The Art of Amending the Unamendable

This past week, Fiji’s Supreme Court staged what might best be described as constitutional theatre: five days of earnest arguments over how to amend a Constitution that was very carefully designed never to be amended.

The government’s lawyer, with the confidence of a man holding a sledgehammer in a china shop, declared that section 159(2)(c) is a “poison pill” and must be excised. His solution? Keep a parliamentary supermajority but drop the referendum requirement altogether. Translation: let’s just remove the part where the people get a direct say.

The Fiji Law Society wasn’t impressed. Senior Counsel Arthur Moses reminded the Court that rewriting constitutions is Parliament’s job, not the judiciary’s. To him, the whole exercise was, in his words, “nonsensical.” After all, the State hadn’t even said what they actually wanted to change—just that they’d like the rules made easier, please.

The National Federation Party’s Jon Apted delivered the punchline: there’s no law in Fiji prescribing how to hold the referendum the Constitution insists on. It’s a legal version of an inside joke—the Constitution demands a process that doesn’t exist. No wonder one judge looked like he’d stumbled into a farce: “So you’re telling me we need a referendum law that doesn’t exist, to hold a referendum that can’t succeed, to amend a Constitution that forbids us from amending it?”

Other submissions added to the carnival. The People’s Alliance argued the 2013 Constitution isn’t valid at all and the 1997 version still rules. The Labour Party warned that lowering the bar would doom democracy. The amicus curiae, roped in to help, called the whole thing a “conundrum,” which is lawyer-speak for “this makes no sense.”

And presiding over it all was the Chief Justice, asking questions that sounded suspiciously like retorts. His line of interrogation suggested what many already know: the 2013 Constitution’s amendment process isn’t so much a democratic safeguard as it is an escape room with no exit.

The irony is glaring. After more than a decade of elections, oaths, and solemn speeches made under this Constitution, Fiji has finally noticed the fine print: you cannot change it, at least not legally. It is a locked box, with the key welded inside.

On 5 September the Court will deliver its advisory opinion. But whether it blesses a two-thirds vote, insists on an impossible referendum, or simply shrugs, one thing is already clear: the entire exercise has been an elaborate confirmation of Moses SC’s blunt assessment—it is, indeed, nonsensical.

Because at the end of the day, asking how to amend the unamendable is like arguing how to change the rules of Monopoly after someone has already flipped the board.