis was placed on the stringent requirements under sections 159 and 160 for constitutional amendment — namely, a 75% parliamentary majority coupled with a national referendum. Ms Vuki warned that such a high threshold risks stifling democratic participation and entrenching rigidity in Fiji’s constitutional order.

Fiji Law Society

In contrast, the Fiji Law Society (FLS), represented by Arthur Moses SC and FSL President Wylie Clark, firmly rejected arguments seeking to displace the 2013 Constitution. The FLS urged the Court to affirm that it lacks authority to alter or set aside Fiji’s current Constitution.

Mr. Moses stressed that the 2013 Constitution is Fiji’s supreme law, and while reform may be desirable, it must occur through lawful processes rather than judicial fiat. “To protect and enhance democracy,” he argued, “it is the people’s role to amend the Constitution - not the Court.”

Conclusion

The proceedings underscore Fiji’s enduring constitutional tensions: between legality and legitimacy, continuity and rupture, and rigidity and flexibility. With submissions from seasoned local and international counsel, the hearings illuminated divergent visions for Fiji’s constitutional future.

Originally scheduled for 5 September 2025, the Supreme Court’s advisory opinion is now anticipated earlier, with the nation waiting keenly to see how the Court navigates one of the most consequential constitutional questions in decades.