The constitutional debate currently gripping our nation has produced a familiar refrain from certain quarters: that the 2013 Constitution can only be changed according to its own internal rules, and that any attempt to do otherwise is legally illegitimate. This argument; however elegant in its formalism, rests on a fundamental error. It confuses the mechanism of constitutional change with the source of constitutional authority. In a democracy, that source is not a document—it is the sovereign people.
The 2013 Constitution’s Original Sin
Let us begin with an inconvenient truth that procedural purists prefer to ignore: the 2013 Constitution was never ratified by the Fijian people. It was imposed by decree under a military regime, without parliamentary approval and without any referendum. As one submission to the courts put it, the 2013 Constitution “was imposed and did not embody the will and sovereignty of the people of Fiji.”
This is not a fringe view. Former Chief Justice Daniel Fatiaki, who now chairs the Electoral Law Reform Commission, has been remarkably candid about the document’s democratic deficits. He has described the electoral system embedded in the 2013 Constitution as “ridiculous and almost unintelligible”—an imported system that “needed to be completely overhauled and replaced.” He has questioned how a nation of almost one million citizens could be “straitjacketed into a single all-embracing constituency,” and where is the “fairness and voter equality” in a system that allows MPs “with a few hundred votes to enter Parliament ahead of other more representative candidates who received thousands of votes?”
Fatiaki has also been scathing about the broader constitutional order. He has called it a “tragedy” that Fiji was ruled by decrees, noting that “in any democratic government, the laws are made by Parliament for the people,” while “a decree reflects nothing but the authoritarian dictatorship that instituted it.” The 2013 Constitution, in his view, remains a “major constraint” on genuine reform.
If the document’s own legitimacy is compromised from its inception, on what moral or legal ground can its authors now claim that it must be treated as sacred and unalterable except through its own flawed mechanisms?
The Primacy of Popular Sovereignty
The counter-argument to procedural formalism is simple and powerful: constitutions are instruments of the people’s will, not eternal contracts that bind future generations against their consent. The constituent power—the nation itself—is superior to any constituted power, whether that be Parliament or a constitution.
This is not radical doctrine; it is foundational to democratic theory. When the people of Fiji speak through a referendum, they are exercising their sovereign right to give themselves a new governing framework. The Supreme Court’s August 2025 ruling, which lowered the amendment threshold to a simple majority of votes cast, implicitly recognised this principle. The Court did not entrench the 2013 Constitution; it dismantled barriers to popular expression.
The “Amendment vs. Replacement” Distinction is Formalism
Critics argue that the government must clarify whether it is proposing “amendments” or an entirely “new” Constitution, as if the distinction carries decisive legal weight. It does not. A comprehensive amendment is, in substance, a replacement. What matters is not the label but the process: parliamentary approval followed by a referendum where the people have the final say.
If the people approve a new constitutional order through a free and fair referendum, no court can overturn that decision without placing itself above the sovereign will of the nation. The Supreme Court itself has previously recognised the 1997 Constitution as no longer valid because it was effectively replaced—a precedent that confirms replacement through political and popular fact is entirely possible.
The Referendum is the Ultimate Check
Fatiaki has highlighted the absurdity of the old 75% threshold, noting that on a roll of 100,000 voters, a referendum could theoretically fail even if 88% of those who actually turned out voted in favour. The Supreme Court’s intervention to lower this barrier was a recognition that the people’s voice must not be silenced by procedural obstacles.
Some ask: if a referendum and election are held on the same day, which constitution governs? This is an administrative question, not a fatal legal flaw. Parliament can legislate for the new Constitution to take effect upon certification of the referendum result. The election can be conducted under the existing framework, with the new order coming into force simultaneously. Sequencing is a matter of legislative drafting, not constitutional impossibility.
Conclusion
Those who argue that the 2013 Constitution must be treated as a straitjacket—that the people cannot replace what was never given to them—have forgotten the first principle of democratic governance. Authority flows from the people, not from paper.
Former Chief Justice Fatiaki has spent his career defending the rule of law. But he has also been unflinching in identifying where Fiji’s constitutional order has fallen short of democratic standards. His critique of the 2013 Constitution as imposed, unintelligible, and a constraint on genuine reform lends weight to the argument that the people of Fiji must now have their say—not as a procedural afterthought, but as the sovereign authors of their own constitutional destiny.
The process is clear: Parliament will deliberate, and the people will decide. That is not a departure from legality. It is the very essence of it.
Pasifika Talanoa by a traveled ITaukei Fijian 