You are a court, not constitution makers – Amicus Curiae

You are a court, not constitution makers, and you can’t determine the best constitution for the people of Fiji.

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, Amicus Curiae Dr. Andrew Butler highlighted that there are conundrums the court faces about its role — whether it is to respond or to resolve such issues.

He says one conundrum is that the entrenched constitutional amendment provisions make the 2013 Constitution more difficult to amend compared to overseas constitutions.

Dr. Butler says the difficulty of amendments itself is not the concern.

He says the real issue is that the 2013 Constitution was not adopted as a result of a deliberate decision of the people, either through their representatives or by referendum.

He says that the question remains whether the 1997 Constitution is still in play or if it has been successfully superseded by the 2013 Constitution.

Dr. Butler says it is hard to allow imposed constitutional processes to effectively “handcuff” the people of Fiji.

He further says the State has suggested that the Court should declare Chapter 11 inoperable, but there are both micro and macro issues related to this.

At the macro level, Butler says, it would result in the Constitution ceasing to be the Supreme Law in any conventional constitutional sense.

He says at the micro level, he highlights that without Chapter 11 there would be no explicit power to amend the Constitution, meaning no prescribed amendment process.

The State suggested that the failed Constitution Amendment Bill provides a solution.

The State Counsel said the government would give close consideration to presenting the Bill to the President for assent without a referendum.

Dr Butler says the Bill is dead and was defeated in its second reading.

Justice Isikeli Mataitoga highlighted the concept of Talanoa, in the Pacific saying he believes people should be included in discussions relating to the Constitution.

He emphasised that decisions affecting citizens must involve them at every level.

Dr Butler says the Court doesn’t have to answer all the questions on the reference, they are not required to.

The hearing continues today.