Keeping the Frame, Opening the Door: The Supreme Court’s Take on Fiji’s 2013 Constitution

In August 2025, Fiji’s Supreme Court delivered a landmark opinion on the validity and amendability of the country’s 2013 Constitution. In this article, Romitesh Kant and Mereoni Chung trace how the Court balanced legal continuity with democratic self-determination, narrowing the effect of Fiji’s rigid amendment rules while affirming the Constitution’s overall legal authority. They explore how the ruling reshapes the landscape of constitutional reform and political contestation in Fiji, and what it means for the future of democratic change through lawful processes.

Introduction and context

In August 2025, Fiji’s Supreme Court issued a landmark opinion on the status and amendability of the country’s 2013 Constitution. The Supreme Court’s involvement stemmed from two long-running controversies in Fiji’s constitutional history.

First, the 2013 Constitution—promulgated by decree following the 2006 coup—has faced persistent legitimacy concerns. It replaced the 1997 Constitution, which was abrogated in April 2009 after the Fiji Court of Appeal ruled the coup unlawful. Critics also pointed to the limited public consultation in crafting the 2013 text, especially compared to the more participatory process led by the 2012 Constitutional Commission.

Second, the 2013 Constitution introduced unusually rigid amendment rules. Section 160 requires not only a three-quarters parliamentary majority to pass an amendment, but also the approval of at least three quarters of all registered voters in a referendum. In addition, section 159 prevents amendment provisions themselves from being amended. Critics have long argued that these thresholds make meaningful constitutional reform almost impossible.

These tensions reached a tipping point in early 2025, when Parliament narrowly failed to pass the Constitution (Amendment) Bill 2025 which sought to lower the threshold for constitutional change.

These tensions reached a tipping point in early 2025, when Parliament narrowly failed to pass the Constitution (Amendment) Bill 2025 which sought to lower the threshold for constitutional change. Specifically, the Bill proposed reducing the parliamentary requirement from a three-quarters to a two-thirds majority and replacing the referendum requirement of three quarters of all registered voters with a majority of valid votes cast. When the vote was taken, the government fell just one vote short of the supermajority required under the current text. This defeat starkly illustrated how the very mechanisms designed to safeguard the Constitution could also obstruct democratic change. It also triggered renewed debate over whether the 2013 Constitution’s amendment rules entrenched a form of “legal deadlock” inconsistent with democratic self-determination. Against this backdrop, using the referral procedure under section 91(5) of the Constitution, Fiji’s Cabinet referred the matter to the Supreme Court, asking it to clarify the legal status of the 2013 Constitution and whether its most stringent amendment provisions should be read in ways that leave room for future reform.

This article will examine the Supreme Court’s opinion, tracing how the judges balanced legal continuity with democratic self-determination, and considering the broader implications for constitutional reform and political debate in Fiji.

Is the 2013 Constitution applicable?

In its request, Fiji’s Cabinet asked the Supreme Court five questions: whether the provisions of Chapter 11 and Part D of Chapter 12 are binding, whether a parliamentary Bill can amend them, whether any such amendment must also be approved by referendum, what special parliamentary or referendum special majorities (if any) would be required, and whether the 1997 Constitution remains valid and applicable today. These questions required the Court to address two politically charged, yet legally framed issues: should the 2013 Constitution be recognized as the legally effective Constitution of Fiji, given that the 1997 was unlawfully abrogated, and if so, must the Court accept its strict amendment rules—sections 159 and 160—as permanently binding? 

The Cabinet’s request was met with extensive written and oral submissions from the State, nine interveners, and an amicus curiae, producing a multiplicity of legal, comparative and international law arguments for the judges to consider. The People’s Alliance and SODELPA both urged revival of the 1997 Constitution, while the National Federation Party accepted that the 1997 text had been superseded. In contrast, the State argued that the Constitution as a whole was amendable and challenged claims that the impugned provisions rendered amendment impossible. The oral hearings were held in Suva before a full bench.

To answer the Cabinet’s questions, the Court first had to determine whether the 2013 Constitution should be considered the legally effective Constitution of Fiji, as its jurisdiction to provide an opinion depended on this determination. To do so, the Court applied the so-called “rule of recognition” used in Fiji’s jurisprudence and other common law jurisdictions, asking whether, over time, the 2013 Constitution had demonstrated efficacy and attracted sufficient popular acceptance and support to be treated as the legally effective text. The Court stressed that its evaluation was practical and prospective, looking at the sustained use and institutional reliance of the 2013 Constitution rather than relying solely on the circumstances of its promulgation.

If the 1997 Constitution was to remain legally effective, that would have called into question the validity of twelve years of public life organised under the 2013 text.

The Court noted that public life in Fiji had been conducted for many years under the 2013 text, that national elections had been held under it, that numerous public officials—including judges—had been appointed under it and had sworn to uphold it, and that courts had repeatedly applied or referred to its provisions. In this sense, the question asked to the Supreme Court was not just technical. If the 1997 Constitution was to remain legally effective, that would have called into question the validity of twelve years of public life organised under the 2013 text. The Court therefore concluded the 2013 Constitution must be recognised as the lawful and effective constitution of Fiji.

An unconditional recognition: the Court’s democratic concern and remedial interpretation

Next, the Court had to consider whether the 2013 Constitution amendment rules were to be deemed permanently binding. Crucially, the Court rejected an “all-or-nothing” approach that would have required it either to accept the entire 2013 text unquestioningly or to reject it outright. It stressed that recognising a Constitution as legally effective did not preclude the Court from scrutinising particular provisions against fundamental constitutional principles and international human rights obligations. The Court, therefore, faced a crucial question: should it uphold amendment rules that effectively blocked future democratic change and, in doing so, undermined the Fijian people’s right to shape their own Constitution?

The Court grounded its reasoning in the right to self-determination and the democratic values the Constitution itself claims to uphold. It concluded that while constitutions can legitimately make some provisions harder to amend than ordinary laws, any provision that renders amendment impossible or freezes the polity permanently is inconsistent with those principles. Consequently, the Court adopted a remedial approach to interpretation: it recognised the 2013 Constitution as the legally effective Constitution, but narrowly interpreted the most draconian elements of its amendment provisions to ensure that the Fijian people and their elected representatives retain a genuine and practical means of effecting constitutional change.

Conclusions of the Supreme Court and political implications

In conclusion, the Court made two key binding declarations: it recognised the 2013 Constitution as Fiji’s legally effective Constitution. However, it limited that recognition in Chapter 11 to ensure the Constitution could still be amended democratically. Sections 159 and 160 were interpreted narrowly—reducing supermajority requirements for parliamentary approval and referendums—so the Constitution cannot be made permanently unchangeable. The Court confirmed that amendments require a two-thirds parliamentary majority and a majority in a public referendum, and it ruled that the 1997 Constitution is no longer valid, cementing the 2013 Constitution as Fiji’s governing legal framework.

This ruling has three immediate political implications. First, it affirms continuity: the 2013 Constitution will remain the organising legal framework for public life in Fiji, avoiding the legal uncertainty that a sudden return to the 1997 text might have caused. Second, by refusing to endorse immutable entrenchment, the Court preserved constitutional politics as a space for democratic contestation, allowing reformers to pursue change through legal and political channels—such as parliamentary processes, referenda conducted in good faith, and public constitutional assemblies—rather than by extra-legal means. Third, the ruling reflects a judicial balancing act: the Court acknowledges the practical realities of power while insisting that fundamental democratic values cannot be permanently frozen by political actors.

Recognising a constitution with contested origins exposes the judiciary to accusations of sanitising a text born of an undemocratic process.

The Court’s approach is not without risk. Recognising a constitution with contested origins exposes the judiciary to accusations of sanitising a text born of an undemocratic process. At the same time, by reading down amendment barriers, the Court opens itself to criticism of judicial overreach into what are plainly political choices. These tensions are intrinsic to the role of courts in transitional polities, where judges must weigh the need for legal stability against the imperative of democratic self-determination.

Intersections with ongoing reform debates

Early reactions to the Supreme Court's opinion have been mixed among experts and civil society. While some view the ruling as a positive step that makes the nation's Constitution more democratic and returns power to the people, others worry that the Court may have overstepped its authority, potentially paving the way for a constitutional crisis or granting the government excessive power. Still others caution that the 2013 text continues to undermine indigenous peoples' rights.

These debates unfold at a political moment already marked by calls for constitutional restatement and reform. As mentioned, the 2013 Constitution, promulgated in the aftermath of the 2006 military coup, has long been criticised for limited public consultation, concentration of executive power, and provisions that deter participatory constitution‑making. Contemporary reform proposals—discussed by policymakers and civil society—seek to broaden citizen participation, reintroduce local government elections, and establish truth and reconciliation mechanisms, among other changes.

The Court’s decision effectively lowers the legal barriers to such reforms by rejecting the idea of permanent entrenchment, while leaving the actual mechanics of change to political actors and future legal processes. Participatory tools rooted in core democratic values—such as substantive civic education, inclusive consultations, and institutional mechanisms like the National People’s Assembly—were flagged in recent reform discussions and remain politically relevant in light of the Court’s stance.

Conclusion

The Supreme Court’s decision is significant because it shapes the scope of political contestation. The Court has preserved the institutional framework while effectively signalling to political actors that any attempt to make constitutional change impossible will not stand judicial scrutiny. This places the onus on political actors to engage in coalition‑building, public consultation, and careful institutional design to achieve meaningful reform. The current appetite for constitutional reform is ripe across many sectors, a momentum further reinforced by Prime Minister Rabuka’s recent statement that his government is prepared to advance the process, with a draft Amendment Bill ready to be tabled in Parliament.

The Court’s decision sends a clear message: the future of Fiji’s Constitution will be determined through political and civic engagement, not by legal sleight‑of‑hand.

Fiji’s Supreme Court kept the door open to change: constitutional reform remains necessary and achievable, but only through political processes, broad public mobilisation, sustained public persuasion and legitimate democratic channels—not by extra‑legal force. By refusing to accept sections 159 and 160 as binding, the Court removed a major legal obstacle while insisting that any successful reform must be rooted in public legitimacy and durable institutional design, rather than elite manoeuvring behind closed doors. The responsibility now rests with politicians, reformers and civil society, who must translate political aims into inclusive civic education, structured consultations and deliberative mechanisms to build the consensus needed for lasting change. The Court’s decision sends a clear message: the future of Fiji’s Constitution will be determined through political and civic engagement, not by legal sleight‑of‑hand.

Romitesh Kant is a PhD candidate at the Australian National University, focusing on the intersections of masculinity, politics, and governance in Fiji. With nearly two decades of experience in civil society, academia, and research, he has worked extensively on issues of democracy, human rights, digital media, and public participation.

Mereoni Chung is a Fijian feminist with a focus on gender, environment, and development. She has over a decade of experience working with Fiji CSOs, supporting consultations, analysis, and advocacy on human rights, democracy, and Pacific development priorities.

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Suggested citation: Romitesh Kant and Mereoni Chung, ‘Keeping the Frame, Opening the Door: The Supreme Court’s Take on Fiji’s 2013 Constitution’, ConstitutionNet, International IDEA, 17 September 2025, https://constitutionnet.org/news/voices/keeping-frame-opening-door-supreme-courts-take-fijis-2013-constitution

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