2013 Constitution amendment provisions are undemocratic - Human Rights Commission

The Fiji Human Rights and Anti Discrimination Commission says the amendments provisions in the 2013 Constitution are overly rigid, undemocratic and must be rendered invalid or revised by the Supreme Court.

While making submissions in the matter where the Cabinet has sought the opinion of the Supreme Court for the interpretation and application of the 2013 Constitution, Human Rights Commissioner Alefina Vuki says these amendment provisions were imposed without genuine public consultation, they originate from an undemocratic process under a military regime, they violate the principle of self determination and popular sovereignty and thus lack democratic legitimacy.

She says in their assessment, they have concluded that the 1997 Constitution was the one most widely consulted and it was active, free, meaningful and accessible to the people of Fiji and therefore reflected the will of the people of Fiji.

Vuki says the amendment provisions in the 2013 Constitution are not absolutely binding and can be amended, though the current process makes it extremely difficult to to do so.

She says the provisions are inconsistent with Article 1 on the right to self determination in the International Covenant on Civil and Political Right and the International Covenant on Economic, Social and Cultural Rights as well as Article 21 on the United Declarations on Human Rights and with Article 25 on on the International Covenant on Civil and Political Rights.

The Commissioner says as a State party must align domestic laws with these obligations.

Vuki also says the 2013 Constitution removed the Great Council of Chiefs, thereby undermining and weakening indigenous representation and the manner in which they did this in the public space was indeed very humiliating and it really hurt a lot of the indigenous people.

She says as an indigenous person, she understands the feeling of humiliation in the manner in which they were removed very publicly but they were revived so it's very important that sensitivity in relation to their rights are actively addressed.

Vuki further says the participation in the 2014, 2018 and 2022 elections under the 2013 Constitution does not necessarily imply acceptance of the constitution itself, because from their research and also because she lived through all of this, the political parties saw elections as the only pathway to restore democracy, not so much as an endorsement of the Constitution.

She says this was an acquiescence of the Constitution under duress for the necessary purpose of restoring democracy because if they did not go that way, the other alternative was for the military regime to continue on the repressive.

While responding to questions from the bench about the favourable assessments of the three elections by Multinational Observer Groups, she says having lived through the events in Fiji, she could not give their credibility a full endorsement.

The Commissioner also says the current requirement of 75 percent of registered voters in a referendum is undemocratic and unrealistic, and must be repealed.

She says a balance must be struck between a constitution that is too rigid, like the current 2013 Constitution, and one that is too easily amendable.

The Commissioner says Parliament can amend these provisions through a bill provided that the terms of amendment align with international human rights standards and democratic principles.

Vuki also says that as an alternative to a referendum could be a constituent Citizens Assembly but they be only consultative and whatever decision they reach is not legally binding, but serves as a gauge to measure the people's will and their mood concerning particular issues.

With apprehension, she says another alternative could be the doctrine of necessity.

The doctrine of necessity is a legal principle that allows otherwise unlawful or unconstitutional actions to be considered valid if they are taken to preserve the stability, continuity, or functioning of the state in extraordinary circumstances.

She says in relation to the doctrine of necessity and the Constitutional Advisory Committee, the Supreme Court may consider whether the doctrine of necessity can justify amending sections 159 and 160 through legislation that bypasses the 75 percent thresholds.

Vuki says if so, the Court may consider advising the government to form a special advisory committee of constitutional experts to determine where a supermajority should apply to protect entrenched human rights provisions.

The hearing continues in the Supreme Court.