As the public debate over the 2013 Constitution gains momentum, Rokoika & Vakalalabure Lawyers offers the following legal perspective on the role of the courts and the question of constitutional legitimacy in Fiji.
We write in response to a recent public commentary, authored by a well-respected scientist, asserting that Fiji’s courts lack the power to review or set aside the 2013 Constitution. While such a view may be sincerely held, it is not supported by law, precedent, or constitutional principle.
Can the Courts Review the Constitution?
Yes, they can — and in some cases, they must.
The argument that Fiji’s courts are powerless to question the 2013 Constitution because they were created by it is both circular and legally flawed.
In constitutional law, courts have always retained the power to review the validity of the instruments that establish them, primarily when serious questions about legality, process, and legitimacy exist.
What Do the Precedents Say?
In Chandrika Prasad (2001) and Qarase v Bainimarama (2009), the Court of Appeal of Fiji held that:
- The 1997 Constitution could not be abrogated by decree.
- The rule of law demands adherence to constitutional procedures.
Under stare decisis, these rulings remain binding on all lower courts, including the High Court. They have never been overturned, and their authority still stands.
What About the Argument of Effectiveness?
Some argue that because the 2013 Constitution has:
- Been in place for over a decade,
- Enabled elections, and
- Supported functioning state institutions
…it must now be treated as legally legitimate.
This view is based on the “doctrine of effectiveness”, which suggests that once a regime achieves complete control and stability, its legal instruments must be recognised.
However, Commonwealth courts, including in Pakistan (Asma Jilani), South Africa (Harris), and Fiji itself (Qarase), have consistently ruled that:
- Effectiveness alone does not create legality.
- Legitimacy depends on how power is gained, not simply how long it is held.
- History Offers a Lesson: The Cromwell Precedent
In the 1600s, Oliver Cromwell abolished England’s monarchy and ruled under his constitution. Despite his power and duration in office, his regime was later declared illegitimate, and the monarchy was restored.
This illustrates a core principle:
Governments may govern by force, but that does not make them lawful.
Entrenchment Does Not Equal Immunity
Article 160 and other entrenched provisions of the 2013 Constitution were designed to resist casual amendment, not to place the entire Constitution beyond review.
As courts in Grenada, South Africa, and Pakistan have held, even entrenched constitutions may be reviewed if their origin breaches constitutional continuity.
The Role of the Courts Must Be Understood
The courts are not political tools. They are the guardians of legality.
If the foundation of the 2013 Constitution is challenged in court, then:
It is the role and responsibility of the judiciary to decide whether it rests on legal authority or merely political force.
Conclusion: Why This Matters
To suggest that the courts have no jurisdiction to question the 2013 Constitution is to misunderstand the law and minimise the judiciary’s constitutional role.
Fiji’s courts have the power and, in the proper case, the duty to determine whether the Constitution is legally valid.
Our Constitution is not merely a set of words. It is a promise of legality.
If that promise is broken, the courts must have the courage to say so.
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