TOPIC

5
AMENDMENT,
SUSPENSION OR
REPEAL OF
CONSTITUTION
Should the principles of a constitution be capable
of change? If so how should they be changed? Or
should they be regarded eternal and
unchangeable?

Special procedures applied

Lawful
amendment

Lawful
suspension

Non-compliance with
procedures

Unlawful;
amendment

Written
constitution

Unlawful
suspension

Unlawful repeal
(abrogation)

Lawful
repeal

Topic 5 concept map

This map represents the core concepts that we will be
covering in this unit, and the relationships between them.

LW308: Constitutional Law

5.2

To p i c O v e r v i e w
In the last topic we looked at the formation of a constitution.
Constitutions normally have the attributes of some degree of
permanence. After all that is one of the reasons why they are brought
into existence. They are intended to set out some principles and
arrangements for the government of a country which will remain in
force for some time. In that way a constitution can be said to provide some ongoing
sense of stability and order in a country. For that reason also courts, as we will
see in due course, have been reluctant to depart from the terms of a constitution
even where there might be reasonable arguments to the effect that the principles set
out in the constitution are unfair or not entirely appropriate to current
circumstances. It is better, they say, to stick to existing principles of the constitution
than to seek to change them. There is, they say, some particular political wisdom
in that, even if it tends to be rather conservative.
In this topic we will look at ways in which constitutions can in fact be varied,
however limited those ways might be. Constitutions can become out of date and
rather remote from political reality. They might embody principles which are at
odds with the way in which the society and culture of a country has developed. In
any country there might be ways in which the terms of the constitution, especially
if drawn a long time ago, are out of touch in some way. Or, as we have seen in
Fiji recently, it is possible that some sectors of society might argue that the
written constitution, especially one adopted without their specific consent or
without what they see as sufficient consultation, never was adequate to society
and culture as they see it. Thus the demand for change.
It is politically prudent or sensible that the constitution itself should provide some
mechanism, which is also an outlet, for change. One often hears the demand, usually
in monolithic and strongly religious societies, to the effect that society must always
be governed according to the unchanging laws of God or of the Koran, the Torah
and so on. But these demands, on closer examination, are never met. Even rigidly
static conceptions of law governed societies such as these are subject to rampant
change at times. Thus the more appropriate political wisdom is to provide a
mechanism which allows for some degree of change within society. Just how much
is to be allowed is of course always a loaded and a difficult question which is likely
to produce a lot of disagreement.
Thus we will look here at the mechanisms for change of a constitution such as
they exist in the South Pacific countries. In other words, we will see how existing
constitutions, either as a whole or in their various parts (i.e. written constitution,
legislation, subsidiary legislation, common law principles and conventions) might
be either: (a) amended or changed; (b) suspended or put out of action
temporarily; or (c) repealed or cancelled or revoked

LW308: Constitutional Law

5.3

Topic Outline
1. Introduction
2. Written Constitution Amendment
3. Written Constitution Suspension
4. Written Constitution Repeal
5. Effect of non-compliance with Constitutional requirements for
amendment suspension or repeal of Constitution.
6. Conclusion

Learning Outcomes
Upon successful completion of this topic students will be able:
Describe the different methods by which a constitution, or the parts of
it, can be legally amended or changed;
Explain the principles relating to suspension of a constitution;
Identify the procedural requirements that commonly regulate
constitutional amendment; and
Analyse judicial decisions related to constitutional amendment and
suspension and extract relevant principles.

Checklist of Activities
To complete this topic you must:
1. Read the lecture notes;
2. Read the readings for this topic; and
3. Complete the activities.
Also you should make regular contributions to the Discussion Page. No need to
be shy or reserved! Share your views! Engage in discussions and learn
something!

LW308: Constitutional Law

5.4

Written Constitutions: Amendment

Every provision in every written Constitution in the USP region may be amended.
That is except for some provisions in the Constitution of Tonga and 2013
Constitution of the Republic of Fiji.
The Constitution of Tonga, article 79, states that the provisions relating to the law
of liberty, succession to the throne and the titles and hereditary estates of nobles
cannot be changed, but all other provisions of that Constitution can. In Fiji, the
Constitution provides that no amendment can ever be made to the provisions
relating to immunity (Chapter 10), amendment of Constitution (Chapter 11) or
the transitional provisions (Part D, Chapter 12).
All provisions of other Constitutions in the USP region can be amended. Most
usually, however, a special process is prescribed for such changes. These special
processes are designed basically to ensure that the amendments are made after
careful thought and after consultation with people likely to be affected outside the
legislature. Without these special procedures, particular political regimes in
power might be entitled to change a constitution at will and deliberately ensure that
they cannot be removed from power or establish discrimination for or against a
particular cultural group. This could spell a very quick end to effective democracy.
We will now examine in some more detail the special processes that appear in the
written constitutions of the USP countries. Before we do that, let's engage in an
activity.

Activity 5.1
From your own knowledge of South Pacific countries do you think that there would
be a danger of governments changing constitutions to suit themselves if there were
not special procedures that related to constitutional change? Consider that point for
a moment and share your view on it on the discussion page. If you are not from the
South Pacific then give us your views as regards your own country.
Clearly enough in some South Pacific countries particular
regimes have in fact attempted to do just this - i.e. to
manipulate the constitutional system of the country in order
to protect their own interests as a governing elite or perhaps
even to protect and advance the interests of a group which they
claim to represent.

Use Westlaw and Lexis

for your reading and
research

Note that sometimes government or rulers claim to represent

the interests of traditional rulers, not because they in fact
have their interests at heart (often they adopt rapid
modernization programmes for the country which are

Seek assistance from the

librarian

Go to the library
resources page online

destructive of traditional interests and social values) but because that is where
their support base lies.

LW308: Constitutional Law

5.5

Common constitutional change procedures

All of the written constitutions of the South Pacific are known entrenched
constitutions because all of them have special provisions which make it more
difficult to change the constitution than it would be to change ordinary
legislation.
There are effectively three main types of procedural requirements that are used in
various countries to regulate the process of constitutional change.

Types of constitutional change procedures

Procedures
requiring special
actions to be
taken inside the
parliament

-Special Majority
-Special Sectional
Support within
Legislature
-Special Term for
Consideration of
Amendments

Procedures that
involve formal
bodies outside
the parliament

Procedures that
require popular
support in the
community

A special body for

examining and
proposing
constitutional
change (a
constitutional
convention)

Referendum or
plebiscite

-Special Designator of
Bill for Amendment
-Special Report to
Legislature
-Special Certificate by
Speaker

We will now look at each of these kinds of procedural requirements in turn.

LW308: Constitutional Law

5.6

(a)

Special body to make amendments

Some countries require a special body to be formed to consider proposals for

constitutional change. These bodies are often called constitutional conventions.
Sometimes where such a process is not required by the constitution, it will still be
undertaken informally as away of gathering widespread support for change.
Many countries (such as Australia) used constitutional conventions in the process
of drawing up pre-independence constitutions. Some countries require such
bodies to be formed for any subsequent amendment.
The Constitution of Marshall Islands, Article XII, provides that amendments to
certain fundamental processes in the Constitution e.g. the bill of rights and the main
organs of government established by the Constitution, can be amended only by a
Constitutional Convention fairly representing the people of Marshall Islands
specially elected by qualified voters and containing at least 10 more members
than the legislature. The purpose of this is obviously to ensure that there is
widespread agreement throughout the community to the amendment or change in
question.
(b)

Special endorsement b y referendum

Some countries adopt their initial constitutions by referendum, and some

countries (Australia for example) require a referendum for any subsequent
constitutional change at all. The Constitution of Marshall Islands requires that all
amendments to the Constitution, whether they are made by a Constitutional
Conventions (article XII94) or by the legislative (article XII (31) must be
confirmed by a majority of voters cast at a referendum of all qualified voters. The
Constitution of Niue (article 35(1) (b) also requires that all amendments must be
supported by a referendum of electors.
The constitutions of some other countries require that amendments of certain
provisions of the constitution; i.e. those that are regarded as the most important,
must be conferred by referendum:
Cook Islands - the provisions relating to the Head of State (article 41(2));
Kiribati the process relating to fundamental rights (section 69(3));
Nauru - the provision specified in the schedule (article 84(3));
Samoa - the provisions specified; and
Vanuatu - the provision relating to the status of language, and the
electoral and parliamentary system (article 86).
The Constitution of Marshall Islands and that Vanuatu, and also Niue for most
amendments, require that the amendment be supported by a majority of voters.
However, the Constitutions of Cook Islands, Kiribati, Nauru (provision relating to
the Head of State and Public Service Commission) and Samoa require that the
amendments must be supported by a two-third majority of the voters.

LW308: Constitutional Law

5.7

Provisions requiring special procedures inside the

parliament
(c)

Special Majority

Some provisions permit amendment by a motion of the legislature by a special

majority (i.e. something beyond a simple majority of half plus one). The purpose
is to ensure that there is more support in that body for the amendment. Frequently
a two-thirds majority is required, but for the more fundamental provisions of the
relevant constitutions, a three-quarters majority may even be required.
The Constitution of Cook Islands (article 41(1) (a)), Kiribati (article 84 (2)(b), Niue
(article 35 (a)(I)), Samoa (article 109 (I), Solomon Islands (section 61(3), Tuvalu
(section 7(3), Vanuatu (article 85) require that an amendment to all, or in the case
of Marshall Islands, Solomon Islands, some, provisions, must be approved by
a two-third majority of the legislature.
In the case of Solomon Islands, some of the more fundamental processes of the
Constitution are stated to require a three-quarters majority in the legislature
(article 61(2)). In Fiji, section 160(2) requires votes of at least three-quarters of
the members of Parliament in the second and third readings.
On the other hand in the case of Tonga no special majority is required (clause 79),
and nor is any special majority required in Marshall Islands in respect of those
amendments that are required to be made by the Constitutional Convention
(article XII, section 4).
The sitting of the legislature at which the special majority must be present is
usually specified by the Constitution. In many countries the special majority must
be present at both the second and the third readings.
Cook Islands (article 41(1)(a)),
Kiribati (section 69(2)(b), and
Marshall Islands (article XII (2)).
In Samoa, (article 109(1), Tuvalu (article 7(3), and Solomon Islands (section
61(3)) the special majority is required only at the third reading, and in Nauru
(article 84(2) (b)) and Vanuatu (article 85) the Constitution does not specify at
which reading the special majority must be present.
(d)

Special Sectional Support within Legislature

The Constitution of Kiribati (section 124) provides that amendments to the

provisions relating to Banaban and the provision relating to the Banians in
Chapter X shall not be passed unless not only is there a two-thirds majority of the
legislative in support, but also neither the nominated nor the elected member
from Banaban votes against the amendment.
The purpose of requiring that an amendment to a Constitution must have the
support of a special of members of the legislative is to ensure that amendments
which affect their interests and the interests of those they represent, unless they
have agreed to that amendment.

LW308: Constitutional Law

5.8

(e)

Special Term for Consideration of Amendm ents

Some constitutional provisions expressly state that a bill to amend the relevant
constitution cannot be passed unless a certain period of time has elapsed. The
purpose of this is to ensure that members of the legislature have sufficient time to
think about the significance and implications of the proposed amendment and
also sufficient time to consult amongst themselves and the members of their
constituency. Also, a prescribed minimum period of time allows time for
members of the public to become aware of the proposal, to consider it and discuss
it, and make their views known about it, through the media and through their elected
representatives.
In Fiji (section 160 (2)(c) and Marshall Islands (article XII (3)) the period of 30
and 60 days respectively are required to elapse between first or second reading
and the third final reading of a bill to amend the Constitution, whereas in Cook
Islands (article 41(1)(b)) and Nauru (article 84(2)(a)) the longer period of 90 days
and in Niue (article 35(1)(a)(ii); a similar period of 13 weeks, is required. The
Constitution of Kiribati (section 69(2) (a)) requires deferral of the amending to
the next meeting of the legislature (Maneaba) and then passage by two thirds
majority. In Solomon Islands, Tonga, Tuvalu and Vanuatu there is no minimum
period prescribed for consideration of a proposed amendment to the constitution,
but in Solomon Islands (section 61(4)(a)) at least 4 weeks notice must be given to
the Speaker before introduction of such a bill.
(f)

Special Designator of Bill for Amendment

In some countries the constitution requires that a bill to amend the constitution must
be specifically expressed to be a bill to amend the Constitution. The purpose of this
requirement is to ensure that the Speaker and all members are fully aware that the
bill is proposing to make an alteration to the Constitution.
There is such a requirement in the Constitution of the Republic of Fiji (section
160(1), Solomon Islands (section 61(4) (b)) and in the Constitution of Tuvalu
(article 7(2)).
(g)

Special Report to Legislature

Occasionally it is thought desirable to require that amendment to certain provisions

of a written Constitution cannot be made unless a special report on the amendment
has been submitted to the legislative. The purpose of this requirement is to ensure
that members of the legislative have adequate material before them upon which to
make a discussion as to whether Constitution should be amended.
The Constitution of Fiji (1970, section 67(4), 1990, section 77(6), used to contain
such requirement with regard to amendments to the provisions establishing
particularly constituencies, and in the current Constitution, there is a requirement
under section 160(2)(d) that the third reading of the Bill in Parliament would not
take place until the relevant committee of Parliament has reported on the Bill to
Parliament.
The Constitution of Niue (articles 32, 33) requires that a bill which relates to the
public or customary land shall not proceed unless a report has been received from
the public commission as a commission of inquiry respectively. This requirement
relates to all bills and is not confined to those that amend the provisions of the
Constitution on these topics.
LW308: Constitutional Law

5.9

(h)

Special Certificate by Speaker

Some constitutions require that the Speaker must certify that the procedures
prescribed by the constitution for amending the constitution have been complied
with. The purpose of such a requirement is to ensure that the Speaker does
oversee that the requests procedures are followed, and also to provide comment
endorse as to whether these procedures have been followed.
The Constitution of Cook Islands (article 41(2) (d)), Marshall Islands (article XII
(3)) and Niue (article 35(1) (c) contain such a requirement.

Activity 5.2
You should now read the extract of the case Vohor v Attorney General that is
provided in the readings for this topic.
This is an extract of the case only; you may prefer to read the full case by accessing
it on the Paclii website at http://www.paclii.org/vu/cases/VUCA/2004/22.html
This case involves a challenge to the validity of a piece of legislation that purported
to change the Vanuatu constitution on the basis that all of the procedural
requirements for making such a constitutional change had not been met. The case
is useful because there are a number of procedural requirements involved and the
central question is whether they have all been complied with.
After you have read the case attempt to answer the following questions:
1. What was the purpose of the amending legislation? That is, what change
did it aim to bring about?
2. As the legislation aimed to change Vanuatus constitution was there any
requirement for a special parliamentary majority? Was this requirement
fulfilled?
3. Why was there uncertainty about whether a referendum was also needed?
4. Did the court find that a referendum was needed? Why or why not?
These questions test your case reading skills which are very important skills to
develop as a law student. Please make a serious attempt to answer this question
before referring to feedback.

Written Constitution - Suspension

In some constitutions of the USP region there are open provisions that authorise
the relevant constitution to be suspended (usually in the case of an emergency) (.i.e.
put temporarily out of operation). This is expressly provided for in the Constitution
of Fiji (section 191, 194 (6), Kiribati (section 69), Solomon Islands (section 61)
and Tuvalu (section7, schedule I).In other countries i.e., Cook Islands (article
41), Nauru (article 84) Niue (article 35), Samoa (article 109)

LW308: Constitutional Law

5.10

Tonga (clause 79) and Vanuatu (article 85) there is authorisation to amend the
constitution, but there is no open power to suspend it.

Activity 5.3
A case arose in Nauru in 2004 involving the use of such presidential powers. The
case is Kun v Secretary for Justice [2004] NRSC 2.
http://www.paclii.org/nr/cases/NRSC/2004/2.html

Now read Kuns case which is provided in your readings and attempt to answer
the following questions:
1. What action did the president take that led to this litigation?
2. On what basis did the president take this action?
3. Did the court appear to approve of the use the presidential powers in this
way?
4. Did the court uphold the Presidents use of the powers?
5. In what way did the court emphasise the limits of such a power?

Written Constitution - Repeal

Most Constitutions of the region contain a provision that authorises the
Constitution to be repealed under certain circumstances. Repeal means to
permanently revoke. Usually revocation only occurs in the context of the passage
of a new replacement constitution
Relevant provisions are:

Cook Islands (article 41),

Kiribati (section 69),
Niue (article 35),
Samoa (article 109),
Solomon Islands (section 61), and
Tuvalu (section 7, Schedule I).

On the other hand, the Constitutions of Marshall Islands, Nauru, Tonga and
Vanuatu contain no express authorisation for the repeal of constitution.

Effect of non-compliance with Constitutional

requirements for amendment suspension or
repeal of Constitution.
The written Constitutions of the USP region do not expressly state what is the
consequence or effect of a failure to comply with the requirements that are set out
in the Constitution with regard to the amendments, suspension or repeal of the
Constitution.
LW308: Constitutional Law

5.11

However, the general rule is that these requirements are mandatory or imperative
(i.e. they must be complied with) so that if they are not complied with then what
has been done is invalid and of no legal effect, and is void - it is invalidated. The
law that has been made to amend, suspend or repeal the Constitution is of no
effect in law, and the courts will not regard it as amending, suspending or repealing
the Constitution.
Thus in Bribery Commissioner v Ranasinghe the Privy Council held that the
Bribery Act 1958 that was passed by the Parliament of Ceylon and contained
provisions as to the appointment of members of Bribery Tribunals which were
inconsistent with the Constitution of Ceylon could not take effect as an
amendment to the Constitution of Ceylon, as claimed by the government of
Ceylon, because there as no certificate on it by the Speaker of the House of
Representatives that it has been passed by a 2/3 majority of that House as the
Constitution required in respect of amendments to the Constitution.
Exceptions
Whilst this is the general rule and applies in the majority of cases there are
exceptions to that rule which may arise occasionally and of which we should
therefore be aware, these are where the procedural requirements are seen (by the
courts) to be directory rather than mandatory in nature (meaning that non
compliance will not lead to automatic invalidity) or where the alleged breach is
not one that can be challenged in the courts, this is known as a non-justicable matter.

Directory Requirements
There may be an express statement in a written Constitution or any other written
law that non-compliance with certain requirements contained in it does not affect
the validity of what has been done. Thus section 113 of Constitution of Tuvalu
expressly provides that proceedings of Parliament shall be valid even though a
person not entitled to take part in those proceedings under the terms of the
provisions of the Constitution, did in fact take part.
Even if there is no such express statement the courts may imply that failure to
comply with a constitutional or statutory requirement, completely or substantially
or at all, should not render invalid what has been done. Such an implication is made
when that is believed to be in accordance with the purpose of the constitution or
statute.
A requirement that is expressed or implied not to require full compliance and to
require only substantial or partial or no compliance at all is usually described as
directory or non-invalidating. The word directory is used in this context as the
opposite of mandatory or imperative - the requirement is a direction only that
does not have to be fully complied with.
It is not often that provisions in a written constitution are implied to be directory
because the very fact that they are contained in a written constitution indicates
that they are regarded as important, and so should be complied with.
However, occasionally requirements in a written constitution have been implied
to be directory. An example is the provision in section 5 B(I) of the Constitution
of New South Wales which the High Court of Australia held in Clayton v Heffron

LW308: Constitutional Law

5.12

(1960) 105 CLR 214 was to be implied to be directory, section 5 B91) of the
Constitution of New South Wales provided that if a bill had been passed by the
Legislative Assembly ( elected lower House) but rejected by the Legislative
Council (nominated upper House) on two occasions, then "after a free conference
between managers" of both bodies there was still no agreement, the Governor could
summon a joint sitting of the Legislative Assembly and Legislative Council
together which could debate and approve the bill. A Bill designed to abolish the
Legislative Council was passed twice by the Legislative Assembly and rejected
twice by the Legislative Council, but the managers of the Legislative Council
refused to take part in a conference of managers with the manager of the Legislative
Assembly. The Governor then summoned a joint sitting at which the bill was
passed.
The High Court of Australia held that the requirement of a free conference of
managers before a joint sitting was held must be interpreted as directory because
to insist on full compliance would mean that the object of the section could
always be invoked and great public inconvenience caused by the Legislative
Council simply refusing to cooperate in a free conference of managers. Thus,
concluded the High Court, could not have been the purpose of section 5 B (1),
and so the requirement of a free conference of managers was held to be directory.
The fact that it had not been complied with did not invalidate what had been
done.
In the course of its judgment the Court said:
"In the end the distinction must be governed by the intention
expressed by the legislature conferring the power and prescribing
the steps to be taken in the course of its exercise.
Lawyers speak of statutory provisions as imperative when any
want of strict compliance with them means that the resulting act,
be it a statute, a contract or what you will, is null and void. They
speak of them as directory when they mean that although they are
legal requirements which it is unlawful to disregard, yet failure to
fulfil them does not mean that the resulting act is wholly
ineffective, or null and void. Is it possible to imagine a stronger case
of inconvenience than the invalidation perhaps at some future time
of a constitutional provision possessing all the outward appearances
of a valid law on the ground that when it was made managers of the
Council had not met managers of the Assembly before the members
of the two Houses were required by the Governor to meet?
For the foregoing reasons, assuming that s. 5B possesses force and validity, there
is no valid ground upon which it should be held that a fatal departure from its
requirements has occurred justifying the intervention of the Court." (at p248)
Another case where a provision of a constitutional nature, but on this occasion a
provision on legislation was not in a written Constitution, was held to be
directory is Simpson v Attorney-General [Ta 55] NZLR 271.
That case was concerned with section 101 (1) Electoral
Act 1927 of New Zealand which provided that a
warrant directing the issue of a writ for a general

5.13

election of parliament must be issued by the Governor-General not later than 7

days after the expiry of a parliament. In 1946 the parliament experienced on 11
October,1946 but the warrant was not signed by the Governor General until 6
November 1946 - about 21/2 weeks later than a requirement by section 101(1)
Electoral Act.
The Court of Appeal ruled that if the time requirements were read as mandatory
great public inconvenience would be caused, which presumably was not the
purpose of the Act. Accordingly, that the requirements as to the time for the issue
of the governor-general's warrant must be interpreted as directory, with the result
that the issuing of the warrant later than required by section 101(1) was not
unlawful.
In these kinds of cases the courts really try to balance the consequences of
invalidity against the object that the requirement was intending to achieve.
Clearly in Clayton v Heffron a conference of managers was only a step aimed at
improving communication between the houses of parliament, and the lack of such
a conference should not be read as invalidating a decision reached upon a combined
vote of both houses of parliament at a joint sitting. Similarly in Simpsons case, the
court saw the time limit on calling elections as directory and was not prepared to
invalidate an apparently fair election simply because of such a technical ground.

Non-justiciable requirements
As we have seen in an earlier Topic, some provisions in a written Constitution,
and indeed in any other law, may be expressed to be not enforceable (nonjusticiable) by a court, or this may be implied by a court from the nature of the
provision.
If a requirement is non-justiciable, or not enforceable by a court, then obviously a
court will take no account of whether it has been complied with or not, and the
fact that it has not been done without compliance with it.
Thus in Madhavan v. Falvey (1973) 19 Fiji LR 140 the Courts of Appeal of Fiji
held that no proceedings could be brought to test whether the Speaker of the House
was presiding at are particular session of the House as required by Article
57 (1) of the Constitution of Fiji, although it was alleged that in fact he had not
presided, but instead the Deputy Speaker had presided. Thus refusal to enforce
Article 57(1) was based upon the fact that the Court's view that Article 57(1) was
not justiciable, at least if the sitting did not affect the substantive rights of members.

Conclusion
Thus it can be seen that although normally the Constitutional requirements as to
the procedure to be followed for making amendments, suspensions and repeals of
constitutions should normally be followed exactly. If they are not followed, there
is no valid amendment, suspension or repeal. However, there are occasionally
situations where non-compliance will not invalidate what has been done.

LW308: Constitutional Law

5.14

Legislation and Subsidiary Legislation - Amendment,

Suspension and Repeal
As we have seen, in countries of USP region there is some legislation, subsidiary
legislation, principles of common law and equity, constitutional conventions and
custom which regulate some aspects of the government of the country and form
what is often described, somewhat misleadingly, as the unwritten constitution of
the country. Naturally these form a much larger part of the total constitution of a
country where there is no written Constitution, but even in countries where there
is a written Constitution they exist as part of constitutional law.
Legislation and subsidiary legislation which regulate part of the government of
countries in the USP region, may generally be amended, suspended or repealed in
the same way as any other legislation or subsidiary legislation or subsidiary
legislation. There is no special category of organic laws or constituent laws
relating to government, recognised in countries of the USP region, as there is in
some countries, e.g. Papua New Guinea, for which special procedures similar to
those for the amendment of a written Constitution are required.
However, as noted earlier in Fiji there are certain Acts of Parliament for which
the written constitution requires a special procedure for amendment. These Acts
are named in section 185 of the Constitution of Fiji, and include the Fijian Affairs
Act, Native Lands Act, Rotuma Act and Banaban Settlement Act, which may all
be regarded as part of the unwritten constitution of Fiji. No amendment may be
made to these Acts unless it is supported by a majority of all members of each
House of Parliament and by 9 out of the 14 members of the Senate who are
nominated by the Bose Levu Vakaturaga.
(c)

Principles of Common Law and Equity

Principles of common law and equity which regulate the government of countries
of USP region may also be changed suspended or abolished in the same way as
other principles of common law or equity i.e. by legislation, subsidiary legislation
or decisions of higher courts. No special procedures are required because the
principles relate to matters of government, and are part of the constitution of the
country.
(d)

Constitutional Conventions and Customary Laws

Likewise, conventions and customary laws that relate to government may be

changed, suspended or terminated in the same way as other conventions or customs
i.e. by the decisions and actions of those who are called upon to decide whether or
not they will follow these conventions or recognise those practices as customs.
There are no special requirements to be followed because these relate to the
government of the country, and are part of the constitution of the country.

LW308: Constitutional Law

5.15

Amendment, Suspension or Repeal of

Constitution by British, Australian or New
Zealand Parliaments
Sometimes the question has been posed as to whether the British, Australian or
New Zealand Parliaments could intervene in the affairs of the countries in the
USP formerly subject to them, and make amendments to the constitutions of
those countries or suspend or repeal them. The question, however politically remote
the possibility might appear to be, has been given some basis by the theory
of legislative sovereignty adopted by the English courts with regard to the
Parliament of the United Kingdom.
Under the English common law the Parliament, originally of England and now of
the United Kingdom, is regarded as having power to make laws on any topic and
applying to any part of the world. The United Kingdom Parliament has a legislative
supremacy which is not confined to topic or to country. This theory of legislative
supremacy is described by Wade and Phillips Constitutional Law (6th ed., 1962)
p.44, on follows:
"Legislative supremacy means that the validity of an Act of Parliament cannot be
questioned by the courts which are bound to accept as law the validity of all
parliamentary enactment. If Parliament made it a criminal offence for a
Frenchman to smoke in the streets of Paris, the Act would not be enforced by the
French courts, but an English court could enforce it against a Frenchman who came
to this country and was prosecuted under it."
This principle of the legislative supremacy of the United Kingdom Parliament
was discussed by the Privy Council in 1933 in relation to section 4 of the Statute
of Westminster 1931 which provided that no Act of the Parliament of the United
Kingdom would apply to a dominion unless it was expressly stated in that Act
that the dominion had requested and consented to the enactment of that Act. The
question was discussed as to whether the United Kingdom could repeal that
Statute and continue to legislate for a dominion such as Australia, New Zealand
or Canada:
"It is doubtless true that the power of the Imperial Parliament to pass on its own
initiative any legislation that it thought fit extending to Canada remains in theory
unimpaired; indeed, the Imperial Parliament could, as a matter of abstract law,
repeal or disregard s4 of the Statute. But that is theory and has no relation to
realities" British Coal Corporation v The King (1935) AC 506
It would therefore be theoretically possible under English law for the Parliament
of United Kingdom to pass legislation, which would amend, suspend or repeal
the constitutions of any of the countries in the USP region. But, as the Privy
Council observed, this has no relation to reality, and it is highly unlikely indeed
that the United Kingdom Parliament would take such a course. There was no
indication, for example, that it would do so after the military coups in Fiji in 1987
and in 2000 and it is difficult to imagine a situation where such a course would be
contemplated by a British Government.
Moreover, even if the Parliament of the United Kingdom did pass legislation to
apply in a country of the USP region, there would be the further question of

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5.16

whether it would be enforced by the courts of that country, as was pointed out in
the extract, from Wade and Phillips, Constitutional Law, referred to above.
Whether the Australian Parliament, has any power to pass legislation to apply to
Nauru, which is now an independent country of the USP region, seems very
doubtful. For the Constitution of Australia provides that the Parliament of that
country shall have power to make laws "for the peace, order and good
government of Australia". This phrase has been considered by the High Court of
Australia to give the Parliament power to make only such laws as have a substantial
connection with the country, and not laws which are substantially for some other
country.
In Trustee Executors and Agency Co Ltd v Federal Commissioner of Taxation
(1933) 40 CLR 220 Evatt J, of the Australian High Court, said 237:
"The presence of non territorial elements may call attention to the necessity of
inquiring whether the challenged law is truly a law with respect to the 'peace
order and good government' of the Dominion. The test is whether the law in
question does not, in some aspects and relations, bear upon the peace order and
good government of the dominion, either generally or in respect to specific
subjects. If it does not bear any relation whatever to the Dominion, the Courts must
say so and declare the law void. If it bears any real or substantial relation, then it
is a law for the peace, order and good government of the Dominion."
Thus it could be argued that the principle of unlimited legal supremacy that
applies to the Parliament of the United Kingdom does not apply to the Parliament
of Australia and that Parliament would not have legal power to pass laws to amend,
suspend or repeal the constitution of another independent country in the South
Pacific, such as Nauru. The question would also not arise with regard to the New
Zealand parliament as against Cook Islands and Niue likewise as both countries
are technically self-governing though not independent.
However, as with regard to legislation by the Parliament of the United Kingdom,
there would always be the question of whether legislation passed by the
Australian or New Zealand Parliament, to amend, suspend or repeal the constitution
of any country in USP region, would be applied and enforced by the courts of the
country to which it was applied. This is a question, which, as the above extract
from Wade and Phillips Constitutional Law assumed, would be likely to be
answered in the negative.

LW308: Constitutional Law

5.17

Key Terms and Phrases

Make sure you understand the meaning of these words and phrases appearing in
the text. Use the online dictionary as necessary.
Suspension

Usually refers to a situation or process in which the

constitution ceases to operate for a temporary period.

Revocation

Usually refers to a process where a constitution ceases

to operative permanently. Usually this is associated
with the promulgation of a new constitution to replace
an older one.

Amendment

Changes to the text of a constitution by way of

legislative enactment.

Referendum

Process in which a constitutional change proposal is

put to a general vote to seek the approval of a majority
of electors.

Non-justiciable

Some provisions in constitutions may not be

enforceable in the courts, these are known as nonjusticiable provisions

Directory
requirements

Provisions which direct that certain procedures should

be complied with, but that do not invalidate a noncompliant action.

Mandatory
requirements

Provisions which must be complied with, failure to

observe these will invalidate the action.

Special designator

A requirement that all constitutional change legislation

refers to its constitutional character in the bills name.

Sovereignty

The particular right that a country has to manage its

own affairs without interference from other countries.

Simple majority

A requirement for a majority of 50% plus one.

Special majority

A requirement for a higher majority such as 2/3 or .

Invalidation

When the court orders that a purported action has

breached the constitution and is invalid.

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5.19