FIJI’S constitution must reflect the will of the people, Australian barrister Bret Walker told the Supreme Court of Fiji in a landmark constitutional reference case.
Appearing as lead counsel for the State in the case brought by Cabinet, Walker outlined two core features of Fiji’s constitutional framework before the judges.
He said parliamentary democracy and the rule of law both must work in tandem to uphold the legitimacy of self-government.
“There are at least two fundamental features of the Fijian polity reflected in its Constitution,” he said.
“First, democracy through parliamentary government… and second, the rule of law, given effect by judicial enforcement.”
He emphasised that democracy, by definition, requires the ability of the people, through periodic elections and their elected representatives, to amend their own Constitution.
Denying that power, he said, would contradict not only democratic principles but also the dignity of the voters.
“It is a contradiction of democracy understood in that ordinary way to deny the voters the capacity to alter any existing provisions by the means constitutionally provided.”
Walker further submitted that Parliament, as the lawmaking body representing the people, has already demonstrated its role by trying to pass a Bill which had the support of 40 out of 55 Members of Parliament.
Walker has argued before the Supreme Court of Fiji that the 2013 Constitution’s so-called “double entrenchment” provisions may be incompatible with core democratic principles, describing them as unduly restrictive and lacking democratic legitimacy.
He was referring the provisions in the Constitution that warranted a two-third majority MP’s support changes to the Constitution, followed by a referendum.
“When I say prohibited, the Constitution says, and you can’t alter that prohibition,” he said.
He described this as a double entrenchment, a constitutional mechanism designed to make certain clauses unchangeable, or nearly so.
“These are obstacles designed in such a way that cannot live with the democratic nature of such a constitution,” he said.
“The experience in Fiji has always been two-thirds. Why three-quarters on this occasion?”
Walker also compared the 2013 Constitution’s final form with the more participatory process led by the Yash Ghai Constitutional Commission, which was ultimately sidelined by the Bainimarama government.