Lessons for NZ from the Fijian Supreme Court

IDEA reports on a recent decision from the Supreme Court of Fiji with regards to the 2013 constitution of Fiji.

They had to decide whether the 2013 or 1997 constitution of Fiji was valid, and as importantly whether the amendment provisions in the 2013 constitution were also valid.

The 2013 constitution was not democratically adopted. The Commodore promulgated it. However the Supreme Court found, despite this, it was valid:

The Court held that the 2013 Constitution was legally effective and so the Court did have jurisdiction. It did so by looking to the common law of Fiji, a source of law transplanted from Britain through colonisation and subsequently developed by Fijian courts to meet the circumstances of Fiji.

The common law rule of recognition allows a court to give legal recognition to a constitution that has become integrated into the life of the country and broadly accepted by the people, even though it was made unlawfully after a coup. Drawing on the criteria developed in the 2001 case of Fiji v Prasad, the Court held that the 2013 Constitution had provided the framework for government for 12 years, during which time three elections were held, over 400 laws passed by parliament and many public officials (including the judges themselves) had been appointed.

On this basis, the Court held that the 2013 Constitution was legally effective and provided the Supreme Court with jurisdiction to answer the questions referred to it by the Cabinet. This decision also confirmed that the 1997 Constitution no longer applies.

So that by itself is interesting. A constitution that was imposed by fiat, can become legitimate over time. But of more interest is the amendment provisions:

The Court held that the prohibition on making any changes to the amendment provision and the three-quarter majorities required in parliament and at referendum meant that there was no “workable” pathway to change the 2013 Constitution. It noted that these majorities were “unusually high” in comparison to past practice in Fiji and the constitutions of other democratic countries.

The constitution said that any amendment had to receive not just three quarters of those voting at a referendum, but three quarters of those eligible to vote. So if only 80% of Fijians voted, you would need 94% voting in favour to amend the constitution. The Supreme Court said that this meant there was no effective way to change the constitution, and hence was invalid.

A constitution must be amendable.

The court changed the requirement to only a two thirds majority in Parliament and a majority in a referendum of those who actually vote.

The importance to New Zealand is with regards to those who insist the Treaty of Waitangi is a constitutional document or supreme law, which can over-ride Parliament. If people want the Treaty to be supreme law or constitutional, then there has to be a workable way to amend the Treaty. In the absence of an ability to amend, it can not be a constitutional document.

My view is that the Treaty of Waitangi should be seen as asking to the US Declaration of Independence, rather than say the US Constitution. It is aspirational, not constitutional.

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