Amending vs. Scrapping the 2013 Fijian Constitution: A Legal and Political Dilemma

The Fijian 2013 Constitution remains a contentious document, with deep-seated divisions on whether it should be amended or completely discarded. The Coalition Government’s attempt to amend Chapter 11 of the Constitution has ignited renewed debate, with some People's Alliance (PA) supporters advocating for outright abrogation. Unity Fiji’s legal challenge further complicates the situation, while the ever-present specter of a military coup looms in the background. Additionally, the argument that the people have legitimized the document by functioning under its framework since 2013 presents another crucial angle. The question remains: should the government pursue amendments or aim for a total replacement?

The Coalition Government’s Attempt to Amend Chapter 11

The Fijian Coalition Government has proposed amending Chapter 11 of the 2013 Constitution, which outlines the procedures for constitutional amendments. Under the current framework, changes require an arduous process: a three-quarters majority in Parliament at each of three readings of the amendment Bill and a national referendum where three-quarters of registered voters must approve the amendment. The government aims to ease these stringent requirements to facilitate broader constitutional reforms. However, this approach acknowledges the legitimacy of the current Constitution and seeks to modify it from within, rather than discarding it entirely.

Calls for Abrogation and the Paths Forward

Despite the government’s approach, some PA supporters have called for the complete scrapping of the Constitution. There are a few ways this could be achieved:

1. A Legal or Legislative Process – The government could pass a resolution to declare the 2013 Constitution void and initiate a new constitutional drafting process. However, this would likely face legal challenges from defenders of the current Constitution, including former government figures and civil society groups. Furthermore, the current government cannot simply “scrap” the very document that legitimizes their very existence in our corridors of power. To do so would be akin to chopping off one’s own foot. So, unless they are ready to sacrifice their Parliamentary membership and call for a state of emergency and the formation of an interim government, expecting them to toss the document out of government house is akin to waiting for sunshine from the depths of Vatukoula Gold mine – never gonna happen.

2. Judicial Challenge – Unity Fiji has signaled its intent to challenge the legality of the 2013 Constitution, arguing that it was imposed undemocratically. A court ruling invalidating the document could pave the way for a new constitutional framework, though this remains a long and uncertain legal battle.

3. Military Abrogation – Historically, Fiji has seen military coups as a means of constitutional change. While a coup could forcibly remove the 2013 Constitution, it would undermine democratic principles and international standing. Given Fiji’s history of coups, such an option cannot be ignored, but it would have severe political and economic consequences.

Legal Challenges to the Amendment or Abrogation Process

If the government pursues amendments or abrogation, it is likely to face strong legal resistance. Proponents of the 2013 Constitution will argue that the document has provided stability and legitimacy, as it has governed the nation for over a decade. Any attempt to scrap it without following proper legal procedures could trigger lawsuits, constitutional crises, and even intervention by international bodies.

The Argument for Legitimization Through Usage

One of the strongest arguments against total abrogation is that the 2013 Constitution has been legitimized through continued use. Since its adoption, all laws, government institutions, and judicial decisions have operated under its framework. The public has participated in elections, and policies have been enacted in accordance with the Constitution. Critics may argue that while the Constitution’s origins were flawed, its longevity and functionality have granted it de facto legitimacy.

While the Coalition Government is taking a pragmatic approach by seeking amendments, some groups advocate for outright abrogation through legal challenges or more radical measures. However, the reality remains that the Constitution has governed the country for over a decade, making its complete removal without widespread consensus a risky endeavor. A balanced approach—one that includes broad consultations, legal scrutiny, and democratic processes—may provide the most viable path forward in shaping Fiji’s constitutional future.