Kings Counsel Brent Walker says immunity provisions in the 2013 Constitution are not directly under challenge in the matter where Cabinet is seeking the Supreme Court’s opinion on the interpretation and application of the amendment provisions of the 2013 Constitution, but if the court rules Section 159(2)(c) invalid, Parliament could amend the immunity provisions if it chooses, since they would no longer be shielded from change.
Section 159(2)(c) of the 2013 Constitution states that no amendment may repeal, infringe or diminish the effect" of Chapter 11 of the Constitution which outlines the procedures for amending the Constitution.
Walker says he is focusing on Section 159(2)(c) which prevents amendment provisions from being looked at.
He says the State seeks the court’s opinion that those provisions are inoperative and ineffective.
The King’s Counsel says that if Section 159(2)(c) is rendered inoperative, then, depending on political judgement and parliamentary will, it could allow consideration of all other aspects of Chapter 11 that remain intact.
He further says the 2013 Constitution imposed an impossible referendum clause, but referendum law itself was never part of Fiji’s constitutional amendment process or requirement.
The counsel says referendum provision in the Constitution is remarkable, unrealistic and cynical.
He says it does not refer to all voters who voted, but to all registered voters—and registered voters notoriously do not all vote. He says if it’s anything more than 50 plus 1, then it is a proposal by which greater weight is given to those in a minority and that doesn’t sound democratic.
The King’s Counsel says it might be called safeguards, but it’s actually retrograde to democracy.
Walker also says the 2013 Constitution has efficacy and recognition, making it the operative supreme law.
Meanwhile, Chief Justice Salesi Temo says the Supreme Court will deliver its opinion on notice before the 5th of September.
The court had earlier set their timetable to hear the matter this week, deliberate next week and give their opinion on the 5th of September.
