Cabinet seeks Supreme Court opinion on constitutional amendment process

The Coalition Government will now regroup and take the 2013 Constitution amendment issue to the Supreme Court.

Minister for Justice, Siromi Turaga says this is urgent and they could go to court as early as next week.

Attorney General Graham Leung says they will regroup and see what is the next step.

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Leung says the constitution needs to be amended.

Deputy Prime Minister and Minister for Finance Professor Biman Prasad says he is disappointed because he feels that the opposition missed a historic opportunity to look at the review of the Constitution.

Professor Prasad says the opposition all agreed for the Constitution to be reviewed, but they were confused about the processes.

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He says this was a procedural Bill and one that would have started the process of a successful outcome for the review of the Constitution.

40 MPs voted for the Bill to amend the Constitution, 14 MPs voted against it while 1 did not vote. This means the 75 percent threshold set in the Constitution was not met.

He says this was a procedural Bill and one that would have started the process of a successful outcome for the review of the Constitution.

40 MPs voted for the Bill to amend the Constitution, 14 MPs voted against it while 1 did not vote. This means the 75 percent threshold set in the Constitution was not met.

As the coalition government gets ready to take the 2013 Constitution to the Supreme Court for a determination on the amendment provision, former Attorney General who is one of the main architects of the constitution, Aiyaz Sayed-Khaiyum says the government needs to follow the provision that states that 75 percent of MPs and 75 percent of the total registered voters in a national referendum have to agree to any changes.

@fijivillage.com There was already an immunity provision in the previous constitution - Sayed-Khaiyum #fiji ♬ original sound - fijivillage

Although the 2013 Constitution did not go through the parliamentary process before it came into effect and also did not go through the national referendum process, Sayed-Khaiyum says the document was born out of the People’s Charter process and the government should follow what is in the document.

When questioned regarding the immunity clause in the constitution to protect those who were behind the 1987 and 2006 coups, Sayed-Khaiyum says there was already an immunity provision in the previous constitution.

While speaking in support for amendments, Attorney General, Graham Leung had said the current amendment provision makes it one of the hardest Constitutions in the world to amend.

@fijivillage.com Aiyaz wants parliament and referendum threshold followed #fiji #fyp ♬ original sound - fijivillage

He says it seeks an impossible level of participation and consensus, and it was meant to be that way to preserve forever the handiwork of those who imposed the 2013 Constitution.

Leung says it is not a mechanism to support popular sovereignty - it is and was deliberately designed to be a measures to defeat the will of the people and to exercise perpetual control over them.

He stresses the last Constitution of Fiji that was established by a democratic process, was the 1997 Constitution and it was the product of a review, chaired by the former Governor General of New Zealand, Sir Paul Reeves, and that Constitution, was passed unanimously by the bicameral legislature of Fiji at the time.

Leung adds there are some noble features in the 2013 Constitution and they are not saying that it is wholly bad.

He says for example, equal citizenship, non-discrimination, reduction in the voting age to 18, parts of the Bill of Rights and a common name for our citizens are commendable provisions, and he supports them.

Leung says there is absolutely no intention to change the foundations of the Constitution but there are other parts, of this Constitution which are troubling and should be changed.

He says there is nothing democratic about a constitution which allows for someone with 500 votes to enter Parliament, and yet it shuts the door on a candidate who has received 5000 votes.

Leung says this Constitution does not permit the holding of by-election, and it deprives voters of a chance to assess their support of the sitting Government or of the candidate that has vacated the seat.

He says with due respect, 71 references to the office of the Attorney General and the Attorney himself, is unacceptable, and it vests power in one individual and could be a potential for abuse in the wrong hands.

Leung says if you look at the Section 6(5) of the Bill of Rights, it allows for limitations of human rights that are not specifically laid out in the Constitution.

If the 2013 Constitution is not changed, people will be going to have another general election under the same electoral system.

Electoral Law Reform Commission chairman, Daniel Fatiaki stressed this while giving an update on the Commission’s next step regarding the review of the electoral system.

Fatiaki says the new electoral system cannot come into place without constitutional change.

He says they want to leave a legacy behind that will benefit the future generation.

The Chairperson says he is going to give the best electoral system through his report that the people deserve, however, it depends on the people how they want to run with it.

Fatiaki says he can't guarantee that his report will see the light of day because the Constitution is a huge barrier to implementation.

He further says no matter what the government's will is they will still have to move ahead with the Constitution if it remains unchanged.

Fatiaki says it's between now and February 27th to get the constitutional changes put in place and adopt their electoral recommendations.

Will there be a change in the electoral system for Fiji before the next elections?

That can only happen if the 2013 Constitution is also changed.

When questioned by fijivillage News, Prime Minister, Sitiveni Rabuka says Electoral Law Reform Commission Chairperson, Daniel Fatiaki is totally correct after he stressed today that the new electoral system cannot come into place without constitutional change.

Rabuka says while previous electoral arrangements were contained in Electoral Acts, the provisions for the elections since the ‘purported’ promulgation of the 2013 Constitution are contained in the Constitution, particularly Chapter 3 thereof.

Meanwhile Fatiaki who is the former Chief Justice says they want to leave a legacy behind that will benefit the future generations.

The Chairperson says he is going to give the best electoral system through his report that the people deserve, however, it depends on the people on how they want to run with it.

Fatiaki says he can't guarantee that his report will see the light of day because the Constitution is a huge barrier to implementation.

He further says no matter what the government's will is they will still have to move ahead with the Constitution if it remains unchanged.

Fatiaki says it's between now and February 27th to get the constitutional changes put in place and adopt their electoral recommendations.

Cabinet has agreed to seek an opinion from the Supreme Court on the interpretation and application of the amendment provisions of the 2013 Constitution.

Cabinet has also approved the engagement of Bret Walker, Senior Counsel, for legal representation in the Supreme Court - Cabinet's Supreme Court Reference filed under section 91(5) of the 2013 Constitution.

The Cabinet says Walker is one of Australia's leading barristers, widely respected for his extensive legal experience and advocacy in constitutional, administrative and appellate law.

This comes as the Bill to amend the 2013 Constitution was defeated in Parliament.

The Bill sought to change the requirement for the 75 percent of the Members of Parliament needed to amend the Constitution and to also entirely remove the requirement of a referendum and support of 75 percent of the registered voters under Section 160.

It also sought to amend Section 159(c) relating to repealing, infringing or diminishing the effect of Chapter 11 of the Constitution which is about amendments to the Constitution.

All parties represented in Parliament including the People’s Alliance, the National Federation Party, SODELPA, Leader of Opposition Inia Seruitatu’s faction, and Minister for Policing Ioane Naivalarua’s faction, Unity Fiji Leader Savenaca Narube, Fiji Labour Party Leader Mahendra Chaudhry, the Human Rights and Anti Discrimination Commission and the Fiji Law Society have been invited by the Supreme Court to make submissions in the matter where the Cabinet has sought the opinion of the Supreme Court on the interpretation of the 2013 Constitution.

Supreme Court President and Chief Justice Salesi Temo also says it is always prudent to include the Human Rights Commission and the Law Society as this is their turf.

Solicitor General Ropate Green, who is representing the State, did not object to the inclusion of the interveners.

Pictured: Solicitor General Ropate Green

He also requested the inclusion of the Great Council of Chiefs as an intervener but Supreme Court Judge Justice Isikeli Mataitoga denied it, stating that the list for the interveners was decided after careful consideration.

He is asking the Court to provide a response to 5 questions.

The Solicitor General has been given time until the 29th of May to serve the papers to the 9 interveners.

They will be called in court with their Counsel on the 6th of June to inform the Court if they agree to intervene or not.

Green has requested the 18th to the 22nd of August for the hearing date as they are engaging a King's Counsel and those are the dates they will be available.

Chief Justice Temo says he will be given these dates two months from now but also highlighted that the questions the Cabinet is asking is more than the mere amendment to the 2013 Constitution.

He says the questions also involve a critical decision which led to the constitutional uprising of April 23rd 2009. Chief Justice Temo says the question regarding the 1997 Constitution makes it more complicated and more interesting and it described it as putting in ‘spanner in the works’.

While referring to the 1997 Constitution, Justice Mataitoga says this issue is still alive.

Green responded that those are the issues that can be resolved and laid to rest.

Meanwhile, Green also requested liberty and time to file the constitutional facts that any intervener would have to agree to and this is the context for asking these questions.

Chief Justice Temo confirms the bench will include 6 members who are Justice Temo, Justice Mataitoga, Justice Terence Arnold, Justice William Young, Justice Dame Lowell Goddard and he will be asking the Chief Justice of Australia to nominate a judge.

Cabinet, through the Office of the Solicitor-General, has requested the Supreme Court’s opinion specifically on the interpretation and application of the constitutional amendment provisions under Sections 159 and 160 of the Constitution.

Sections 159 and 160 require a three-quarters majority in Parliament and approval from 75 percent registered voters in a national referendum respectively.

Fiji Electoral Law Reform Commissioner Deidre Brookes, Court of Appeal Judge Justice Alipate Qetaki, Fiji Law Society President Wylie Clarke and lawyer Simone Valenitabua were also present in court this morning.

Pictured: Fiji Law Society President Wylie Clarke

Lau Provincial Council Chairman Ratu Meli Saubulinayau supports the representation of women in Parliament, saying that he feels that women should have one-third of the number of seats in Parliament.

While making his contribution during the consultation on the three Electoral Acts at the Fijian Teachers Association hall, Ratu Meli said if the number of members is 72, 71 or 55, one-third of the number should be women.

He also raised issues regarding the 2013 Constitution and said that it should be thrown out because it did not go through the right channel.

The former senior military officer also raised the need to bring back Party symbols and candidate pictures on the voter list as it was hard for many people to remember the candidate numbers in the previous elections.

He says prisoners should have the right to vote, but they cannot be a candidate or run for a seat in Parliament.

Ratu Meli says mentally ill patients who understand the voting system should be allowed to vote, but not those who cannot.

The Chairman also highlighted the need to bring back the Constituency voting system because the people know who they are voting for and what they are standing for.

Is the 1997 Constitution still valid and applicable.

That is one of the five questions asked by Prime Minister, Sitiveni Rabuka in the Reference filed in the constitutional case which is currently before the Supreme Court.

This question arises based on earlier discussions on the ‘abrogation’ of the 1997 Constitution by the late former President, Ratu Josefa Iloilo and the way the 2013 Constitution was brought in without a Parliament in place.

Other questions include on whether the provisions regarding the amendment to the 2013 Constitution and the transitional period section of the Constitution are binding on the people of Fiji, the Parliament of Fiji and the Supreme Court with the effect that none of those provisions can ever be amended, regardless of the will of Parliament or of the people voting in a referendum.

Chapter 11 of the 2013 Constitution states that no amendment to the Constitution may ever repeal any provision on the immunity from prosecution for those involved in the 1987 and 2006 coups, and Chapter 12 deals with the transitional period.

Chapter 11 also requires 75 percent of the Members of Parliament and 75 percent of all registered voters in a national referendum to vote for changes in any other section of the Constitution.

Rabuka also asks whether the provisions can be amended following enactment of a Bill in Parliament to do so, in terms thought fit by Parliament.

The Prime Minister further asks the Supreme Court if the approval of any amendment proposed is effective only if approved by the people of Fiji at a referendum.

He also asks if there is any special majority, and if so in what proportion, necessary for an enactment or approval by referendum.

The parties in the case include the Office of the Attorney General, the People’s Alliance Party, National Federation Party, SODELPA, Opposition faction of Inia Seruiratu, Faction of Ioane Naivalurua, Fiji Labour Party, Unity Fiji, Fiji Human Rights and Anti-Discrimination Commission the Fiji Law Society.

The case will be called before the Supreme Court on June 6th.

The reform of the electoral system can be done under the current Constitution before the next general elections.

This has been shared by Jon Fraenkel who is a Professor of Comparative Politics at Victoria University of Wellington.

The discussion at Fiji National University Campus in Nasinu, mainly centred around electoral reform within and beyond the 2013 Constitution while also drawing on Fiji’s experiences under the 1970, 1990, and 1997 Constitutions.

Professor Fraenkel talked about the confusing nature of the current Sudoku style ballot paper.

He says it features only numbers, without candidate names or party symbols.

Professor Fraenkel also criticized the use of a single nationwide constituency that elects 55 members of Parliament, arguing that this system fails to provide geographic representation, as the MPs are not tied to specific regions within Fiji.

Professor Fraenkel also highlighted the lack of women representation in Parliament as well.

When questioned by fijivillage News about which body should be responsible for creating electoral boundaries given that no such responsibility is legislated under the current law, Professor Fraenkel noted the relevance of census data and explained that under the 1997 Constitution, a Constituency Boundaries Commission existed, and suggested that similar mechanisms could be considered under the current framework.

He also confirmed that the creation of constituencies is possible under the 2013 Constitution, indicating that a meaningful electoral reform can still be pursued within the existing legal structure.

Chiefs of the Vanua of Ra took to the streets of Rakiraki Town this morning, calling for the dissolution of the 2013 Constitution.

Videos on social media show more than 10 people taking part in the march.

They are heard saying that they are conducting a peaceful protest against the 2013 Constitution which has guided us for a few years now.

They say they want a Constitution that protects the iTaukei.

They also say this Constitution has been a hindrance to the development of iTaukei people.

The protesters also say they want to thank the Police for giving them the permit to conduct this peaceful march.

They have thanked the Vanua of Rakiraki and its elders for coming out to be part of this peaceful march.

The protesters also say the 2013 Constitution was put together by only two people – Aiyaz Sayed-Khaiyum and Voreqe Bainimarama and it does not have the people’s voice.

Police confirm the protesters had a permit.

Opposition MP, Ketan Lal says chiefs from the Vanua of Ra marching through town today, calling for the abrogation of the 2013 Constitution, is not just a protest — it is a dangerous signal to the rule of law and to the peace we have worked so hard to build.

Lal says it is shocking that such a march, calling for the removal of our Constitution was allowed to proceed with permits from both the Fiji Police Force and the Fiji Roads Authority.

The Opposition MP stresses the 2013 Constitution is the supreme law of the land.

Lal says it has been the foundation of stability, equal citizenry, and the democratic processes that elected all of them, including this government.

He says calls for its abrogation are not just undemocratic — they border on sedition.

The Opposition MP says these calls risk reopening wounds of our past — wounds that many of us are still healing from.

Lal asks would this same approval be given if the message was against the government of the day.

He says we must remember Fiji has come a long way and our Constitution, though not perfect as claimed by a handful, guarantees equal citizenry, independent institutions, and a platform for peaceful progress.

He says our country has seen too much division in the past — division based on race, religion, province, and power.

Lal stresses those dark chapters in our history must never be repeated.

He says what Fiji needs today is harmony, not hostility, we need dialogue, not demands, and we need unity, not upheaval.

Lal says to the chiefs and individuals behind this march: You are entitled to your views, but no one is above the Constitution.

He says to the government and Prime Minister: Your silence on this matter is unacceptable. You must rise above political calculations and stand firm in defence of our Constitution that you also took an oath to protect and our national harmony.

We have sought comments from Prime Minister, Sitiveni Rabuka.

Liuliu Ni Vanua o Rakiraki, Tu Navitilevu, Ratu Emori Bolobolo says their peaceful march in Rakiraki Town this morning was to call for the removal of the 2013 Constitution.

Around 20 people, including the chiefs of the Vanua of Ra, took part in the march.

He says the decision to go ahead with the march was from their Bose Vanua of Rakiraki.

Ratu Emori says there was a unanimous decision from the leaders of the mataqali, yavusa and village heads in the Province of Ra that they make their stand on the 2013 Constitution.

He says they thank the Government and the Police for the permit to conduct the peaceful march.

He stresses this constitution should be removed.

Police also confirm that the protesters had a permit to march.