MICKEY MOUSE Constitutionalism. Why Supreme Court Cannot Rewrite Section 160. If the 2013 Constitution is supreme law, as s.2 declares, then Court’s role is limited to interpreting its Provisions, NOT Rewriting them

*If the Court starts inventing new thresholds, Fiji risks falling into a “Mickey Mouse Constitutionalism” TRAP. 

​Any suggestion that the Court could dilute or alter the explicit 75% thresholds in Section 160 (parliamentary votes) and referendum requirements amounts to judicial overreach, bordering on constitutional vandalism.

 Constitution 
Rewritten in Robes

​​Fijileaks will issue a comprehensive response after carefully reviewing the Supreme Court’s 61-page ruling. We will also provide detailed reactions to statements made by political parties, party leaders, lawyers (including overnight bush lawyers) and the Great Council of Chiefs (GCC) in response to the judgment.

For now, we emphasise that any attempt to reinterpret or dilute the Constitution’s explicit 75% thresholds for parliamentary approval and a referendum risks dragging Fiji into “Mickey Mouse constitutionalism”.
Our full legal and editorial analyses, including responses to political leaders, parties, and the GCC, will follow shortly.

• If the 2013 Constitution is indeed the supreme law of Fiji, as Section 2 emphatically declares, then the Supreme Court’s role is limited to interpreting its provisions, not rewriting them. Any suggestion that the Court could dilute or alter the explicit 75% thresholds in Section 160 (parliamentary votes) and referendum requirements amounts to judicial overreach, bordering on constitutional vandalism.

This isn’t merely a technical argument. It goes to the very rule of law and the separation of powers, the two pillars of any functioning constitutional democracy.

The Clear Text of Section 160(2)
​
Section 160(2) of the 2013 Constitution states:

“A Bill to alter this Constitution must be supported in Parliament by at least three-quarters of the members of Parliament and in a referendum, by at least three-quarters of the registered voters.” The language is:

• Express—no ambiguity exists.
• Exhaustive—no alternative formula is provided.
• Mandatory—it uses “must,” not “may” or “should.”

​In constitutional law, when a provision is this clear, courts are bound by what is written. They cannot judicially amend it.

Supreme Court’s Role: Interpretation, Not Amendment

The Supreme Court is the guardian of the Constitution, not its architect. Its task is to interpret meaning where there is ambiguity, silence, or conflict between provisions. Here, there is none.

If the Court were to “reinterpret” 75% to mean two-thirds or even a simple majority, it would be:

• Legislating from the bench, which belongs to Parliament, not judges.
• Undermining constitutional supremacy—a dangerous precedent.
• Opening the door to political manipulation would result in constitutional stability evaporating.

The Only Legal Ways to Change Section 160
There are only two lawful mechanisms to alter the 75% threshold:

A. Follow Section 160’s Own Process

• Secure 75% of MPs’ votes and
• 75% of all registered voters in a referendum.

​
This is deliberately rigid to preserve constitutional stability and avoid casual amendments.

B. Challenge the Constitution’s Validity
If one argues that the 2013 Constitution itself is invalid, for example, unlawfully imposed after the 2006 coup, that’s a different pathway. But until and unless the Court strikes it down entirely, the Court cannot cherry-pick which provisions to water down.

The “Mickey Mouse” Danger
If the Court starts inventing new thresholds, Fiji risks falling into a “Mickey Mouse constitutionalism” trap:

• A system where rules mean whatever the political winds demand.
• Where judicial authority is used to deliver political expediency, not uphold constitutional fidelity.
• Where the supposed “supreme law” is neither supreme nor law.

This would erode public trust and make Fiji’s constitutional order look like a cartoon democracy — attractive on the surface but hollow inside.

Precedent and International Comparison
​
Globally, supreme courts do not rewrite explicit amendment clauses. For example:

• India’s Supreme Court upheld the “basic structure doctrine,” striking down unconstitutional amendments but never relaxing thresholds.
• Kenya’s Supreme Court in 2022 invalidated attempts to amend the constitution outside its rigid procedures.
• South Africa’s Constitutional Court has repeatedly warned against judicial rewriting of “supermajority” clauses.

​If Fiji’s Supreme Court took a different path, it has become an outlier in comparative constitutional law.

The Political Subtext
​
If there are whispers about lowering thresholds to restore the 1997 Constitution or undo certain provisions in the 2013 Constitution, these must go through Parliament and a referendum. Anything else is a backdoor coup disguised as judicial interpretation.

The 2013 Constitution ties everyone’s hands: Parliament, Cabinet, Voters, and yes, even the Supreme Court. If judges start replacing 75% with 66% or 51%, Fiji descends into Mickey Mouse constitutionalism where law is rewritten on the fly. That undermines democracy, separation of powers, and the rule of law itself.

Constitutional change cannot come by judicial fiat. It must come through the people.

When the Fiji Supreme Court handed down its “advisory opinion” in response to the Cabinet’s reference under Section 91(5) of the 2013 Constitution, Fijians expected legal clarity.

Instead, they got a judicial earthquake. The judges went far beyond their mandate,  re-engineering Fiji’s constitutional framework without a single vote cast in Parliament or a single referendum held.

What should have been a straightforward interpretation of the law turned into an act of judicial law-making. The Court crossed the line from referee to player, altering constitutional thresholds and dismantling entrenched protections designed to safeguard Fiji’s democratic order.

The Limited Question Cabinet Asked

In June 2025, Cabinet sought a narrow advisory opinion under Section 91(5), which allowed the Supreme Court to:

“…give its opinion on any matter concerning the interpretation and application of the Constitution.”

The reference asked five straightforward questions

1. Was the 2013 Constitution legally effective?
2. Was the 1997 Constitution still valid?
3. Were the amendment thresholds in Sections 159 and 160 binding?
4. Could Parliament bypass those thresholds?
5. What role did common law play in recognising Fiji’s constitutional order?

This was not an invitation to rewrite the Constitution. It was a request for interpretation.

What the Court Did Instead

The Court recognised the 2013 Constitution—but only on its own rewritten terms.

Conditional Recognition

• It accepted the 2013 Constitution as effective but based that on common law recognition dating back to 1874.
• It explicitly rejected the validity of the 1997 Constitution (“Opinion: No”).

Lowered Amendment Threshold

• It “read down” Sections 160(2) and 160(6):
  • Three-quarters of Parliament to two-thirds.
  • Three-quarters of all registered voters to a simple majority at referendum.

Disregarded Entrenched Protections

• It discarded Section 159(2)(c), which had made the amendment provisions unamendable.

Claimed to “Empower the People”

• It argued the three-quarter thresholds created a “democratic deficit”, making the Constitution “virtually unamendable” and disempowering Fijians.

But here’s the paradox: If the Court wanted to empower the people, why didn’t it send the matter back to them through a referendum?

Instead, it imposed its own solution from the bench.

What the Court Should Have Declared

If the Supreme Court had respected its constitutional limits, its ruling would have been short, precise, and lawful.

On Validity of the 2013 Constitution

“The Court recognises the 2013 Constitution as the legally effective Constitution of the Republic of Fiji, by reason of continuity and reliance by Parliament, institutions, and the people.”

On the 1997 Constitution

“The 1997 Constitution, though lawfully enacted, ceased to operate after its displacement in 2009 and replacement in 2013. Its reinstatement would require a democratic process.”

On Amendment Thresholds

“Sections 159 and 160 set out binding amendment procedures, including three-quarter thresholds for Parliament and referenda. These remain operative unless and until amended in accordance with those same provisions.”

On Judicial Limits

“The Court has no authority to alter or ‘read down’ entrenched constitutional provisions. Any change lies exclusively with Parliament and the people via referendum.”

That is what an advisory opinion should have looked like. Interpretation, not invention.

Why the Actual Ruling Was Dangerous

The Court’s ruling wasn’t just an academic exercise. It has real and immediate consequences:

Concentration of Power

By lowering amendment thresholds, the Court handed extraordinary power to whichever government controls two-thirds of Parliament. A ruling coalition can now reshape the Constitution without needing a true national consensus.

Entrenched Clauses No Longer Safe

By discarding Section 159(2)(c), the Court set a precedent: if “unamendable” provisions can be read down, then nothing in the Constitution is truly protected, including the Immunity provisions in the 2013 Constitution of Fiji. To be continued, especially on Supreme Court's double standard: "We won't touch Immunity provisions"

---

CHAPTER 10—IMMUNITY
Immunity granted under the 1990 Constitution continues
155. Notwithstanding the abrogation of the Constitution Amendment Act 1997 and despite the repeal of the Constitution of the Sovereign Democratic Republic of Fiji (Promulgation) Decree 1990, Chapter XIV of the Constitution of 1990 continues in force in accordance with its tenor, and the immunity granted in Chapter XIV of the Constitution of 1990 shall continue.

Immunity granted under the Limitation of Liability for Prescribed Political Events Decree 2010 continues.

156.—(1) The immunities granted to prescribed persons for prescribed political events under the Limitation of Liability for Prescribed Political Events Decree 2010 shall continue in existence.

(2) Notwithstanding anything contained in this Constitution, the Limitation of Liability for Prescribed Political Events Decree 2010 shall, in its entirety, continue in existence and shall not be reviewed, amended, altered, repealed or revoked by Parliament.
​
Further immunity
157. Absolute and unconditional immunity is irrevocably granted to any person (whether in their official or
personal or individual capacity) holding the office of, or holding the office in, as the case may be--
(a) the President;
(b) Prime Minister and Cabinet Ministers;
(c) Republic of Fiji Military Forces;
(d) Fiji Police Force;
(e) Fiji Corrections Service;
(f) Judiciary;
(g) public service; and
(h) any public office,

from any criminal prosecution and from any civil or other liability in any court, tribunal or commission, in any proceeding including any legal, military, disciplinary or professional proceedings and from any order or judgment of any court, tribunal or commission, as a result of any direct or indirect participation, appointment or involvement in the Government from 5 December 2006 to the date of the first sitting of the first Parliament elected after the commencement of this Constitution; provided however any such immunity shall not apply to any act or omission that constitutes an offence under sections 133 to 146, 148 to 236, 288 to 351, 356 to 361, 364 to 374, and 377 to 386 of the Crimes Decree 2009 (as prescribed in the Crimes Decree 2009 at the date of the commencement of this Constitution).

Immunity entrenched
158.—(1) Notwithstanding anything contained in this Constitution, this Chapter and any immunity granted or continued in this Chapter shall not be reviewed, amended, altered, repealed or revoked.
(2) Notwithstanding anything contained in this Constitution, no court or tribunal shall have the jurisdiction to accept, hear or make any decision or order with respect to any challenge against the provisions of this Chapter and any immunity granted or continued in this Chapter.
(3) No compensation shall be payable by the State to any person in respect of damage, injury or loss to his or her property or person caused by or consequent upon any conduct from which immunity has been granted under this section.

Further Fijileaks analysis soon: 
Congratulations Fiji: You Can Change Anything You Want, Except Justice
​Chapter 10’s blanket immunity provisions remain untouchable.
*Yes, you read that right. Fijians can amend everything, except the clauses that protect those accused of torture, extrajudicial killings, racial persecution, and politically motivated beatings across 1987, 2000, and 2006.

Fijileaks: We will soon reveal the identity of one of the alleged killers. After searching for him for over ten years, the principal suspect has been located. For years our trail had gone cold, after we were repeatedly told, 'Kai he has gone mad, and is wandering around in his village'.
In fact, he is not mad but a spokesman for a prominent High Chief.
*The late Fiji Sun publisher Russell Hunter and I had been working on a book-length manuscript tentatively titled '2 November 2000: Mutiny, Mayhem, and Murder at the RFMF in Fiji', based on years of interviews with high-ranking military officers (current, past, and deceased), including interviews with mutineers. We also relied heavily on highly confidential Police and Military intelligence files provided to us by our exceptional sources. 

​Snake in the Basket: Is Rabuka’s Constitutional Coup Already Pre-planned?

The snake has finally slithered out of the basket.

For months, the coalition government led by Sitiveni Rabuka has been drip-feeding the public a carefully choreographed narrative about “constitutional review,” “dialogue,” and “national consensus.”

​Yet, as this weekend’s headlines reveal, a Bill is already “ready”, fully drafted and apparently poised to land in Parliament ahead of schedule.

This raises profound questions: Was this process ever genuinely consultative? Or have the coalition partners, FijiFirst defectors, the People’s Alliance Party, NFP, and SODELPA factions, been quietly preparing a constitutional ambush while selling the public a staged performance of inclusivity and transparency?

The “Surprise” That Isn’t

The front-page fanfare suggests that Rabuka’s government wants Parliament to believe this Bill simply “matured early,” like tropical fruit ripening ahead of the season. But constitutional amendments are not mangoes that fall from trees (NFP party tree sysmbol). They require:

• Drafting by legal experts
• Inter-ministerial vetting
• Cabinet sign-off
• Internal coalition consensus
• Public consultation, especially if democracy is to mean anything

So how is it that a fully baked Bill is sitting on the Prime Minister’s desk before most citizens have even been properly consulted?

​This is not governance. This is sleight of hand.

The Numbers Game

The 2013 Constitution which Rabuka and his allies now publicly deride contains an ironclad two-thirds threshold for amendments, coupled with a nationwide referendum if Parliament touches certain entrenched provisions.

Yet, according to insiders close to the process, the coalition is betting on two scenarios:

1. Neutralising opposition MPs through backroom deals or inducements to secure the two-thirds majority; and
2. Exploiting parliamentary procedure to fast-track the Bill before dissenting forces, civil society, the media, and the broader electorate, can mobilise.

The narrative of a “dead” 1997 Constitution and a “valid” 2013 Constitution, plastered across this weekend’s papers, is part of a psychological softening campaign. The goal is to convince Fijians that the government’s “mandate” to rewrite constitutional arrangements is unquestionable.

But who gave that mandate?

Rabuka’s Snake Dance

For years, Sitiveni Rabuka has cultivated a political mystique: the charmer, the reconciler, the elder statesman. Yet those who have followed his career since the 1987 coups know another Rabuka—the tactician who thrives on deception and misdirection.

Branding Rabuka a “snake” isn’t hyperbole. It’s history. He slithered through the corridors of power in 1987 under the guise of “Fijian supremacy,” only to reinvent himself in 1997 as a champion of multiracialism. Today, he presents himself as the healer who will “fix” the very constitutional architecture that Frank Bainimarama and Aiyaz  Khaiyum built.

But ask yourself: Who benefits from this sudden rush to legislate?

The Silence of the Coalition Partners

What’s equally alarming is the silence from the National Federation Party (NFP) and SODELPA, both of whom are enabling this manoeuvre. Neither has demanded broader consultation. Neither has warned against constitutional brinkmanship.

This silence speaks volumes. It suggests one of two things:

• They’re complicit in a pre-planned scheme; or
• They’re being outmanoeuvred by Rabuka and are too timid to resist.

Either way, the Fijian electorate is being kept in the dark.

What’s Coming at the Next Sitting?

The government has not released the Bill. We don’t know what provisions it touches. But if Rabuka is so confident that it’s “ready,” it’s reasonable to infer that the coalition’s constitutional objectives are already settled behind closed doors.

Time for Transparency

If Rabuka’s coalition government truly believes in democratic renewal, it must:

1. Publish the full draft Bill immediately;
2. Commit to meaningful national consultations;
3. Guarantee an independent oversight mechanism before any vote; and
4. Respect the referendum safeguards in the 2013 Constitution.

Otherwise, this is not a “review.” It’s a constitutional coup by stealth, similar to the judicial coup sprung up by the Supreme Court judges. Cry, The Beloved Country.