Constitutional Rewriting in Fiji: Does the Government's Constitution Bill Pass the Supreme Court's Tests?

Fiji’s proposed constitutional overhaul has raised serious questions about democratic accountability, public participation, and the concentration of political power. Following a 2025 Supreme Court ruling that opened the way for constitutional reform, a government-appointed commission conducted nationwide consultations and proposed a new constitutional framework. Yet the government’s subsequent amendment bill departs from the commission’s draft in significant ways, retaining and expanding protections for public officials while leaving key checks on executive power weakened. This article assesses the bill against the Supreme Court’s standards for constitutional reform, examining whether it addresses Fiji’s democratic deficits or risks entrenching them under a new constitutional order.

Fiji's 2013 Constitution was promulgated by decree by the government that came to power following the 2006 coup. Its amendment rules are so demanding that, in practice, it can hardly be changed.

On 13 March 2026, after Fiji’s Supreme Court opened the way to constitutional reform in its August 2025 judgment, the President established a seven-member Constitution Review Commission mandated to examine the democratic deficit the Court had identified in the 2013 Constitution. The committee was chaired by senior lawyer Sevuloni Valenitabua and included lawyers, academics, a policy specialist, a medical doctor and an architect. After conducting nationwide consultations, it delivered its report and a full draft constitution to the President on 31 August 2026. The Government stressed that receiving the report did not mean accepting its recommendations. Parliament tabled the report on 22 September, and on 30 September the Prime Minister introduced the Government's own Constitution (Amendment) Bill 2026, which departs from the Commission's draft on many key aspects.

This piece measures the Government's Bill against the two tests the Supreme Court established for a new constitution: how it is made, and whether it repairs the democratic deficits of the 2013 Constitution. We argue that the Bill fails the first test and only partly passes the second. While it repairs some deficits, it further entrenches executive power, shifts much of the rest to unelected bodies, and leaves the people unable to change their own constitution.

The Supreme Court's two tests

In August 2025, the Supreme Court confirmed the 2013 Constitution as Fiji's applicable constitutional framework but lowered the threshold for amending it. It reduced the parliamentary threshold from three-quarters to two-thirds of all members and replaced the requirement that three-quarters of all registered voters approve an amendment during a referendum with a simple majority. In its ruling, the Court also articulated two tests that any new constitution should meet.

The first concerns the constitution-making process. While the 2013 Constitution was imposed by decree 'after only cursory public engagement by a government that had come to power unlawfully', the Court grounded its reasoning in Fijians' right to 'meaningful participation' and to 'shape their own constitution as they see fit from time to time'. Constitutional change, it ruled, should rest on 'a sufficient consensus'. In practice, this means broad agreement across political parties and communities, reached through a process that gives people time to understand and debate the proposals, not simply the votes of a governing majority.

The second concerns the design of a constitution and whether it remedies democratic deficits. This entails whether a constitution can be changed 'by the people and/or their elected representatives', whether it gives effect to the democratic values it proclaims, and whether it protects the rights Fiji has undertaken to uphold. The Court also warned against changes 'driven by self-interest or by partisan or short-term motivations'.

While the Government maintains that the Constitution (Amendment) Bill it tabled in Parliament satisfies both tests and incorporates 'most' of the Constitution Review Commission's recommendations, a comparison of the two texts points to a different conclusion.

Test one: How is the Constitution being made?

Under the Supreme Court’s ruling, the Constitution Review Commission held public consultations nationwide for six months and delivered a draft constitution on 31 August 2026. It held meetings at 105 venues, heard 3,873 people and received 1,220 submissions. However, participation was uneven: 86 per cent of participants were iTaukei and 69 per cent were men, while Indo-Fijians, roughly a third of the population, made up only 7 per cent. The report also never says how many people supported any given proposal. Even so, this process represented a remarkable exercise in public engagement. What followed, however, undid much of that work.

A Cabinet subcommittee spent two weeks reviewing the Commission's draft, and on 30 September, the Prime Minister introduced a substantially different text which the Opposition reported it had not seen. Parliament voted 36 to 13 to suspend its standing orders so that the Bill could proceed. The Bill passed its second reading on 2 October by 38 votes to five, with nine abstentions, before the Prime Minister, the author of the Bill, submitted it to an 11-member parliamentary committee. The committee lost a week of its 30-day period to other business before it first met. Its schedule now allows for about 16 days of public consultation, starting in Suva, Nausori and Pacific Harbour. Written submissions are to close on 23 October.

The Fiji Human Rights and Anti-Discrimination Commission has asked for more time, noting that people must understand the two documents—the Constitution Review Commission's draft and the Government's revisions—before they can comment on either. The Prime Minister responded that the public had "all the time" to make submissions to the Commission during the public consultation process. However, the public was consulted only on the Commission's draft. The most contentious provisions of the Bill—on immunity, the selection of the President, the anti-corruption commission and the referendum itself—were introduced after that consultation closed. 

On 12 October, after the committee first met, the Prime Minister stated that more time could be made available to consider the Bill, and that Parliament could sit until 24 December. While this is a welcome development, the Prime Minister had already announced the referendum date for 9 December before hearing from the public. Whether that date will hold is now unclear: the Bill must pass its third reading before a referendum can be held, and if Parliament needs to sit into December to finish its work, 9 December may come too soon. In this referendum, the first in Fiji’s history, voters will be asked to vote yes or no on a 150-page draft Constitution, with only weeks to understand its content.

Moreover, the Supreme Court’s call for consensus on a new constitution is also absent: two of the three coalition partners have expressed doubts about the Bill. The National Federation Party (NFP) believes only the President can set a referendum date after the Bill passes, and that the vote should be held after the 2027 general elections. Its leader, Biman Prasad, has reminded that the coalition rejected the 2013 Constitution because "it was a rushed document". The Social Democratic Liberal Party (SODELPA) has also questioned the timing. Opposition Leader Inia Seruiratu warned that a constitution cannot be written for the people and presented as a finished product.

Even the basic question of which Constitution will govern the next Parliament remains unanswered. The election, due by 6 February 2027, will probably take place under the 2013 framework. Yet the Bill—which would carry the resulting Parliament into the new constitutional order—says nothing about when the new Senate would be appointed and allows the Cabinet to choose the start date on which the new Constitution comes into force (31 March 2028 by default, though it can be brought forward on Cabinet's advice).

This chain of events is familiar. In 2012 and 2013, an independent constitutional review commission consulted widely, but the Government set its draft aside and wrote its own. This seems to be happening again, albeit more gently. Fijians were consulted on one text and will vote on another. While a referendum can give the Bill legal force  it cannot give Fijians a constitution they feel is theirs. On the first test, the Bill therefore falls short.

Test two: Does the Bill repair Fiji’s democratic deficits?

The record on the second test is more mixed, and the Bill deserves credit for the deficits it does address.

Checking the military

Following the Constitution Review Commission's proposals, the Bill confines the military to defending Fiji from external threats under Cabinet control, ending its long-asserted role as guardian of the nation. After four military coups, that is a significant repair. In some respects, the Government’s Bill also improves the Commission's proposals: it removes an unaccountable 'committee of three' from the apex of the appointments system and restores procedures for removing judges. One important gap remains, however: the Bill leaves the composition and operation of the National Security Council, which would advise Cabinet on declaring emergencies, entirely to ordinary law.

Can the people change their Constitution?

Fiji’s constitutional amendment procedure was at the heart of the Court's ruling. On this aspect, however, the Bill goes backwards, proposing a two-thirds majority of each House of Parliament to change the Constitution, without a referendum. This directly contradicts the August 2025 Supreme Court judgment, which mandated a simple majority in a referendum as part of the amendment process. While the Constitution Review Commission's draft also proposed dropping the referendum requirement, it provided the Great Council of Chiefs— Bose Levu Vakaturaga, a body of iTaukei chiefs—only eight out of 19 Senate seats. The Bill, however, makes it worse by giving the Council 14 of the 23 seats. Because every constitutional amendment would require a two-thirds majority in the Senate, the latter would, in effect, be able to veto any amendment proposal. With 14 of the 23 seats, the Great Council of Chiefs’ senators could block any amendment—including to the Bill of Rights—unless at least eight of them supported it. The Court spoke of change by "the people and/or their elected representatives". The Bill hands the deciding vote to neither.

Is power checked? 

The 2013 Constitution concentrated power in the Prime Minister's office. The Constitution Review Commission tried to change this by proposing a limit of fourteen Ministers, a two-term limit for Prime Ministers, an independent process for appointing the Chief Justice, a Public Accounts Committee chaired by the Opposition, and an independent Parliamentary Emoluments Commission. None of these proposals survived in the Government’s Bill. The Prime Minister would still chair the body that recommends the Police Commissioner, the military commander and the heads of independent oversight bodies, such as the Auditor-General, the Ombudsman, and the human rights and electoral commissions. The Bill also abolishes the Fiji Independent Commission Against Corruption without replacing it and makes enforcement of the code of conduct for public office holders, including Ministers and members of Parliament, optional. Meanwhile, the Great Council of Chiefs would have the power to choose Fiji’s President and block any law "relating to iTaukei matters", a phrase the Bill never defines. Many iTaukei see the Council's return as long overdue and recognise indigenous institutions as legitimate. However, membership to the Council is left to ordinary law, and it answers to no one. Power is moved, not checked.

Are rights protected? 

In the Government’s Bill, the Bill of Rights is overall stronger. Largely thanks to the Constitution Review Commission’s proposals, the State would now have to justify any limitation on a right, and the old clauses from the 2013 framework that allowed media regulation and restricted trade unions are gone. However, line by line, protections slip for people with the least power. The Bill keeps the 2013 promise to protect children from violence and punishment but adds that "lawful and moderate chastisement is permissible for the purposes of correction". People under arrest must still be told of their right to remain silent, but the right itself has gone from the text. Protection from eviction now depends on what the State says it can afford, and the clear ban on discrimination by employers, landlords and businesses has disappeared. Customary authorities may require communal labour and limit people's freedom of movement to enforce their decisions, including excluding a person or family from a village, with no right of appeal. The Constitution Review Commission's proposed rule that party lists alternate between women and men was also dropped from the Bill.

Does it live up to its own values?

The Bill promises not to favour any religion. Yet, it removes the 2013 heading 'Secular State' and places 'Christianity and family values' first among its founding values. The 2013 commitment to 'common and equal citizenry' falls from first place to eighth, while descendants of Girmitiyas are described as 'minority groups'. The preamble identifies only 1987 and 2009 as years constitutions were 'abrogated'; it does not name 2000 or 2006, even as the Bill protects those involved in the coup.

Is it free from self-interest?

This was the Supreme Court's final warning, and it is the point at which the Bill is the weakest. Its Section 206 grants every holder of public office—from Ministers to soldiers and police officers—'absolute and unconditional immunity' for anything arising from their 'involvement in the Government' since the coup of 5 December 2006. That protection lasts until the first Parliament is elected after 'this Constitution' comes into force.

The sentence is copied from the 2013 Constitution. In that text, 'this Constitution' referred to the 2013 Constitution, and the protection expired in October 2014. Transposed into a new Constitution, however, the same words move the end date to the first Parliament elected under the new text—around 2031 on the Government's own timetable. The Bill's explanatory note says that immunity ends in 2014. The clause says otherwise, and it is the clause that courts will interpret.  The Commission's draft contained no such clause: it recommended repealing the immunities altogether. The Government argues that the Supreme Court requires the immunities to remain, pointing to its finding that the power to amend the 2013 Constitution did not extend to its immunity provisions, in the interests of stability and continuity. Even if that interpretation is technically correct, the Court called for their continuation, not their expansion. The Bill extends the immunities in time. They cover killing and assault, though not bribery, and bar court challenges and compensation. The Bill also abandons the proposed right to truth.

Together with the Bill’s abolition of the anti-corruption commission, the Cabinet's control over the new Constitution's start date, and the absence of term limits for Prime Ministers, this exposes a notable pattern: a cluster of changes that benefit those in office. While none of this proves motive, it means the Government owes voters an explanation, which the official summaries currently lack. The explanatory note to the Bill gets the immunity date wrong and never mentions that the referendum requirement for future amendments has gone. Whether intended or not, these discrepancies capture the Bill's central problem: it places a new constitution within the framework of the old.

The verdict, and what can still change

On the first test, the Bill fails: after public consultation, it was substantially rewritten, and Fijians have only a fortnight to respond to the revised text. On the second, it repairs some deficits but leaves others intact and creates new ones: a constitution that the people cannot readily change, power that remains insufficiently checked, and immunity that expands rather than recedes.

Underlying both tests lies a simpler question: which way does power flow? A democratic constitution moves power down, towards voters, local communities, Parliament and bodies that can hold the government to account. It makes democracy something Fijians do, not something done to them. The Government's Bill does the opposite. Power stays with the executive, above all the Prime Minister, and the power that does move goes up, not down: to an appointed Senate and a Council of Chiefs that would have the power to choose the President and veto change. The only power that moves down goes to customary authorities, and much of it represents power over individuals, not power for them.

There is still time to change course. The committee should accept the additional time the Prime Minister has offered and use it meaningfully: hold hearings beyond Viti Levu; publish plain-language guides in English, iTaukei, Hindi and Rotuman; and explain where—and why—the Bill departs from the Commission's draft. It should also amend the text: end immunity in October 2014, as the explanatory note already indicates; delete the chastisement clause; restore the protections the Bill quietly removes; retain an independent anti-corruption body; narrow the Council's veto; preserve a referendum for the Constitution's core provisions; and state clearly which rules will govern the next election. If meaningful consultation requires holding the referendum after the election, as the NFP proposes, then it should be postponed. The Court opened the door for Fijians to shape their Constitution 'from time to time'. As drafted, the Bill gives them a fortnight to comment, a single vote to approve it, and then closes that door. That is not the constitutional repair the Court had in mind.

About the Authors

Romitesh Kant is a Research Fellow 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.

Suggested Citation

Romitesh Kant and Mereoni Chung, ‘Constitutional Rewriting in Fiji: Does the Government's Constitution Bill Pass the Supreme Court's Tests?', ConstitutionNet, International IDEA, 19 October 2026, https://constitutionnet.org/news/voices/constitutional-rewriting-fiji

Further Reading

• Updates on constitutional developments in Fiji.
• Alexander Hudson, Thresholds for Approving Constitutional Change: Recent Events in Fiji and The Gambia (2026).
• Romitesh Kant and Mereoni Chung, Keeping the Frame, Opening the Door: The Supreme Court’s Take on Fiji’s 2013 Constitution (September 2025).
• Romitesh Kant and Mereoni Chung, Whose Vision for Fiji? Constitutional Reform at a Crossroads (December 2024).