*Should a former Chief Justice be encouraging the political branches of government to disregard the constitutional guidance of the country's highest court?
*A former Chief Justice is expected to be an unwavering defender of constitutionalism, judicial independence and the rule of law. For that reason, his suggestion that Cabinet could reject the Supreme Court's constitutional opinion and move directly towards replacing the Constitution is likely to generate considerable debate within Fiji's legal community.
*This is the same former Chief Justice who, following the 2006 coup, accepted $275,000 settlement from the post-coup regime and withdrew his legal challenge to his removal from office. Those events form part of the public record. Today, in his submission to the Constitution Review Commission, he argues that Cabinet may disregard the Supreme Court's advisory opinion on the 2013 Constitution. Readers are entitled to assess the significance of those facts for themselves. |  |
Former Chief Justice Daniel Fatiaki's Constitution Review Commission Submission Raises Serious Questions About the Rule of Law
Former Chief Justice Daniel Fatiaki, in his submission to the Constitution Review Commission (CRC), advanced one of the most controversial legal arguments in the current debate over Fiji's constitutional future.
According to Fatiaki, the Supreme Court's Opinion of 29 August 2025 on the 2013 Constitution is advisory only and is not binding on Parliament or Cabinet. He argued that:
On that basis, Fatiaki suggested that the Government could establish a body to draft a new Constitution, exclude the constitutional immunity provisions, and hold a general election under the new constitutional order.
His recommendation regarding immunity was equally direct. He argued that the immunity chapter should simply be removed from the Constitution altogether and, if immunity is considered necessary, Parliament could enact an ordinary Immunity Act instead.
Those submissions undoubtedly raise legitimate constitutional questions worthy of debate.
However, they also raise a much larger question.
Should a former Chief Justice be encouraging the political branches of government to disregard the constitutional guidance of the country's highest court?
There is nothing unusual about constitutional lawyers disagreeing over the interpretation of a constitution. Courts themselves frequently revisit earlier decisions. But there is an important distinction between criticising judicial reasoning and suggesting that the Executive and Parliament may simply ignore the Supreme Court's constitutional opinion whenever it proves inconvenient.
Even if one accepts Fatiaki's proposition that the opinion is technically advisory, it does not automatically follow that Parliament is free to bypass the Constitution currently in force. The Government remains subject to the Constitution until it is lawfully replaced.
There is also an obvious constitutional paradox.
Fatiaki argues that the Supreme Court's opinion binds only the courts. If the Government were to ignore that opinion and proceed to adopt an entirely new Constitution outside the existing constitutional framework, any legal challenge would inevitably return to those very courts. Those courts, by Fatiaki's own reasoning, would be bound to apply the Supreme Court's constitutional interpretation when determining the legality of the Government's actions.
The question of constitutional immunity presents a similar distinction. Whether immunity ought to remain in the Constitution is a legitimate matter for public debate. Many constitutional scholars oppose entrenched immunity clauses on rule-of-law grounds.
But the method by which immunity is removed is every bit as important as the objective itself. Constitutional reform must itself be constitutionally lawful.
What makes Fatiaki's submission particularly significant is not simply the substance of his legal arguments but the office he once held. A former Chief Justice is expected to be an unwavering defender of constitutionalism, judicial independence and the rule of law.
For that reason, his suggestion that Cabinet could reject the Supreme Court's constitutional opinion and move directly towards replacing the Constitution is likely to generate considerable debate within Fiji's legal community.
If Fiji is to replace the 2013 Constitution, it should do so through a process whose legality is beyond dispute. Otherwise, the country risks creating yet another constitutional controversy in a nation that has already experienced repeated constitutional ruptures since 1987.
That is why Daniel Fatiaki's submission to the Constitution Review Commission deserves close scrutiny. It is not merely another opinion in the public debate. It is the considered view of a former Chief Justice, and for precisely that reason it demands the most rigorous legal examination.
Former Chief Justice Daniel Fatiaki, in his submission to the Constitution Review Commission (CRC), advanced one of the most controversial legal arguments in the current debate over Fiji's constitutional future.
According to Fatiaki, the Supreme Court's Opinion of 29 August 2025 on the 2013 Constitution is advisory only and is not binding on Parliament or Cabinet. He argued that:
- the Supreme Court's opinion is advisory rather than determinative;
- it binds only the courts and not Parliament or Cabinet;
- section 91(5), which empowers Cabinet to seek the Supreme Court's opinion on constitutional questions, is "an aberration" because it places the Court outside its normal appellate function;
- because the opinion was delivered under the Court's original jurisdiction rather than its appellate jurisdiction, it should not be treated as equivalent to a final judgment;
- Cabinet is legally entitled to reject the opinion because it is merely an opinion; and
- section 98 of the 2013 Constitution makes only Supreme Court "decisions" binding on other courts and says nothing about advisory opinions.
On that basis, Fatiaki suggested that the Government could establish a body to draft a new Constitution, exclude the constitutional immunity provisions, and hold a general election under the new constitutional order.
His recommendation regarding immunity was equally direct. He argued that the immunity chapter should simply be removed from the Constitution altogether and, if immunity is considered necessary, Parliament could enact an ordinary Immunity Act instead.
Those submissions undoubtedly raise legitimate constitutional questions worthy of debate.
However, they also raise a much larger question.
Should a former Chief Justice be encouraging the political branches of government to disregard the constitutional guidance of the country's highest court?
There is nothing unusual about constitutional lawyers disagreeing over the interpretation of a constitution. Courts themselves frequently revisit earlier decisions. But there is an important distinction between criticising judicial reasoning and suggesting that the Executive and Parliament may simply ignore the Supreme Court's constitutional opinion whenever it proves inconvenient.
Even if one accepts Fatiaki's proposition that the opinion is technically advisory, it does not automatically follow that Parliament is free to bypass the Constitution currently in force. The Government remains subject to the Constitution until it is lawfully replaced.
There is also an obvious constitutional paradox.
Fatiaki argues that the Supreme Court's opinion binds only the courts. If the Government were to ignore that opinion and proceed to adopt an entirely new Constitution outside the existing constitutional framework, any legal challenge would inevitably return to those very courts. Those courts, by Fatiaki's own reasoning, would be bound to apply the Supreme Court's constitutional interpretation when determining the legality of the Government's actions.
The question of constitutional immunity presents a similar distinction. Whether immunity ought to remain in the Constitution is a legitimate matter for public debate. Many constitutional scholars oppose entrenched immunity clauses on rule-of-law grounds.
But the method by which immunity is removed is every bit as important as the objective itself. Constitutional reform must itself be constitutionally lawful.
What makes Fatiaki's submission particularly significant is not simply the substance of his legal arguments but the office he once held. A former Chief Justice is expected to be an unwavering defender of constitutionalism, judicial independence and the rule of law.
For that reason, his suggestion that Cabinet could reject the Supreme Court's constitutional opinion and move directly towards replacing the Constitution is likely to generate considerable debate within Fiji's legal community.
If Fiji is to replace the 2013 Constitution, it should do so through a process whose legality is beyond dispute. Otherwise, the country risks creating yet another constitutional controversy in a nation that has already experienced repeated constitutional ruptures since 1987.
That is why Daniel Fatiaki's submission to the Constitution Review Commission deserves close scrutiny. It is not merely another opinion in the public debate. It is the considered view of a former Chief Justice, and for precisely that reason it demands the most rigorous legal examination.
