Supreme Court to give its opinion on 2013 Constitution on 5th September

The Supreme Court will provide it's opinion on the 5th of September where the government has sought the opinion of the Supreme Court on questions relating to the interpretation or application of the 2013 Constitution.

The matter will be heard from the 18th to the 22nd of August.

Deputy Solicitor General Eliesa Tuiloma informed the court that during their search, they have found documents in their possession that have to be disclosed and are not in the public domain and these include the submissions and a table of contents in relation to the consultation for the formation of the 2013 Constitution and the Yash Ghai draft constitution.

He says they also found an academic article by Justice Isikeli Mataitoga, who is on the bench in this matter, on the making of constitutions in Fiji but they have no concerns regarding as it was of an academic nature.

Counsel for the Minister for Policing Ioane Naivalarua’s bloc in Parliament, Tangaroa Vakalalabure also asked for the Revocation Decrees of 2009 through which the then President abrogated the 1997 Constitution.

Chair of the Supreme Court Chief Justice Salesi Temo told Vakalalabure to confer with Tuiloma for the additional documents.

National Federation Party lawyer Jon Apted urged the court to direct the Office of the Solicitor General to provide their submission first and the other interveners to respond to it however Tuiloma initially objected, stating that all opinions should be encouraged from different angles. Vakalalabure and Fiji Law Society lawyer Seforan Fatiaki also concurred with Apted while no other parties had any objection.

Tuiloma suggested 28 days to be given to file their submission but Chief Justice Temo told Tuiloma that he must be in dreamland.

Chief Justice Temo stressed that time of the essence and highlighted that taxpayers money is being used as judges from overseas are also engaged.

Tuiloma has been given until next Friday to file the additional documents and summary of his arguments.

After that, all interveners including the State have been given time until the 18th of July to file and serve their submissions on the 5 questions in the reference.

The judges will read all the papers and submission by the State and interveners from the 11th to the 15th of August and the hearing will be held from the 18th to the 22nd of August.

Chief Justice Temo says each party will be given 40 minutes to argue their case orally while the Solicitor General will have an hour.

The judges will confer to write their opinion from the 25th of August to the 4th of September.

The case has been adjourned to the 18th of July at 2.30pm and will be called again on the 8th of August also at 2.30pm to check if everyone has filed their papers.

The panel of judges include Chief Justice Temo, Justice Arnold Young, Justice William Young, Justice Dame Lowell Goddard, while at the request of Justice Temo, the Australian Chief Justice has assigned former Australian Chief Justice and former Fijian Supreme Court judge Robert French.

The questions asked by Prime Minister, Sitiveni Rabuka in the Reference filed in the constitutional case before the Supreme Court include whether the 1997 Constitution is still valid and applicable.

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.