Section 64(3) provides: “If the seat held by a member of Parliament becomes vacant more than 3 years and 6 months after the first meeting of Parliament following the most recent general election, then the seat so vacated shall remain vacant until the next general election.”
*The first meeting of the Parliament elected in December 2022 took place on 24 December 2022. The period of three years and six months therefore expired on 24 June 2026. Because Agni Deo Singh’s death occurred after that date, his seat cannot be awarded to Parmod Chand or to any other unsuccessful NFP candidate.
Fijileaks extends its deepest and most sincere condolences to his family, relatives, friends, colleagues in the National Federation Party, members of the Fiji Teachers Union, and the thousands of working people whose interests he represented over many decades.
Whatever political differences may divide a country, death calls for dignity and restraint. Agni Deo Singh’s family must be allowed to mourn a husband, father, relative and loved one. His former colleagues will remember a man with whom they worked and struggled; teachers will remember a union leader; and Parliament will record the loss of one of its elected members.
May he rest in peace.
His death, however, also raises a constitutional issue which cannot be avoided: what becomes of his parliamentary seat, and who, if anyone, is entitled to fill it?
Under the existing 2013 Constitution of Fiji, no one will replace him because the vacancy has arisen after the expiry of the constitutional three-year-and-six-month period.
But the unusual result should not obscure a more fundamental democratic question that Fijileaks has raised consistently over many years: Why should any candidate rejected at a general election be permitted to enter Parliament later without facing the voters again?
Our position remains unchanged. A person who was not elected should not acquire a parliamentary seat through an administrative recount of a four-year-old party list. A casual vacancy should be filled through a by-election, giving the people, not a political party, an electoral formula or an unelected commission, the final word.
The law as it presently stands
Fiji’s present electoral system is based upon a single national constituency and a multi-member open list form of proportional representation.
Every voter casts one vote for a candidate. Those candidate votes are then combined to calculate the total number of votes received by each political party. The party’s aggregate vote determines the number of parliamentary seats allocated to it, while the votes received by individual candidates determine which of the party’s candidates occupy those seats.
The same system is used to fill most casual vacancies.
Section 64(1) of the 2013 Constitution provides that, if the seat of a member belonging to a political party becomes vacant, the Electoral Commission must award that seat to the highest-ranked unsuccessful candidate from the same political party at the most recent general election, provided that the candidate remains available and qualified to serve.
The relevant provision states that the seat must be awarded to “the candidate of the same party who, in the most recent general election, is the highest ranked out of those candidates of that party who did not get elected to Parliament and who is still available to serve at the time of the vacancy.”
In the 2022 general election, the five successful NFP candidates were Biman Prasad, Lenora Qereqeretabua, Agni Deo Singh, Pio Tikoduadua, and Sashi Kiran. The next-highest unsuccessful NFP candidate was Parmod Chand, who obtained 1,857 votes.
Had Agni Deo Singh’s seat become vacant before the constitutional cut-off, Parmod Chand would ordinarily have been the first candidate considered by the Electoral Commission. If he remained available and qualified, the Constitution would have permitted him to enter Parliament despite the fact that he had not secured sufficient votes to be elected in December 2022.
That is precisely the feature of the present law that Fijileaks has long opposed.
The constitutional clock has expired
In the present case, however, section 64(1) is displaced by the late-term vacancy provision in section 64(3).
Section 64(3) provides: “If the seat held by a member of Parliament becomes vacant more than 3 years and 6 months after the first meeting of Parliament following the most recent general election, then the seat so vacated shall remain vacant until the next general election.”
The first meeting of the Parliament elected in December 2022 took place on 24 December 2022.
The period of three years and six months therefore expired on 24 June 2026. Because Agni Deo Singh’s death occurred after that date, his seat cannot be awarded to Parmod Chand or to any other unsuccessful NFP candidate.
The language of section 64(3) is mandatory. The seat “shall remain vacant”. Neither the Electoral Commission, the Supervisor of Elections, the Speaker, the Prime Minister nor the NFP has any legal discretion to produce a replacement.
The consequences are straightforward:
- Parmod Chand cannot enter Parliament;
- no other unsuccessful NFP candidate can be selected;
- the NFP cannot nominate a replacement of its own choosing;
- the Electoral Commission cannot revive the 2022 candidate list;
- no by-election is permitted under the existing late-vacancy provision; and
- the seat must remain vacant until the next general election.
The NFP’s representation in Parliament consequently falls from five sitting members to four.
The accident of timing
The present case exposes the arbitrary consequences of section 64.
If Agni Deo Singh’s seat had become vacant shortly before 24 June 2026, the next-highest unsuccessful NFP candidate could have entered Parliament without a new public vote.
Because the vacancy occurred after 24 June, no one can enter and the seat must remain empty.
The democratic entitlement of the people should not turn upon such an accident of timing.
In the first situation, the voters would have been given no opportunity to decide whether they still wanted the next unsuccessful candidate to represent them. In the second situation, they are denied any representation in the vacant seat until the general election.
Neither outcome provides the electorate with a fresh and direct choice.
The first elevates an unsuccessful candidate into Parliament. The second deliberately leaves Parliament one elected representative short. A properly designed by-election system would instead return the decision to the voters.
A defeated candidate remains a defeated candidateThe phrase “next-highest candidate” can disguise the political reality.
The person concerned is not the “next elected member”. He or she is an unsuccessful candidate, someone who contested the general election but did not receive enough votes to enter Parliament when the public verdict was delivered.
The fact that a candidate finished sixth, seventh or twenty-sixth within a party does not transform electoral defeat into a continuing entitlement to public office.
A general election records the people’s decision at a particular moment. But circumstances can change substantially during a parliamentary term. A political party may change its policies, leadership, alliances or public standing. The unsuccessful candidate may have changed political positions or become involved in matters of which voters were unaware at the general election.
Yet section 64 allows that person to enter Parliament years later without submitting to any fresh public scrutiny.
This is representation by mathematical succession rather than renewed democratic consent.
The seat may have been allocated to a political party through proportional representation, but Parliament is composed of human representatives who exercise public power, vote on legislation, approve public expenditure, support or remove governments, and speak in the name of the people.
A person exercising those powers should possess a current democratic mandate.
The people, not the party, should choose the replacement. Under the existing model, once a party seat becomes vacant during the first three years and six months, the electorate is effectively removed from the process.
The party cannot technically appoint anyone it wishes, because the ranking is determined by the previous election results. Nevertheless, the replacement remains confined to the party’s old list. The public is not asked whether it still supports the party or the replacement candidate.
This approach gives excessive constitutional weight to the party’s historical allocation of seats and insufficient weight to the voter’s right to choose the person who will exercise legislative power.
A parliamentary seat should not be treated as political property held indefinitely by a party.
The electorate may have voted heavily for the deceased or departing member personally. The replacement candidate may have received only a fraction of those votes. To transfer the seat automatically is to assume that every vote cast for the original member can be treated as support for every other candidate standing under the same party banner.
That assumption may be mathematically convenient, but it is democratically questionable.
The answer is a by-election
Fijileaks has long maintained that a casual parliamentary vacancy should be filled through a by-election.
A by-election would permit all qualified political parties and candidates to contest the vacant seat. The party previously holding it could nominate a candidate, but it would have to persuade the electorate again. Other parties could challenge for the seat, and independent candidates could offer themselves to the voters.
Most importantly, the successful replacement would enter Parliament with a direct and current mandate.
It may be argued that a by-election could alter the proportional distribution determined at the preceding general election. That is true. But it is not necessarily an objection. Public opinion is not frozen on general-election day, and democratic government does not require voters to be imprisoned for an entire parliamentary term by their earlier choice.
It may also be argued that a nationwide by-election would be expensive because Fiji presently operates as a single national constituency. Democracy has a cost, but cost alone cannot justify placing a rejected candidate in Parliament without a vote.
If the present electoral structure makes a proper by-election unduly difficult or expensive, that is an argument for reviewing the electoral structure, not for depriving voters of a fresh choice.
The Electoral Act alone cannot cure the problem
There is an important legal distinction. Although the replacement machinery is administered under Fiji’s electoral laws, the defeated-candidate succession rule is not found only in the Electoral Act. Its legal foundation is section 64 of the Constitution itself.
Parliament therefore cannot abolish the practice merely by passing an ordinary amendment to the Electoral Act.
Any attempt to provide that every vacancy must be filled by a by-election, while leaving section 64(1) unchanged, would create a direct inconsistency between the Electoral Act and the Constitution. Under section 2, the Constitution is the supreme law, and an inconsistent statutory provision would be invalid to the extent of the inconsistency.
Meaningful reform requires two stages:
- amendment of section 64 of the Constitution to remove the automatic succession of unsuccessful party candidates and provide for a by-election; and
- consequential amendment of the Electoral Act to establish the nomination, campaign, polling, counting and declaration procedures for such by-elections.
Following the Supreme Court’s August 2025 advisory opinion on constitutional amendment, constitutional change is now understood to require a two-thirds parliamentary majority followed by approval by a simple majority of those voting in a referendum.
The issue should therefore be placed squarely before the present constitutional review process and ultimately before the people.
A proposed replacement for section 64
The principle could be expressed simply, “If the seat of a member of Parliament becomes vacant, the Electoral Commission must conduct a by-election to fill the vacancy, and the person elected at that by-election shall serve for the remainder of the parliamentary term.”
Further provisions could prescribe a reasonable period within which the writ must be issued, regulate nominations and determine how the by-election operates within any future constituency system.
If Fiji retains a single national constituency, the legislation must establish whether the by-election is held nationally or under some specially designed mechanism. If Fiji eventually adopts geographical constituencies, the by-election could be conducted within the constituency formerly represented by the departing member.
Those are matters of legislative design. The democratic principle should come first: no unsuccessful candidate should enter Parliament unless the voters elect that person at a by-election.
Parliament continues despite the vacancy
The fact that Agni Deo Singh’s seat must remain vacant does not invalidate parliamentary proceedings or dissolve the Government.
Section 65 expressly provides that Parliament may act despite a vacancy in its membership. Bills, debates, votes and committee proceedings do not become invalid simply because one elected seat is unoccupied.
The vacancy nevertheless has political consequences. The NFP loses one of its five representatives, and the governing coalition loses one of the members who formed its original parliamentary majority.
That does not automatically remove the Government from office. Section 90 requires the Government to maintain the confidence of Parliament, and section 94 provides the constitutional procedure for a motion of no confidence.
But in a closely divided legislature, the loss of one government member makes attendance, discipline and every parliamentary vote more important.
The ministerial position is separate
Agni Deo Singh’s parliamentary seat and his Cabinet portfolio must not be confused.
His parliamentary seat must remain vacant under section 64(3). His position as Minister for Employment, Productivity and Workplace Relations may be filled.
Section 92(3)(a) gives the Prime Minister the power to appoint ministers and determine their titles, portfolios and responsibilities. Section 95(1), subject to the special constitutional exception for the Attorney-General, requires a minister to be a Member of Parliament.
Prime Minister Sitiveni Rabuka may therefore allocate the Employment portfolio to another existing MP. He may appoint a new minister from among the present members, transfer the portfolio to an existing minister, or retain responsibility for it until a permanent appointment is made.
Parmod Chand cannot be appointed to the ministry unless he is first a Member of Parliament. Since section 64(3) prevents him from entering Parliament through the 2022 results, he is not presently available for an ordinary ministerial appointment.
Whether the Employment portfolio remains with an NFP minister is a matter of coalition politics. The legal power of appointment remains with the Prime Minister.
Respect for Agni Deo Singh, and reform for the future
The death of Agni Deo Singh should not be exploited for partisan advantage. His family deserves sympathy, privacy and respect.
But respect for the deceased does not require silence about the constitutional consequences of the vacancy. Indeed, Parliament would best honour public service by ensuring that the rules governing democratic representation are fair, coherent and answerable to the people.
Under the law as it stands, Agni Deo Singh’s seat must remain vacant because his death occurred after the three-year-and-six-month deadline. Parmod Chand, although the next-highest unsuccessful NFP candidate in 2022, cannot replace him.
That is the immediate legal position.
The larger constitutional question remains: why should an unsuccessful candidate ever be permitted to enter Parliament merely because an elected member dies, resigns or loses the seat?
Fijileaks’ answer has remained consistent: a defeated candidate should not enter Parliament through the back door. Every casual vacancy should be returned to the electorate through a by-election.
Changing the Electoral Act alone will not be enough. Section 64 of the Constitution must first be amended, followed by the necessary changes to the electoral legislation.
The people elect Parliament. When a seat becomes vacant, the people, not a party list inherited from an earlier election, should elect the replacement.
We again convey our heartfelt condolences to Agni Deo Singh’s family and loved ones, and to all those in the trade union, education and political communities who mourn his passing.
May his soul rest in peace.
Despite our differences on many issues over several years, Agni Deo Singh and I remained on good speaking terms. That stands in marked contrast to another individual, whom I will not identify, who recently told me that because I had described him as “Biman’s chamcha or masi polo", he wanted nothing more to do with me.
Agni and I could disagree, sometimes sharply, without allowing those differences to destroy our personal cordiality.
Candid criticism demands an adult response, not the childish sulking of someone who mistakes disagreement for personal betrayal. God Bless, AGNI.