Australia Lawyers Involved in Fiji Constitutional Case

Australian barrister Arthur Moses SC has represented the Fiji Law Society in a landmark case before the Supreme Court of Fiji, examining the interpretation and application of the country’s 2013 Constitution.

The case, referred by the Fiji Cabinet, focuses on whether the nation’s constitutional amendment provisions are valid and workable. Following Fiji’s 2006 coup, the 1997 Constitution was abrogated in 2009, leading to the adoption of the 2013 Constitution. Since then, Fiji has held three national elections and enacted more than 400 laws.

Central to the proceedings are Sections 159 and 160, which require a “double supermajority” for constitutional amendments: approval from three-quarters of parliament and three-quarters of registered voters in a referendum. The Supreme Court was asked to consider:

• Whether it has jurisdiction to give an advisory opinion.
  
• Which constitution, the 1997 or 2013, remains supreme?
  
• How the amendment provisions should be interpreted.
  
• Whether courts can review constitutional provisions.
  
• Whether the amendment rules are unconstitutional or inoperative.
  
• What remedies or declarations should be issued?
  

Eleven parties, including intervenors and amici curiae, made submissions during a three-day hearing in Suva, which concluded on 20 August 2025. Arguments included comparative constitutional law and international principles, with the State claiming that the referendum requirements make amendments effectively difficult to achieve.

Mr Moses SC argued that the 2013 Constitution satisfies the common law test of efficacy and must be recognised as Fiji’s supreme law. He maintained that courts do not have the authority to review original constitutional provisions or rewrite them. He also cautioned that removing the referendum requirement would undermine popular sovereignty by allowing amendments with only a simple parliamentary majority, reducing the Constitution to an ordinary statute.

Mr Moses was assisted by Professor Patrick Keyzer, an Australian legal scholar at the Australian Catholic University, and Dane Luo, a legal researcher at Oxford University. The team was instructed by William (Wylie) Clarke, President of the Fiji Law Society.

The Supreme Court’s decision is expected to have lasting implications for Fiji’s governance and the role of citizens in constitutional reform.