Amending Fiji’s ‘Unamendable’ Constitution

Coel Kirkby and Thomas Martyn

Coel Kirkby is a Senior Lecturer at the University of Sydney Law School.
Thomas Martyn is a student at the University of Sydney Law School.

How do you amend an unamendable constitution? In February this year, the Fijian government tried and failed by one vote to secure the 75 per cent majority needed to pass the Constitutional Amendment Bill. Even if they had succeeded, it would have been unlikely that the second requirement–winning the support of 75 per cent of registered voters in a referendum–would have passed, given that in the 2018 and 2022 elections, turnout was significantly under 75 per cent. Even if the Fijian government had overcome these hurdles, section 159(2)(c) of the Constitution of 2013 expressly prohibits any change to the amendment process, which was the subject of the Bill.

The Fijian government attempted to enact the Constitutional Amendment Bill knowing it was ‘unconstitutional’. The apparent strategy was to provoke a constitutional challenge in the Supreme Court to then argue for striking out or reading down the ‘unamendable’ amendment procedure. Last week, the Fijian government decided to approach the Supreme Court directly through a constitutional reference asking for precisely this remedy.

The government’s faith rested in the obiter dicta of a Supreme Court opinion delivered last year where three judges answered a narrow question referred to the Court by Cabinet on whether two officials were lawfully appointed to their offices. Despite the very narrow issue, the judges indicated a willingness to entertain a broader challenge to specific provisions of the Constitution—including the unamendable amendment provision. Their opinion suggests one possible route for Fijians to change their Constitution and also illuminates the theoretical puzzle on the nature of ‘unconstitutional constitutional amendments’.

The Spirit of Constitutional Interpretation

On 28 June 2024, the Supreme Court delivered its advisory opinion on a direct appeal (‘reference’) by Cabinet under section 91(5) of the Constitution. The three judges began by reaffirming the contextual approach to constitutional interpretation established in Qarase v Chaudhry (2003). This approach has four elements to avoid narrow and literal textual readings (see [28] of the advisory opinion). First, interpretation starts with ‘the natural and ordinary meaning of the language at issue,’ which may by itself resolve the questions. Second, this ‘natural and ordinary meaning’ includes ‘the interpretive directions contained in the constitution, the purpose of the provision under consideration and the constitution’s broader context.’ Third, ‘context is always important in the interpretative process’ (emphasis in original) and not merely relevant to resolving linguistic ambiguities. Finally, ‘the Court must not take a narrow, literalistic approach to interpreting a constitution, ie, an approach which interprets the language in isolation rather than in light of its overall purpose and context and of the constitutionally mandated principles of interpretation.’ Context thus plays a central role in all constitutional interpretation and, as the Court later clarified, extends beyond the wider context of the Constitution to the broader political and social circumstances of its drafting and enactment.

With the Qarase principles in mind, the Court then turned to consider the constitutional principles relevant to the narrow question asked of the opinion. Section 3(1) of the Constitution provides that any person interpreting or applying the Constitution ‘must promote the spirit, purpose and objects of this Constitution as a whole, and the values that underlie a democratic society based on human dignity, equality and freedom.’ The Court highlighted that this section demands a consideration of ‘both the purpose and objects of the Constitution’ aimed at the substantive end of promoting a ‘functioning democracy’ (at [30]). Furthermore, sections 7(1) and 7(5) regarding the interpretation of the constitutional Bill of Rights likewise aimed to promote ‘the values that underlie a democratic society based on human dignity, equality and freedom’ through ‘a broad, contextual approach’ with regard to international law, and the content and consequences the law will have on groups or individuals (at [31]). In this context, the specific provisions in question must be interpreted as consistent with those substantive constitutional principles.

From this broad contextual approach, the Court went on to argue that the Constitution’s spirit was more fundamental than its text. Section 2 of the Constitution states that it is ‘the supreme law’ and that any inconsistent law is invalid to the extent of the inconsistency (at [32]). However, the Court noted that section 3(2) ‘qualifies’ this inconsistency provision by requiring the judiciary to ‘adopt a reasonable interpretation of [any impugned law] that is consistent with the provisions of this Constitution over an interpretation that is inconsistent with the Constitution’ (emphasis added). The Court appealed to the constitutional history of Fiji as the broader extra-textual context necessary for interpretation. It noted that Fiji has had four Constitutions since independence in 1970—all but the current one were abrogated after military intervention. The Court then noted (a point also made in an earlier preliminary decision) that the current Constitution was drafted and enacted by a small group of officials with ‘no extensive public consultation process’ over a very short period (at [33]). This undemocratic and hasty origin took place in a context where Fiji had an extensive body of statutory law such that it could not be ‘assumed that all instances of inconsistency were identified,’ let alone that constitutional provisions were deliberately implemented to ‘prevail over relevant existing statutory provisions’ (at [34]). Thus, the Court concluded that these contextual factors ‘weaken the notion of constitutional supremacy, or at least require the Court to consider how to mesh together inconsistent provisions so as to avoid problematic outcomes’ (at [34]).

In the final part of the opinion, the Court identified proportionality as another constitutional value (at [36]). Proportionality, the judges noted, aimed to find a balance between the measure and the objective of the legislation: do ‘the ends justify the means?’ (at [36]). First, the Court showed how the Constitution explicitly and implicitly created a principle ‘to ensure that restrictions on rights and freedoms are justified, rather than arbitrarily imposed’ (at [86]). Second, the Court looked at the broader context to find that the rule of law bound them to interpret the sections in question consistently with the constitutional principle of promoting a democratic society (at [83]). To rebut an argument that their contextual approach to constitutional interpretation imposed a subjective rather than objective test, the Court concluded their opinion by citing H.L.A. Hart on the indeterminacy of rules: ‘that is the nature of legal rules - they have a central core of application surrounded by a penumbra of uncertainty, ie, an area where their application is not certain’ (at [91]).

Amending the ‘Unamendable’ Constitution

The Supreme Court’s opinion seemed to invite a broader challenge to parts—or even all—of the Constitution. After the failed Constitutional Amendment Bill this year, the immediate question is whether Cabinet may seek an opinion from the Court on the ‘unamendable’ constitutional amendment procedure. The text of Chapter 11 clearly states that some parts of the Constitution may not be amended, including the amendment procedure itself. All other provisions may only be amended by the double-majority procedure that is practically impossible to satisfy. The question that follows is how to amend an ‘unamendable’ constitution.

The Court’s opinion suggests a line of argument that reverses the logic underlying the comparative constitutional jurisprudence on the ‘basic structure doctrine’ or ‘unwritten constitutional principles’. The Court could be asked whether the broader context of the Constitution may require a reading down or even striking out of the amendment procedure as inconsistent with the fundamental constitutional principle of democracy, including human dignity, equality and freedom. The Court may well find that the Constitution (or at least the amendment procedure)—imposed by a military regime and drafted by an exclusive few to deny the people any real possibility of changing their fundamental law—is itself unconstitutional.

Coel Kirkby is a Senior Lecturer at the University of Sydney Law School.

Thomas Martyn is a student at the University of Sydney Law School.

Suggested citation: Coel Kirkby and Thomas Martyn, ‘Amending Fiji’s “Unamendable” Constitution’ IACL-AIDC Blog (20 May 2025) Amending Fiji’s ‘Unamendable’ Constitution — IACL-IADC Blog